Butler v. Carvin

Citations

• 33 Wash. 621
• 74 P. 813
• 1903 Wash. LEXIS 563

Syllabus

<p>Deed—Fraud—Undue Influence—Life Estate—Pleadings— Variance—Findings Outside the Issues. In an action to set aside a deed absolute on its face upon the ground of undue influence and coercion, in which the answer and the reply raise the further question whether the deed was intended as a mortgage to secure repayment of advances, a finding of fact that the deed was given under an agreement that the grantor should retain a life estate in the premises is not warranted by the issues presented or tried, and the variance is not such as is obviated by an amendment deemed to have been made.</p> <p>Same—Inconsistent Findings. In such an action, the finding that the grantor retained a life estate is inconsistent with a finding that the deed conveying a fee simple was voluntarily executed without any threats or coercion and with full knowledge of its purport, and is not warranted by evidence tending to show that the deed was given on account of large advances made, and that the parties contemplated living together on the property.</p> <p>Same—Deed Intended as a Mortgage — Pleading—Issues Raised by Answer and Reply—Foreclosure. In an action to set aside a deed upon the ground of undue influence and coercion, where the answer alleges that the conveyance was made to defendants in consideration of money loaned to plaintiff to pay the purchase price and improve the property, and prays that if the deed be construed as a mortgage, the amount due be ascertained and the same be foreclosed, and issue is joined thereon by the reply, a decree of foreclosure is within the issues, and sho.uld be awarded where the evidence justifies such conclusion.</p> <p>Same—Evidence—Admission in Bbiee. Where the appellants* brief shows a willingness to treat their absolute deed as a mortgage, foreclosure thereof will be decreed by the supreme court, although the evidence tends to show an absolute deed between members of a family, made to discharge an equity for large advances on the purchase price and i