Kiener v. Hood

• Decision Date: 14 September 1923
• Docket Number: 17142.
• Parties: KIENER v. HOOD et al.
• Court: Washington Supreme Court

218 P. 1

126 Wash. 431

KIENER v. HOOD et al.

No. 17142.

Supreme Court of Washington

September 14, 1923

Department 1.

Appeal from Superior Court, Skagit County; Augustus Brawley, Judge.

Action by Emily Kiener against Etta Olson Hood and others. From an adverse judgment, plaintiff appeals. Affirmed.

Shrauger & Henderson, of Mt. Vernon, for appellant.

J. C Waugh, of Seattle, for respondents.

MAIN, C.J.

The plaintiff brought this action to cancel and set aside a deed executed and delivered by her to the defendant Etta Olson Hood on the 16th day of September, 1916, whereby the plaintiff conveyed to Mrs. Hood a tract of land containing about five acres in Skagit county. By the deed the plaintiff retained a life interest in the property. The cause was tried to the court without a jury, and resulted in a judgment dismissing the action, from which the plaintiff appeals.

At the time the deed was executed the appellant was residing in the state of Missouri, and the respondent Mrs. Hood, her daughter, had been visiting her for a period of about ten days. Shortly after the deed was executed Mrs. Hood returned to the state of Washington, and she and her husband went into possession of the property, cleared a portion thereof, and otherwise improved it. In July, 1919, the appellant came to this state, and made her home with the respondents, who resided upon the property. In March, 1921, the present action was begun to set aside the deed, alleging that it was obtained without consideration, and by means of undue influence, duress, misrepresentation, and fraud. The respondents denied the charges of the complaint, and pleaded affirmatively the statute of limitations. Some time during the fall of the year 1919, the same year in which the appellant came to this state, Charlie Kiener, one of her sons, and a brother of Mrs. Hood, came, and he, also, resided with the respondents. As testified by one witness, the family trouble began when this brother became a member of the family, or soon thereafter.

From the facts stated it appears that the deed was given more than four years prior to the time that the action was instituted. An action upon any of the grounds stated must be brought within three years after the events happened, with the exception of relief on the ground of fraud which may be brought within three years after discovery by the aggrieved party of the facts constituting the fraud. In Morgan v. Morgan, 10 Wash. 99, 38 P. 1054, it was held that an action to set aside a deed on the ground that it was fraudulently obtained that was without consideration must be brought within three years. Rem. Comp. Stat. § 159. This reduces the question practically to...