[No. 7233.

Decided June 1, 1908.]

#### James W. Goodrich, *Respondent,*v. Rebecca Kimble *et al.,*Appellants.1

New Trial — Newly Discovered Evidenoe. A new trial for newly discovered evidence is properly denied where no diligence was shown.

Appeal — Review—New Trial — Discretion. The refusal of a new trial, asked on the ground of newly discovered evidence, will not be reviewed where no abuse of discretion appears.

Cancellation of Instruments — Competency—Undue Influence ■ — Evidence—Sufficiency. The evidence is insufficient to warrant the cancellation of a deed on the ground of incompetency of the grantor, about seventy-three years of age, and because of undue influence, where it appears that the property, valued at $600, was deeded in consideration of an agreement by the grantee to pay $50 per year as long as the grantor lived, which was paid for nine years without complaint made by the grantor or any of her children with whom she lived most of the time, and she appears to have been competent to transact business and no advantage was taken of her.

Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered July 15, 1907, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to enjoin the defendants from trespassing and committing waste upon real property -

Affirmed.

*E. W. Howell,*for appellants.

*Million, Houser*& *Shrauger,*for respondent.

1

Reported in 95 Pac. 1084.

Mount, J.

The respondent brought this action to enjoin the appellants from trespassing and committing waste upon certain real estate. The answer of the appellants consisted of certain admissions and denials, and also of a cross-complaint by which it was alleged, that appellant Rebecca Kimble deeded the land in question to respondent in the year 1898; that at the time of making the deed she ivas by reason of old age *517incompetent to make the deed; that the consideration therefor was inadequate; that the title to the land was obtained from her by the respondent through fraud, undue influence, and deceit; and prayed for a cancellation of the deed. These allegations were denied by the answer. The cause was tried to the court without a jury, and at the conclusion of the trial the court found in favor of the plaintiff and against the defendants, and entered a judgment accordingly. Thereafter the defendants moved for a new trial upon the ground of newly discovered evidence, which motion was denied.

The first error assigned is that the court erred in denying this motion. There is no showing of diligence by the appellants. The action of the trial court in matters of this kind rests largely within the discretion of the court, and is reviewed only for abuse thereof. Since no abuse of discretion appears, there is no merit in the assignment.

It is next argued that the trial court should have set aside the contract between the respondent and Rebecca Kimble, because of the incapacity of the latter, and also because the respondent permitted the land to become incumbered with tax liens. It appears that Rebecca Kimble obtained title to the land in question, amounting to twenty-five acres, in the year 1897. It was then worth about $600. She Avas then about seventy-three years of age. She agreed to and did, on January 13, 1898, deed the land to the respondent for a consideration of $50 per year, to be paid to her on the first day of January of each year as long as she should live. After the deed was made and after the first paj'ment, she selected the acre of ground, and respondent erected at his OAvn expense a small dAvelling thereon satisfactory to her. She occupied the house for tAvo or three years, and then went to the state of Ohio where some of her children Avere liAÜng. She remained there until 1907, Avhen she returned to this state, and immediately sought to rescind the contract for the reason that $50 per year Avas not sufficient to support her. At the time she entered into the contract with respondent, he Avas married to *518her granddaughter. The respondent has regularly, since the' year 1898, paid the $50 per year, and has improved the property. There is some evidence to the effect that Mrs. Kimble had odd notions and was not competent to transact business. But the great weight of the evidence convinces us that she was competent to enter into the contract at the time it was made, and that no advantage was taken of her. She had several grown childi'cn who helped to support her both here and in Ohio. They knew of the contract after it was made. She enj oyed the benefits of the contract for nine years, and no complaint was made by her or any of the children that the contract was inequitable. They evidently supposed the contract was a fair one, until recently when the land became more valuable. It is true, there were delinquent taxes against the land at the time the action was begun, but these were paid off by the respondent before the time of the trial. An examination of the whole record convinces us that the judgment of the trial court ivas right.

It is therefore affirmed.

Hadley, C. J., Dunbar, Root, Fullerton, Rudkin, and Crow, JJ., concur.