79 P. 268 | Cal. | 1904
This is an appeal from a judgment entered in favor of the defendant upon the judgment-roll. The action is to quiet title to a strip of land described as lots numbers *591 55 and 56 in block Q of the Santa Monica Commercial Company tract, in the town of Santa Monica.
The court below found that the plaintiff and Maurice Baillarge were husband and wife at the time the said Santa Monica Commercial Company conveyed the premises in dispute to the plaintiff as her separate estate in 1893.
On August 7, 1897, the plaintiff and her husband went before a notary public in Santa Monica to draw their wills, when, upon representations of the notary in reference to the expense of probating a will, they concluded to have mutual deeds executed, one to the other, of the tract of land including the premises in controversy. Thereupon, deeds in the form of grant, bargain, and sale, for a nominal consideration, were prepared and executed, the one to the other. After said deeds were signed and acknowledged, the one in which the plaintiff was grantee was handed to her by the notary, and she thereupon gave the notary the deed and directed him to place the same on record, and the deed executed by plaintiff to her husband, after being acknowledged, was by the notary thereupon immediately handed back to the plaintiff. Two days thereafter, on August 9th, plaintiff departed from Los Angeles County, and went to the dominion of Canada. Prior to her departure she had packed two trunks, in one of which she had placed the deed from herself to her said husband, together with articles of wearing apparel, and gave said trunks to her husband to be checked as baggage, but on account of excess in weight he checked only one of said trunks, leaving the one in which said deed had been placed. And during the time that the plaintiff was on a visit to Canada, Maurice Baillarge, without her knowledge or consent, took the deed of plaintiff to him from the trunk, and, claiming to be the owner of the property therein described, on September 9, 1898, for a valuable consideration, conveyed the property mentioned in the complaint to one W.F. Nordholt; that thereupon said Nordholt filed said deed so executed to himself, and also the deed from the plaintiff to his grantor, Maurice Baillarge, (which had not prior thereto been recorded,) for record in the county of Los Angeles. The said Nordholt did not search the records or cause the records of said county to be searched, and made the purchase solely upon the representation of said Maurice Baillarge that he was the owner of said property. Thereafter, *592 on October 26, 1898, Nordholt sold and conveyed the premises in question by grant, bargain, and sale deed, to A.I. Smith, for the consideration of six hundred dollars, fifty dollars paid in cash, and a promissory note given for five hundred and fifty dollars, payable in six months after date. Said deed was recorded November 2, 1898, in the records of Los Angeles County. On December 2, 1898, said Smith conveyed said premises to E.P. Clark, the defendant, by grant, bargain, and sale deed, the grantee therein paying Smith fifty dollars cash and agreeing to pay the note of Smith to Nordholt, which he subsequently did; that said deed was thereupon recorded December 5, 1898, in the records of Los Angeles County. The purchase of the premises in question was made by Smith and Clark, and the conveyance was taken by them for the benefit of the Los Angeles Pacific Railroad Company, of which company the defendant, Clark, is the principal manager and director, and said company immediately upon the execution of the deed to Smith entered into possession of the said premises, laid its track across the same, and afterwards, and for six months, continued to make improvements upon said premises in such manner as to use them for a place for repairing and cleaning cars. The said improvements were made at different times during the six months after taking possession of said premises, and aggregated in amount five hundred dollars.
Plaintiff paid the taxes upon the premises in dispute that were due and payable prior to the first Monday in March, 1899, and defendant paid the taxes on behalf of the Los Angeles Pacific Railroad Company thereafter.
"Plaintiff returned from her visit to Canada on the 5th day of November, 1898, and was informed on that day that Maurice Baillarge, her husband, had abstracted the deed from her to him from her said trunk and had conveyed the premises to Nordholt, and that Nordholt had transferred the said premises to Smith, for the Los Angeles Pacific Railroad Company, and that the railroad company had entered into the possession thereof and laid its tracks thereon, and that the said railroad company was using the same as its property; and that no notice (except such notice, if any, as the above facts impart) was given by plaintiff to defendant, or by defendant to plaintiff, or the Los Angeles Pacific Railroad Company, *593 or to any one for them, or either or any of them, of their claim or rights in and to the property in dispute (except such knowledge and notice, if any, as is given and imparted by the facts aforesaid) until the commencement of this action.
"Neither W.F. Nordholt nor A.I. Smith, nor defendant E.P. Clark, nor the Los Angeles Pacific Railroad Company, had any knowledge or notice until the commencement of this action (unless the facts in the previous findings stated impart notice) that plaintiff was the owner, or claimed to own, or had any interest in the premises in dispute."
From these facts so found the court rendered judgment in favor of the defendant.
The contention on the part of the appellant is, that the deed from the plaintiff to her husband, Maurice Baillarge, was never delivered, and therefore never became operative as a conveyance. The respondent, on the other hand, replies that, admitting the deed was never delivered so as to take effect between the parties thereto, from the facts found by the court the plaintiff is estopped, and the judgment in favor of the defendant should be affirmed; and in this we think the respondent is correct.
It is found that Nordholt received the deed from the appellant's husband to the premises in dispute September 9, 1898, and conveyed the premises to Smith October 26, 1898, and that ten days thereafter appellant returned from Canada, and was then informed that the deed had been taken from her trunk, and that her husband had made the conveyance in question, and that nearly a month thereafter Smith conveyed to the defendant Clark, for the benefit of the railroad company, as stated, which company had entered into possession and commenced making improvements thereon, which continued six months thereafter and aggregated five hundred dollars; that the plaintiff gave no notice whatever, nor made any indication of her claim to the property until the commencement of the action, nearly three years after her return from Canada, and after being informed of the whole transaction.
If the plaintiff did not approve of the transaction on the part of her husband, it was her duty, when informed of the same, to promptly repudiate what had been done by her husband in the premises. Instead, however, it appears that no notice whatever was given or steps taken to inform the defendant *594 that she disapproved of the transaction until the commencement of the action, nearly three years after becoming acquainted with all the facts.
It is laid down as one of the maxims of the law that "He who can and does not forbid that which is done on his behalf is deemed to have bidden it." (Civ. Code, sec.
In Beardsley v. Clem,
In Alexander v. Welcker,
The reasons for the application of the old rule of equitable estoppel are equally as cogent in the case at bar.
Judgment affirmed.
Beatty, C.J., Lorigan, J., Henshaw, J., Shaw, J., and Angellotti, J., concurred.
Rehearing denied.