Opinion
File No. 8662.
Opinion filed March 22, 1944.
Rehearing Denied April 25, 1944.
1. Appeal and Error.
In absence of a clear preponderance of evidence against any material finding of trial court, findings must stand.
2. Cancellation of Instruments.
As respects laches, cause of action of vendor's granddaughter to set aside deeds to vendor's son as procured by undue influence did not accrue until death of vendor, notwithstanding that granddaughter knew of deeds three years before vendor's death.
3. Equity.
A plaintiff cannot be adjudged guilty of laches for failing to proceed before cause of action accrued.
4. Appeal and Error.
Where record failed to support inference that vendor's granddaughter failed to act with reasonable diligence after her cause of action to set aside deeds to vendor's son accrued, or that son suffered detriment by reason of granddaughter's short delay, error of court in failing to find on issue of laches was not prejudicial.
Appeal from Circuit Court, Lincoln County; Hon. John T. Medin, Judge.
Action by Ruth Beadle against Elmer N. Tullar to set aside certain deeds by father to son on ground that they were procured by undue influence. Judgment for plaintiff, and defendant appeals.
Affirmed
Henry C. Mundt, of Sioux Falls, for Appellant.
Danforth Danforth, of Sioux Falls, and Claude A. Bennett and Carl K. Anderson, both of Canton, for Respondent.
The judgment of the trial court, setting aside deeds by a father to a son on the ground that they were procured by undue influence, is challenged upon the principal ground that the evidence is insufficient to sustain the findings of the trial court. The record has been carefully reviewed and we have concluded that it cannot be said that there is a clear preponderance of the evidence against any material finding of the trial court, and that, therefore, the findings must stand. Norway-Pleasant Telephone Co. v. Tuntland, 68 S.D. 441, 3 N.W.2d 882.
The further point is made that the trial court failed to find on the issue of laches of the plaintiff.
[2-4] The deeds were made and delivered in 1936. Plaintiff, a granddaughter, knew of the deeds in 1937. The grantor died in 1940. This action was commenced in April of 1941. A cause of action did not accrue to plaintiff until the death of her grandfather. 18 C.J. 245; 26 C.J.S., Deeds, § 69. Manifestly, plaintiff could not be adjudged guilty of laches for failing to proceed before her cause of action accrued. See Pratt v. Pratt, 96 U.S. 704, 24 L.Ed. 805. The record fails utterly to support an inference that plaintiff failed to act with reasonable diligence after her cause of action accrued, or that defendant suffered any detriment by reason of the indicated short delay in instituting this suit. Thus it is made to appear that the error of the court in failing to find on this issue is without prejudice to defendant, and that reversal because of this harmless error is unwarranted. 5 C.J.S., Appeal and Error, § 1790, at page 1200.
The judgment and order of the trial court are affirmed.
All the Judges concur.