61 P. 272 | Cal. | 1900
At the close of plaintiff's testimony the court on motion of defendants granted a nonsuit, and judgment was accordingly entered. This appeal is from the judgment.
The plaintiff is the son of defendant Maria de Jesus Alvarado de Sepulveda and of Juan Maria Sepulveda, her deceased husband, and is a brother of the other defendants. The father of plaintiff, Juan Maria, died prior to 1872, leaving an interest in certain real estate in the name of his brother Jose del Carmen de Sepulveda. Early in 1872 the real estate was sold by Jose del Carmen and the portion of the proceeds of the sale due to the widow and children of Juan Maria, deceased (the parties to this suit), was eight thousand dollars. After Jose del Carmen de Sepulveda sold the property he desired *662 to leave the state for a time, and he called defendant Maria, the widow of his deceased brother, and said to her: "Sister, I am going to Sonora and I want to leave you this eight thousand dollars so you will take care of my brother's little children." The money was paid to said Maria, or her agent, and Jose said: "Now my sister in law is safe. I go away and she have enough money to support the little ones." This money so left to Maria, the widow of Juan, has been from time to time invested and the real estate and property described in the complaint has been purchased with the said eight thousand dollars and its income. The said Maria raised and cared for her children, including this plaintiff, and also made such frugal use of the money as to preserve the original capital and increase it in investments. It seems that some question had been raised about the title or right of defendant Maria to the proceeds of the eight thousand dollars and to the title to the property purchased with it. Accordingly, in August, 1887, this plaintiff and all the other defendants, except Maria, joined in a deed to their mother, Maria, of all the estate and property of every kind and all claim to the estate of their deceased father, Juan Maria de Sepulveda.
It is alleged in the complaint that plaintiff joined in the execution of this deed, but it was obtained without consideration and by means of fraud and undue influence.
We think the motion for nonsuit was properly granted. The evidence offered by plaintiff does not even tend to show any fraud or undue influence connected with the execution of the deed. Francisco, the brother of plaintiff, testified that in 1883 or 1884 the plaintiff agreed to and did make a deed of his interest in the property for one hundred and fifty dollars. That witness paid him the money, procured the deed, and gave it to their mother, Maria. In regard to the deed of August, 1887, the witness was asked: Q. What representations, if any, or what influence did your mother use or exercise to induce you to make the deed of 1887? A. None. We all agreed to give mother this deed to all this property.
The plaintiff, in order to avoid the statute of limitations, alleged discovery of the fraud and undue influence within two *663 years. The evidence shows that plaintiff knew all the facts he ever knew in 1887, some ten years before the suit commenced.
The judgment should be affirmed.
Haynes, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed.
Van Dyke, J., Harrison, J., McFarland, J.
Hearing in Bank denied.
