202 P. 940 | Cal. Ct. App. | 1921
The plaintiff brought an action against the defendants to quiet her title to certain lands in Lake County. In her complaint she named as defendants *24 her four children and a grandchild, the daughter of a deceased child of the plaintiff, and she also named H. E. Witherspoon, the former attorney of the plaintiff, and the holder of the deeds sought to be canceled and annulled. The summons was served on all of the defendants, three of the defendants appeared and answered, but the other defendants neither appeared nor answered, nor was a default entered. The defendants that answered were George R. Pitney, a son, May Foutch, a daughter, and H. E. Witherspoon. On the issues so made the court tried the case sitting with a jury. The jury returned a verdict in favor of the defendants, and brought in five special verdicts: 1. The plaintiff did intend, on October 10, 1916, at the time H. E. Witherspoon took the written instruments, that the said instruments should become immediately operative as deeds. 2. That plaintiff did intend, at the time H. E. Witherspoon took the written instruments, that such instruments should presently pass title to the land described in them. 3. The plaintiff did intend, at the time H. E. Witherspoon took the written instruments, to put it beyond her power to make any other disposition of her land. 4. The plaintiff did intend, at the time H. E. Witherspoon took the written instruments, that said Witherspoon should have actual custody of those papers; and 5. The plaintiff did intend, when H. E. Witherspoon took the written instruments, to part with all future control over said instruments. Thereafter the trial court received and adopted said verdicts as part of its findings, and among other findings the trial court made a finding that the plaintiff did, on the tenth day of October, 1916, deliver the deeds to H. E. Witherspoon and instruct him to hold the said deeds in escrow until her death, and in that event to deliver the said deeds to the several grantees therein named. And the trial court further found that the said deeds were signed, acknowledged, and delivered by the plaintiff to H. E. Witherspoon in escrow with full knowledge of their nature and effect, and with the intent thereby to surrender up all dominion or control over the said deeds forever, and to place them irrevocably beyond her power to recall them, and with the further intent that title to the said lands should immediately vest in the several grantees named in the said deeds, subject only to a life estate therein reserved to herself, *25 and thereupon the court entered a judgment in accordance with the said findings. Later the plaintiff moved for a new trial; her motion was denied, and she appealed from the judgment under section 953a of the Code of Civil Procedure. On this appeal the appellant contends that the deeds were never subscribed by her and, consequently, even though delivered in escrow, were never operative to transfer any title, and, secondly, that the deeds were never delivered and were inoperative because appellant never intended to vest an estate in the grantees or to put it beyond her power to make a subsequent disposition of the property.
On the tenth day of October, 1916, the plaintiff was about seventy-one years of age; she was unable to read or write; her general health was fairly good; at the time the survey was made, about a week before, she was well enough that she was out on the farm and directed the surveyors as to the lines that should be run. On the day the deeds were made she was indisposed and was in bed, but there is no contention that she was suffering from any severe illness at that time. The testimony produced by the plaintiff and that produced by the defendants is to the effect that the plaintiff was in possession of her mental faculties and freely discussed with her attorney the business in hand. Mr. Witherspoon was called as a witness for the defendants. Among other things he testified that prior to the tenth day of October, 1916, the plaintiff had asked him if she could make deeds to the grantees named and yet retain the possession of the property during her lifetime. He said he explained what was meant by escrow deeds, that she could make deeds in escrow and deliver them to a third party with the intention of passing present title, that such an act would give her a life estate in the property, and, at her death the holder of the deeds would deliver the deeds to the parties she had named and they could record the deeds. That seemed to satisfy her. He also explained to her that the property in her lifetime was hers to use, that she could rent it and farm it, and was entitled to the entire income from the property, and that the property would only come to the possession of the grantees named in the deeds after her death. After that explanation the plaintiff said that was the way she wanted her property fixed. He explained to her that she could not get the deeds back after placing *26 them in escrow. She said that this was to be her final disposition, she did not want to be bothered any more about dividing her property, she wanted this to be final. He also told her that it would be necessary to obtain descriptions to be inserted in the deeds. Thereupon the services of a local surveyor were obtained, and later the descriptions were delivered by the surveyor to Mr. Witherspoon. On October 10, 1916, Mr. Witherspoon took with him Dr. R. G. Reynolds, a notary public, and Mr. D. W. Dillard, and the three went to the residence of the plaintiff. While there the deeds were finally completed, and then one at a time the same were read to the grantor, and thereupon each one was executed in such a manner that the closing part was as follows: "In Witness Whereof, the said party of the first part has hereunto set her hand and seal the day and year her first above written. Amanda E. X Pitney (Seal). Signed, mark Sealed and Delivered in the presence of witnesses to mark, R. G. Reynolds, D. W. Dillard." Thereupon each deed was acknowledged before Dr. Reynolds as a notary public, and each certificate of acknowledgment is in the ordinary and regular form. Mr. Witherspoon wrote the words, "Amanda E. Pitney her mark." Each deed was placed in a separate envelope and there was written on each envelope an indorsement; the one on the envelope in which the deed to May Foutch was inserted being as follows: "Escrow instructions. I instruct H. E. Witherspoon in whose hands I have deposited a deed to May Foutch, to hold the same during my life and at my death to deliver the same to the said May Foutch, and I hereby declare it is now my intention to have the said deed delivered in escrow to the said Witherspoon for purpose of delivering said deed at my death to the said her May Foutch. Amanda E. X Pitney. Witnesses to mark mark R. G. Reynolds, D. W. Dillard. Oct. 10/16." The signing of the instructions was done in the presence of Dr. Reynolds, Mr. Dillard, and Mr. Witherspoon, and was done in the same manner as the signing of the deeds. Mr. Witherspoon explained the contents of each deed to the grantor before she signed the same, and explained to her the instructions in writing and read the same to her. He testified: *27 "She was again asked if she understood an escrow deed meant the delivery of a deed to a third party, that she surrendered all future control of the deeds and retained only a life estate in the property, and that that was the effect of the instructions upon the envelope." After the deeds had been so executed and delivered to the witness and inclosed in the envelopes and sealed, the witness and Dr. Reynolds and Mr. Dillard left the house, the witness taking the envelopes and their contents with him, and he has retained the same ever since. On cross-examination he stated that in April, 1918, the plaintiff demanded the possession of the deeds, but that he refused to deliver the same. That was the first dissatisfaction he heard expressed. About October 17, 1916, the plaintiff called on the witness and made a will disposing of her personal property. By that will she divided her personal property, giving different things to her children or to her grandchildren. She inserted a clause that the rest and residue of her property was to be divided among her children.
Mrs. Foutch testified that on the day the survey was being made her mother had stated that she wanted her property disposed of by deed, and that was her final decision. She also testified that she heard the instructions read to her mother and heard her mother assent thereto; that she never heard any dissatisfaction expressed until the spring of 1918, although after the deeds had been executed and before the spring of 1918 she said that her mother had made the remark that the execution of the deeds was a final disposition of the property; she was entirely satisfied and happy, and she was glad to be rid of it and have it off her mind. The defendant George R. Pitney testified that on the morning the survey was made his mother pointed to the land that she was going to deed to him and said, "I am going to make a final disposition so I can't change it if I want to." There is a stream that crosses or borders the lands conveyed to George Pitney and May Foutch. After the deeds had been made the plaintiff directed the attention of Mr. Foutch and of George Pitney to the fact that the stream was cutting the banks, and that it would be necessary for them to protect their respective properties. Thereupon those men entered upon the lands and performed the work in question. *28
Before the trial of the case Dr. Reynolds had died. The witness above referred to, Mr. Dillard, was called by the plaintiff. He testified, among other things, that in every instance Mr. Witherspoon read over the deed to Mrs. Pitney, after which he asked her if that was her wish; if that was the way she wanted the deed, and afterward she signed it. "As I understand, Mr. Witherspoon signed with her touching the pen." After the deeds had been prepared Mr. Witherspoon asked the plaintiff, "Now, do you want me to take these deeds in escrow and deliver them to the proper parties?" she said, "Yes." He also testified that the instructions were read over to her and that she signed the instructions.
The plaintiff testified that she did not intend to transfer her property; that at the time of the transaction she did not understand the effect would be that she would lose control over the papers; that she supposed she could get the papers back; that, if she had supposed that she was parting with all control over them, she would not have executed the papers; that she did not understand, at the time of the transaction, that if she made the papers and left them with Mr. Witherspoon that immediately Mrs. Foutch and George would become the owners of interests in the ranch.
From what has been stated it appears clearly that the intention of the grantor at the time the deeds were made was the real question put in issue by the pleadings and the proof as introduced by the respective parties, and that it may be conceded that the evidence is conflicting. However, it must also be conceded that there was an abundance of evidence going to support the verdicts and findings. [1] On the issue of intention, this court is not at liberty, therefore, to disturb the findings of the trial court. The appellant cites and relies on the rule stated in Williams v. Kidd,
[4] It is earnestly contended by the appellant that the signature by mark, as the same was executed, under the foregoing facts does not constitute a legal signature when measured by the calls of the statute. (Civ. Code, sections 14 and 1091.) A signature may be attached (1) by the hand of a party; (2) by the hand of another; and (3) by use of a mark. (36 Cyc. 451.) Mr. Dillard testified that, when Mr. Witherspoon had prepared the papers, Mr. Witherspoon wrote "Amanda E. Pitney, Her Mark," on the request of the plaintiff, and that the plaintiff at the same time had a hold on the pen. Such procedure, standing alone, had, in legal effect, the force of being a signing by the plaintiff. Such a signature falls within the first class. [5] Again, the testimony of the several witnesses called by the defendants was to the effect that when the time to sign arrived the plaintiff directed Mr. Witherspoon to sign her name, which act was done by him in her presence, and in the presence of Mr. Dillard and of Mrs. Foutch. Such act, without regard to any mark, *30
constituted and was in law the signature of the plaintiff. Such a signature falls within the second class. Our first statement is supported by the ruling in Harris v. Harris,
We find no error in the record. The judgment is affirmed.
Nourse, J., and Langdon, P. J., concurred. *33