Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-02-24
OPINIOS-BY MASSEY. J.

OPINIOS-BY MASSEY. J..
The appellant sought by this action 10
have cancelled and set aside a certain
deed 10 real estate situated in Washoe
County, made by him to the respondent
who is his wife, the execution of which
is claimed to have been obtained by fraud
and undue influence.
1t is shown by the complaint briefly
stated, that the parties were married on
the 9th day of May, 1888, and ever since
have been and were at the commence
ment of the action husband and wife;
that they lived and cohabited together as
husband and wife until about the first
day of October, 1896; that there were born
of said marriage five children, all of
whom are living: that on the last named
date the respondent without any just
cause or reason abandoned the appellant,
taking with her the said children; that
thereafter she instituted proceedings to
obtain a divorce upon the grounds of al
legged cruelty; that the appellant thereby
became greatly disturbed and agitated in
mind, and feeling that there was no just
reason for said proceedings, and that the
same would be disgraceful to themselves
and their children and result in injury to
their children, and believing it would be
for the best interest of all concerned that
the family should be reunited made over
lures to the respondent for that purpose;
that it was claimed by the respondent
that many of their domestic troubles had
been caused by difficulties over money
matters and the use of vulgar and pro-
fame language towards the respondent
and their children; that the effort to ad-
just these domestic troubles resulted in
certain agreements and promises made
with perfect trust and confd ence to the
effect that the respondent should aban-
don the divorce proceedings instituted,
the family should again be reunited, all
past differences between them should be
forgotten, each should work faithfully to
promote the happiness of all, and that the
appellant should convey the property in
controversy to the respondent for the
benefit and support of the family; that
pursuant to such adjustment the appel
liant executed to the respondent the prop
erty iii controversy on the 4th day of No
N6illbcl, IoJD, lIldl IG CONSIDERATION re-
cited i'll the conveyance was one dollar
was not in fact a consideration therefor
and I'D money was paid or intended to be
paid as a consideration of such convey
ance; that the property conveyed by the
deed constituted all the community prop
erty and a portion of the separate prop
erty Of the appellant. 1t is further shown
by the complaint, that the responder
failed 20 keep the promises made by rea
son Of which appellant was induced t.
make such conveyance; that after the re
%spondent had returned with their chill
dren to appellants nome, the appellan
had eudeavOred to keep his promises ex
cept i'll certain instances; that the respor
dent after her return had conducted he,
ST III a most provoking name and i
such a way as to try the appellants pr
thence, frequently beyond endurance
n certain specified actions of pervers,
ness are So out which are claimed to be
direct violation of respondents prom
Uses, and proof that same were made
bad faith.
That on the first of September, 1Se
without any cause, the respondent aga
deserted the plaintiff, taking with h
their children, and instituted in col
junction with her brother an unwa
rantsd criminal prosecution, and on tt
4th Of September, 1897, again institute
divorce proceedings upon the allegt
ground of extreme cruelty, which in ia
did not exist, and demanded judgme
for a dissolution Of the bonds of ma
rage. the care. custody and control Of t
children, and the personal property /
longing to the appellant. A copy Of t
deed is annexed to the complaint a.
made q part Of the same. To this col
plant the defendant by answer entered
denial: trial was had, and the court &
cided that under the pleadings and t
proof. the appellant was not entitled tx
decree cancelling the deed upon any
the grounds alleged. A motion for a n,
trial was intsrposed by the appellant, t
same was submitted to the court upon
statement, n denied. Thereupon
appellant appealed from the judgm,
and from the order denying the mott
for q new trial. The error assigned a
discussed by counsel for appellant in
brief is that the decision and judgm
Of the court are not supported by and
contrary to the evidence. and are contr1
to the law.
1t will be observed that the right Of
appellant to recover in the action is ba
upon the actual fraud of he respond
in making the agreement and prom
for the adjustment Of their dome
troubles which were claimed to be
sole consideration of the conveyance,