145 P. 516 | Cal. | 1914
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *35
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *36 A hearing in Bank of this cause was ordered after judgment in Department One.
Upon further consideration of the questions involved we have reached the conclusion that the views heretofore expressed in Department are correct, and the Department opinion is hereby adopted as the opinion of the court in Bank. For the reasons stated in that opinion, the judgment is affirmed.
The following is a copy of the opinion of Department One:
"This is an action by the administrator, with the will annexed, of the estate of Elizabeth Reed, deceased, against the administrator, with the will annexed, of the estate of James Reed, deceased, and M.J. Perry, to quiet title to a tract of 152 acres of land in San Mateo County and to recover possession of the same from defendants, together with the value of the use and occupation thereof.
"James Reed and Elizabeth Reed, the testator and testatrix represented by the two administrators here contesting, were *37 husband and wife. The plaintiff's complaint alleged that, at the time of her death, and long prior thereto, his testatrix had been the owner of the tract in controversy. The defendants answered, denying that Elizabeth Reed had at any time been the owner of the property and asserting that James Reed had at all times until his death been the owner and in the possession of said property. Other matters, which so far as they are deemed important will be referred to hereafter, were set up by an amended answer.
"The action came on for trial before the court and a jury. The plaintiff introduced his evidence and submitted his case. Thereupon one of the attorneys for the defendants made an opening statement detailing the facts that the defendants intended to prove. Upon this statement the plaintiff moved the court to direct the jury to bring in a verdict in favor of the plaintiff and the court granted this motion. From the judgment entered pursuant to this verdict the defendants appeal.
"It is no doubt true, as is argued by the appellants, that the practice of directing a verdict, in advance of the introduction of evidence, upon the opening statement of one or the other party is a dangerous one and that an order granting such motion can be upheld only where it is clear that counsel has undertaken to state all of the facts which he expects to prove, and it is plainly evident that the facts thus to be proved will not constitute a cause of action or a defense, as the case may be. `We would observe,' said this court in Emmerson v. Weeks,
"In reviewing an order directing a verdict on an opening statement the appellate court must apply rules analogous to those which govern it in reviewing an order granting a non-suit after the introduction of evidence. Every fact which counsel has stated as among the matters to be proved, together with all favorable inferences reasonably to be drawn therefrom, must be accepted by the court as facts which would have been proved if the case had been allowed to be tried.
"It is entirely clear from the record that the opening statement made by the appellants here was full and complete. After counsel had first outlined the facts to be proved, the plaintiff moved the court for the directed verdict. Counsel for the appellant declared his readiness `to argue that proposition right now.' The court thereupon directed that the reporter read over the opening statement, suggesting that counsel for the appellants might have omitted something. In response to this suggestion appellants' counsel amplified his statement, whereupon argument on the motion proceeded, and as already stated, the court directed a verdict in accordance with the motion. Under these circumstances there is, of course, no ground for the claim that the statement was made without an understanding of the necessity for making it exhaustive or that any substantial fact intended to be proved was omitted therefrom by inadvertence. The further question, then, is whether the facts so offered to be proved, if accepted as true, were such as to have constituted any defense to the action.
"The plaintiff had introduced evidence tending to prove the following facts: Elizabeth Reed, the wife, died on December 19, 1908. James Reed, the husband, died on the nineteenth day of October, 1910. In July, 1883, James Reed owned the tract of land in question and other lands in San Mateo, all of said lands being community property. The property in controversy was occupied by Reed and his wife as their home. On July 21, 1883, Mr. and Mrs. Reed were visiting at the home of the plaintiff in Santa Cruz. At the request of James Reed, the plaintiff, Bias, accompanied Reed to the office of Z.N. Goldsby, an attorney at law then engaged in practice at *39 Santa Cruz. Reed staled to Goldsby that he desired to make a deed of the property to his wife. Goldsby wrote a deed of gift of the property in controversy and had such deed ready for execution on the afternoon of the same day, when Reed, accompanied by Mrs. Reed, Bias, and John D. Chace, returned to his office. At that time the deed was read over in the presence of these persons (except, perhaps, Mr. Chace) and Reed assented to it. Reed signed the deed and acknowledged it. At the same time a will in which Mrs. Reed was named as sole beneficiary was executed by Reed, Bias and Chace signing as attesting witnesses. They also signed as witnesses to the grantor's signature upon the deed. Prior to this time Mr. Goldsby had advised Reed that it was necessary to deliver the deed in order to vest title in his wife, and after the signing and acknowledgment of the paper Reed handed it to Mrs. Reed. The deed itself was introduced in evidence. The foregoing facts with reference to the signing and delivery of the deed were testified to by Bias and Goldsby. Chace had died prior to the trial. Mr. Goldsby further testified that at the time of the delivery nothing was said with reference to the deed not taking effect unless Reed died before his wife.
"Upon Mrs. Reed's death in 1908 search for the deed was made without avail. After James Reed's death a sister of Mrs. Reed prosecuted further inquiries and finally discovered the deed under the linoleum on the floor of the room which had been occupied by the Reeds. The plaintiff's case also included some testimony regarding declarations made by James Reed after the date of the deed in question and tending to support the wife's title. The possession of the land by the defendants was admitted.
"This was the state of the case when the defendants made their opening statement. The statement was somewhat protracted, but we think its substance is fairly contained in the following summary: Counsel, after stating that he would introduce deeds showing the acquisition of the property in question by James Reed, went on to state that he would prove that at various times after 1883 James Reed deeded portions of the land to various persons without having his wife join in the conveyances. He declared his intention of showing, further, that in 1901 Mr. and Mrs. Reed sent for one Levy and requested him to prepare deeds from Reed to Mrs. Reed *40
and from Mrs. Reed to Reed of all of the lands owned by either, including the tract in controversy. These deeds were subsequently prepared, were executed and acknowledged by the respective parties and were put in the possession of Levy, who was directed to hold them and upon the death of either Mr. or Mrs. Reed to deliver to the survivor for record the deed of the one so dying. A controversy subsequently arose between the Reeds and Levy, and the Reeds requested one Coburn to draw similar deeds to take the place of the two that had been deposited with Levy. This transaction, however, was never consummated. The opening statement went on to state that in December, 1908, shortly prior to Mrs. Reed's death, she made a will in which she declared that all of the property was community property. It was stated that the appellants would show that Mrs. Reed had stated to one Thompson, a physician, that the deed of July 21, 1883, `was made and given to her with the understanding that it should not become effective unless she should outlive her husband.' Just prior to Mrs. Reed's death she requested Mr. Thompson to prepare a will for her and had declared that the property in question was the community property of herself and her husband, but no will was prepared by Mr. Thompson. Reference was made to other witnesses who would testify to oral declarations of Mrs. Reed that she considered the property community property; that she owned one-half of it and Mr. Reed the other half. Another witness, it was stated, would testify that in 1905 both Mr. and Mrs. Reed stated to him that the property was community property and that they had arranged their affairs so that whoever should outlive the other should get all the property. Counsel also undertook to show that at all times down to the death of Reed he had entire charge of the property, farmed it and paid all expenses in connection with it and during all this time the property had been assessed to and the taxes paid by him. The answer contains a plea of estoppel and with reference to this counsel incorporated into the opening a statement `to the effect that Mrs. Reed, by her acts and conduct, intentionally led her husband to believe, and that he did believe that she considered all this property to be the community property of herself and her husband and not her separate property.' With reference to the matter last quoted it is quite obvious that the statement of counsel falls far short of meeting the requirements of *41
estoppel in pais. The facts with respect to the ownership of the land were as completely known to Reed as they were to his wife. It was not stated that she induced a mistaken belief regarding any such fact. All that counsel claimed was that Mrs. Reed led her husband to believe that she `considered' the land to be community property. It is not apparent that her opinion of the legal status of the property could have any bearing upon her husband's rights or conduct, and the statement of counsel contains no intimation that Reed, if he was induced by her to believe that she `considered' the property to be community, was led by this belief to take or omit any action material to the protection of his interests. Without further discussion of this question, we simply refer to Boggs v. Merced M. Co.,
"That the plaintiff made out a clear prima facie case is not to be doubted. If the issues had been submitted to the jury on the plaintiff's evidence alone, the court could not properly have sanctioned a verdict in favor of the defendants. The question, then, is whether the matters which defendants declared they would prove — and which we must assume they were able to prove — were, in law, sufficient to meet or overcome the prima facie case established by the plaintiff.
"The fact that James Reed remained in possession of the land, farming it and paying taxes upon it, would not be effective to weaken or impair the title of his wife. If title had passed to her by a conveyance executed in 1883, no ownership or control asserted by her husband thereafter would revest title in him, unless he had maintained an adverse possession in the manner and for the time required by the code. There is nothing here to indicate that the possession was adverse at all. The tract was occupied by both parties as their home, before and after the conveyance to Mrs. Reed. The occupancy was consistent with an ownership by either husband or wife. It was, in fact, a joint occupancy, and could not, on the facts offered to be shown, furnish the basis for a claim of prescriptive title by one against the other. (First Nat. Bank v. Guerra,
"Another part of the opening statement had to do with the deposit with one Levy of deeds from Reed to his wife and from her to him. It is not claimed that any title passed by this transaction. (See Kenney v. Parks,
"The opening statement contained, in addition to the various items already discussed, a promise to prove certain acts and declarations of Mrs. Reed. Counsel undertook to show that in her will, made shortly before her death in December, 1908, Mrs. Reed had declared that the property was community property. Oral statements to the same effect had been made by her to different persons at various times. This court has, on several occasions, expressed the view that the character of the ownership of property, whether separate or community, is to be determined by the proof showing the mode of acquisition, rather than by any declaration of one of the parties that the property was or was not community property. (Estate of Grannis,
"The only remaining piece of evidence which defendants announced their intention of introducing consisted of the declaration of Mrs. Reed to Mr. Thompson that the deed of July 21, 1883, had been made and given with the understanding that it should not become effective unless she should outlive her husband. As a declaration against interest this was admissible if the fact thus stated by Mrs. Reed militated in any way against the validity of the title claimed by plaintiff as her administrator. We think the alleged fact could *44
have no such operation. Whether or not a deed has been delivered, either to the grantee or to a depositary is a question of fact. A manual tradition of the instrument is not sufficient, unless the passing of the paper is accompanied by the intent of presently transferring title to the property, and be unhampered by the reservation of a right of revocation or recall. (Follmer
v. Rohrer,
"The deed here in question was handed by the grantor to the grantee. No third party was interposed as depositary. Before the signing of the deed James Reed had been advised that in order to pass title it was necessary for him to make delivery to the grantee. If Mr. Thompson had been allowed to testify as it was stated he would testify, the declaration of Mrs. Reed could have had no greater force than to show that the paper had been delivered to her upon the condition that, if she did not survive her husband, the property would not pass to her, but that, if he died first, the title should vest in her. No right to recall the deed or to revoke the delivery was retained. In one event title was to pass. In the other it was not. But it was not contemplated that under either, contingency anything further was to be done. If the fact upon which the title was to pass (i.e., the death of Reed during the life of his wife) should occur, the deed was to become operative by virtue of the delivery made on the twenty-first day of July, 1883, which was the only delivery which the parties ever had in mind. We have, then, the case of a delivery, to the grantee, upon a condition which may, according to the outcome, make the transfer effective or nugatory. Such a delivery, if made to a third party, might have been ineffectual. But where the deed is handed to the grantee personally, the situation is different. In that case, the condition is, by the law, discarded, and the delivery is regarded as absolute. Such is the express declaration of our statutes. Section
"Such cases as Kenney v. Parks,
"The conclusion to be drawn from the foregoing discussion is that the facts contained in the opening statement of defendants, if proved, would not have raised a substantial conflict authorizing the jury to find against the plaintiff's claim of title. This being so, it was not error for the court to direct a verdict in plaintiff's favor. No other points are made." *46