82 P. 679 | Cal. | 1905
This action was brought by plaintiff to quiet her title to a parcel of real property in San Francisco found to be of the value of five thousand dollars, and to have declared void, upon the ground that the execution of the same was procured by undue influence, a certain deed executed by her to defendant Mary Hawley, in trust, to receive the rents and profits of the property, to pay therefrom the taxes, insurance, and repairs, and to pay the balance thereof to the use of plaintiff during her life, and upon her death "to convey the said property in fee simple absolute" to one E.H. Loomis. The trial court found against plaintiff upon her allegations of undue influence, but determined that the deed of trust was void under the decision of this court in Estate of Fair,
The theory of counsel for defendant Loomis, adopted by the learned judge of the court below, appears to be that by reason of a certain transaction between plaintiff and her husband, Barney Loomis, on January 6, 1900, plaintiff received said property from her husband solely in trust to receive the rents and profits of the same during her life and that upon her death the said property should vest in fee in said E.H. Loomis, a brother of her husband. The transaction in question, viewed in the light of the evidence most favorable to defendant, was as follows, viz.: On January 6, 1900, the husband, Barney Loomis, executed and delivered to plaintiff what purported to be an absolute conveyance of said property, which purported to be made in consideration of love and affection. This deed was in fact executed by the husband *151
only upon the promise of his wife that she would contract "to reserve this property for my brother." The wife agreed to this, and thereupon drew up and signed a writing wherein she stated, according to the evidence of a witness who was present, the writing not being produced, "that she would reserve and hold this property for the brother of her husband." On February 2, 1900, the said husband died. On February 5, 1900, she wrote a letter to said brother, in which, after speaking of the death and burial of her husband, she said: "This home is a gift to myself with the promise that, when I am through with it, it shall be given to his brother, Edwin, who proved himself the best friend to him he ever found." On February 16, 1900, she executed the void deed of trust, hereinbefore referred to, indicating her understanding of the terms and conditions upon which she had received the deed from her husband. It is claimed by defendants that the foregoing evidence sufficiently shows a constructive trust, in accord with the doctrine of Brison v. Brison,
The record shows that on that day the premises in question constituted the duly selected and recorded homestead of the plaintiff and her husband. It does not appear whether the property was community property or the separate property of either spouse, but owing to the fact, alleged by the pleadings, established by the evidence, and found by the trial court, that the wife had on February 18, 1881, regularly selected *152
the premises as a homestead, and that the husband on March 14, 1899, did the same, and there being no intimation that the homestead so selected had ever been abandoned, it is unquestioned that on January 6, 1900, the property constituted the homestead of the parties, selected either from the community property or from the separate property of the person selecting or joining in the selection of the same. Under these circumstances it cannot be doubted that it was then of such a character that it would, unless the homestead were subsequently abandoned by the concurrent act of both parties, vest absolutely on the death of either husband or wife in the survivor. In the absence of such abandonment, which could only be effected by the mutual concurrent act of the parties, in the mode prescribed by law (Civ. Code, secs. 1242, 1243), the law gave the homestead property absolutely to the wife in the event that she survived her husband. Her husband could not affect her right in this regard by any instrument which he, acting alone, could execute. It is true that it has been held that a husband may, by deed executed by himself alone, convey his title to the homestead property to his wife, subject to the homestead (Burkett v.Burkett,
There is no question in this connection as to whether there was such an interest in the husband at the date of the deed as to constitute that deed a sufficient consideration for the promise of the wife, but the question is whether there is property in her hands acquired by the wife from her husband under a deed made under such circumstances as to create a constructive trust. When it appears that there is no property in her hands acquired by reason of such deed, all questions as to a constructive trust are removed from the case. Defendant must then prevail, if at all, only upon the theory that an express trust in favor of defendant Loomis is shown. As to this it is manifest that no such trust was created while both husband and wife were living. Under the clear and explicit provisions of our Homestead Law, as uniformly construed by this court, the interest in the homestead property vested jointly in the husband and wife cannot while both live be thus conveyed, encumbered, destroyed, or impaired, in favor of a third party, except by a single written instrument, executed and acknowledged personally by both husband and wife (Civ. Code, secs. 1242, 1243; see Hart v. Church,
Defendant, however, relies upon a letter written by plaintiff to defendant Loomis, after the death of her husband, as creating such a trust. The statement relied on in that letter has already been set forth. There was nothing therein to indicate any intention on the part of the writer to create any trust, and all that the letter constituted at most was a voluntary acknowledgment on the part of plaintiff, made without any consideration whatever, that the property had been given to her by her husband, upon her promise that when she was through with it she would give it to defendant Loomis. It afforded very satisfactory evidence that she had made the alleged promise to her husband at the time of the execution of the deed, evidence in support of the claim of constructive trust, but it had no further effect, and could not, under the circumstances already detailed, operate to create a voluntary trust under the provisions of section 2222 of the Civil Code, as claimed by defendant. From what has been said, it follows that the finding of the trial court as to the ownership of this property is not supported by the evidence. It is contended by plaintiff that, upon the findings of the court, judgment should be ordered entered for the plaintiff in accordance with the prayer of her complaint, but we are of the opinion that the other findings are not such as to enable us to do this in the face of the findings as to ownership. *155
The judgment and order are reversed and cause remanded for a new trial.
Shaw, J., and Van Dyke, J., concurred.