81 P. 319 | Cal. | 1905
Lead Opinion
The plaintiff is a daughter and an heir at law, and defendant is the surviving husband, of Emily F. *33 Currier, deceased. The said decedent left a will in which she bequeathed and devised certain property to named persons, and gave the residue of her estate to the defendant herein for life, with remainder over to plaintiff and her sister, Letitia C. Hendry. During her lifetime the decedent executed a deed to defendant conveying to him in fee the certain lot of land described in the complaint herein; and this action was brought to have said deed set aside and annulled on the grounds, — 1. That it was never "signed, executed, acknowledged, or delivered by said decedent in her lifetime"; and 2. That if it was signed, delivered, etc., its execution was procured by the undue influence of defendant. The prayer of the complaint is, that the deed be declared void, and that said land be decreed to be part of the estate of the decedent, and that defendant be forever debarred from asserting any interest therein except as a tenant for life, etc. The findings and judgment were for defendant, and plaintiff appeals from the judgment and from an order denying her motion for a new trial.
There was no evidence of the undue influence charged, and in his briefs and argument counsel for appellant makes no attempt to sustain the averment on that subject. It is also entirely clear that the decedent signed the deed in question, duly acknowledged it before a notary public, and on December 27, 1895, made actual delivery of it to respondent, who took it and kept it in his own exclusive possession from that time until after her death; and these facts are not controverted by appellant. But the contention, and the only contention, of appellant is, that notwithstanding the actual manual delivery of the deed to respondent and its continued possession by him as aforesaid, still the delivery, for certain averred reasons, should not be considered as, and was not, a delivery in law. We see no ground upon which this contention can be maintained.
The delivery of the deed was fully proven by the testimony of respondent and of the witness George M. Mitchell, who was present at the time of the delivery and made a memorandum thereof. There was at the time no limitation whatever as to the character or purpose of the actual delivery; it was, so far as the evidence shows, unconditional. It was intended by the wife as a deed of gift to her husband, and delivered to him as such. She had told a friend who was a business man that *34 she wanted to give the house and lot in question — which was the family home — to her husband, and was advised by him how this could be done, and informed of the difference between a devise to him by will and a deed actually delivered to him in her lifetime. As to the possession of the deed after delivery respondent testified: "The deed remained in my possession from that time until after my wife's death. It would have been impossible for her to have obtained it again. It was in my safe-deposit box and she didn't have access to it." But appellant relies on certain circumstances hereinafter noticed as showing no delivery in law of the deed.
1. Respondent did not record the deed until after his wife's death; and appellant contends that something which he said about that matter in his testimony tends to show that the delivery of the deed was not with intent to pass title. Respondent said: "I did not refrain from recording it at her request. I refrained from recording it for fear that I might die first." Appellant's counsel then said to him, "Your idea was that if it was not recorded she could destroy it and revest herself with the title?" and he answered, "Yes, sir." There is no merit in this contention. The fact that respondent had the erroneous notion that if he should die before his wife, and that after his death she should get possession of the deed and destroy it the title would revest in her, has no pertinency to the issue of the delivery of the deed. (See Dimmick v. Dimmick,
2. The respondent is a physician, and in addition to practicing his profession was a partner with one Mitchell in the real estate business under the firm name of Currier Mitchell; and the firm did some business with the decedent. Mitchell also attended to insurance business. After the delivery of the deed Currier Mitchell rendered an account to the decedent, which included, among other things, taxes on the said lot of land for two years. It does not appear that *35 she objected to this charge; neither does it appear that her attention was called to it or that she paid it, or that respondent personally knew of it. Appellant argues that the charge for taxes is strong evidence to the point that the title had not passed; but this circumstance was really of no material importance. It is quite likely that charging her with the taxes for a year or two after the deed had passed was the mere inadvertent continuance of the accounts as they had formerly been kept, and was overlooked by her; but if she paid the tax account knowingly it was a matter of indifference to her, for she had the privilege of drawing on her husband's separate bank account, and in no event could this payment of taxes affect the legal value of the previous delivery of the deed.
3. After the delivery of the deed a fire-insurance policy on the premises was taken out in the name of the decedent. Appellant attaches importance to this circumstance, but it was of no consequence. The respondent paid all the premiums on the policy; it does not appear that the decedent had any knowledge that the policy was in her name; and Mitchell testified that it was through his oversight and error that the policy in existence at the time of the deed was not transferred to respondent. If a policy was taken in a wrong name, that fact might have affected its validity as against the insurance company, but it could have no effect upon the validity of the title which passed by the deed.
4. In 1899, which was after the delivery of the deed, the respondent made application in his own name to the Savings and Loan Society for a loan of two thousand dollars, to be secured by the property here involved. The application was accepted, and, instead of a mortgage, there was prepared a certain form of a deed of trust which has been held by this court to be a valid form of security for loan of the money. (See Sacramento Bank v.Alcorn,
In conclusion, it may be said that the contentions of appellant as above noticed would, under the most favorable view for her side, only constitute some conflicting evidence as to the issue whether the deceased delivered the deed in question to respondent, and do not afford any ground for disturbing the *37 findings of the court that she did deliver it and that the title thus passed.
The judgment and order appealed from are affirmed.
Lorigan, J., and Henshaw, J., concurred.
A petition for a hearing in Bank having been filed, the following opinion was rendered thereon on the 26th of June, 1905: —
Addendum
Rehearing denied.
The stipulation in the trust-deed as to the payment of the surplus, if any, to Mrs. Currier, should not be held to necessarily estop the husband from claiming the property. What was said in the opinion in Hoeck v. Greif et al.,