Blackburn v. Drake

• Decision Date: 15 January 1963
• Citation: 211 Cal.App.2d 806,27 Cal.Rptr. 651
• Court: California Court of Appeals Court of Appeals
• Parties: J. F. BLACKBURN, Plaintiff and Respondent, v. Harriet M. DRAKE and Mary G. Hughes, Defendants and Appellants. Civ. 20444.

Page 651

27 Cal.Rptr. 651

211 Cal.App.2d 806

J. F. BLACKBURN, Plaintiff and Respondent, v. Harriet M. DRAKE and Mary G. Hughes, Defendants and Appellants.

Civ. 20444.

District Court of Appeal, First District, Division 1, California.

Jan. 15, 1963.

Hearing Denied March 13, 1963.

Johnson & Harmon, San Francisco, for appellants.

Brown, Kellogg & Taber, Oakland, for respondent.

MOLINARI, Justice.

This is an appeal from a judgment quieting title in the respondent to certain real property in Oakland, California.

Question Presented

In this action to quiet title brought by a surviving husband against his three stepdaughters, the sole question on appeal is whether there is sufficient evidence to support the trial court's finding that a deed executed by the deceased wife was not delivered to the said stepdaughters.

The Record

The respondent, J. F. Blackburn, is the surviving husband of Josephine Blackburn. Beatrice Giesser, and appellants, Mary Hughes and Harriet Drake, are Mrs. Blackburn's daughters by a previous marriage. During their marriage the Blackburns acquired premises at 3877 Shafter Avenue, Oakland, by a joint tenancy deed. They resided on said premises until Mrs. Blackburn's death on June 5, 1957. During the period that the Blackburns resided together on said premises, Mr. Blackburn paid the taxes, insurance and the costs of repairs and improvements thereon from his earnings. Mrs. Blackburn participated in making repairs and improvements on the house by the performance of manual work.

In 1955, Mrs. Blackburn executed a deed, bearing date of January 21, 1955, purporting to convey her interest in said property to her three daughters. Mrs. Giesser, a defendant in the action below but not a party to this appeal, testified concerning the circumstances surrounding the execution of the deed as follows: that she and Mrs. Blackburn went to the real estate office of a Mrs. Gibb; that Mrs. Blackburn entered said office while she (Mrs. Giesser) parked the car; that she did not know who prepared the deed; that when she entered the office after parking her car the deed had already been prepared; that she didn't recall seeing it before it was signed or notarized; that Mrs. Blackburn signed the deed in question in her presence; that at said time Mrs. Blackburn said to Mrs. Giesser, "Well, here it is. You can put me out now, if you want to. Take it and record it"; that the deed was then handed to her by Mrs. Gibb, 'the notary,' whereupon she and her mother left the said office. At another stage of her testimony, Mrs. Giesser described this statement of her mother at Mrs. Gibb's office as follows: 'Oh, she just kiddingly said, 'There it is. You can put me out now, if you want to,' and I kind of laughed and said, 'WELL, IT HAS BEEN DONE." MRS. GIESSER TESTIFIed Further that she kept the Deed at her home and did not record it until after her mother's death, explaining that, because Mr. and Mrs. Blackburn were having domestic difficulties and were on the verge of a divorce she kept 'putting off having it recorded,' feeling that if she recorded the deed she 'might precipitate more trouble between them * * *.' Mrs. Giesser also testified that from the date of the execution of the deed by her mother until the date of her mother's death she did not exercise any claim of ownership to the property in question in any manner.

In January or February of 1957 Mr. Blackburn was involved in an automobile accident. Mrs. Blackburn thereupon filed a declaration of homestead on the property without discussing it with Mr. Blackburn and without his knowledge. The said homestead recited, among other things, that it was made for the joint benefit of herself and her husband.

Mr. Blackburn testified that he did not learn of the execution of this deed or of the homestead until after his wife's death. He also testified that there was no change in the manner in which he and Mrs. Blackburn conducted themselves toward this property after June 21, 1955, the date on which the deed in question was purportedly executed.

It was stipulated between counsel at the trial that if Mrs. Gibb were called as a witness she would testify that Mrs. Blackburn and Mrs. Giesser appeared before her on January 21, 1955, and that she did, on that date, notarize the deed in question and then handed it to Mrs. Giesser.

Mrs. Hughes, one of the appellants, testified that following the funeral she stated to the respondent 'that Mama had left her half of the property to us and that my two sisters and myself had discussed it before * * * and that we had all decided that Pa should have the place to live in as long as he would live * * *.' Mr. Blackburn continued to live on said premises after his wife's death and still does. Mrs. Hughes also stated that her mother had told her 'that there was much trouble between she and Pa and that she didn't feel like leaving her half of the property to him in view of the fact that apparently their marriage was so far on the rocks that he couldn't say a civil word to her anymore'; that Mrs. Blackburn felt she should leave the property to her and her sisters; and that 'she was going to make a deed to us.' There was also testimony adduced from Mrs. Giesser with respect to the deed that she and her mother had explained to an attorney that Mrs. Blackburn 'wanted to leave her part to us and we wanted to know if it could be done that way.'

Mrs. Giesser caused the deed in question to be recorded on June 7, 1957, two days after Mrs. Blackburn's death. Thereafter, Mrs. Giesser quitclaimed her interest in the subject property in exchange for a quitclaim by the respondent of his interest in another parcel. The respondent brought the instant action to quiet title to the property naming as the defendants the three daughters, individually, and Mrs. Giesser, as administratrix of the decedent's estate. Mrs. Giesser answered and disclaimed any interest in the property either on her own behalf or on behalf of the estate. The two other defendants each claimed a one-sixth interest in the property and cross-complained to have such title quieted in them. The trial court held for the respondent, finding that there had been no delivery of the deed to the grantees and that the deed did not convey any interest in the property.

Did The Trial Court Err In Finding That The Deed Was Not Delivered

Delivery or absence of delivery is a question of fact to be determined by the trial court. (Condencia v. Nelson, 187 Cal.App.2d 300, 302, 9 Cal.Rptr. 759; Chaffee v. Sorensen, 107 Cal.App.2d 284, 288, 236 P.2d 851.) Intent to pass title is an essential element of delivery and the question of intent is a question of fact to be determined by the trial court or jury upon all the circumstances surrounding the transaction. (Jones v. Jones, 183 Cal.App.2d 468, 472, 6 Cal.Rptr. 819; Williams v. Kidd, 170 Cal. 631, 638, 151 P. 1; Priest v. Bell, 123 Cal.App.2d 528, 531, 267 P.2d 49; Donahue v. Sweeney, 171 Cal. 388, 153 P. 708.) The important intention is that of the grantor and not that of the grantee. (Huth v. Katz, 30 Cal.2d 605, 608, 184 P.2d 521; 15 Cal.Jur.2d § 84, p. 481.) A deed delivered with the intent that it shall take effect only on the death of the grantor is an attempted testamentary disposition and therefore void. (Williams v. Kidd, supra, 170 Cal. 631, 644, 151 P. 1.) The applicable rule is well-stated in Henneberry v. Henneberry 164 Cal.App.2d 125, 330 P.2d 250: 'In addition to physical delivery, and an acceptance by the grantee, to constitute a valid delivery there must exist a mutual intention on the part of the parties, and particularly on the part of the grantor, to pass title to the property immediately. In other words, to be a valid delivery, the instrument must be meant by the grantor to be presently operative as a deed, that is, there must be the intent on the part of the grantor to divest himself presently of the title. Even if the document is manually delivered, but the evidence shows that the parties or the grantor intended the document to become operative only upon death, the document is testamentary in character and void as a deed.' (p. 129, 330 P.2d p. 252.)

The appellants contend that there is a presumption that a deed in the possession of the grantee has been delivered; that this presumption is present in the instant case; and that it has not been rebutted. They rely upon Stewart v. Silva, 192 Cal. 405, 221 P. 191, wherein it was held that possession of a deed by the grantee constituted prima facie evidence of delivery. There is some confusion among the authorities, however, as to whether possession of a deed raises a presumption or an inference. (See Estate of Galvin, 114 Cal.App.2d 354, 360-362, 250 P.2d 333.) A number of cases have held in favor of the existence of the presumption. (Stewart v. Silva, supra, 192 Cal. 405, 221 P. 191; Belli v. Bonavia, 167 Cal.App.2d 275, 334 P.2d 196; California Trust Co. v. Hughes, 111 Cal.App.2d 717, 245 P.2d 374; Hill v. Donnelly, 43 Cal.App.2d 47, 110 P.2d 135; Thompson v. McKenna, 22 Cal.App. 129, 133 P. 512; Central Trust Co. v. Stoddard, 4 Cal.App. 647, 88 P. 806.) Others have held that such possession merely raises an inference of delivery. (See Miller v. Jansen, 21 Cal.2d 473, 477, 132 P.2d 801, and thirteen cases there cited; see also Hennelly v. Bank of America, 102 Cal.App.2d 754, 228 P.2d 79; Jones v. Jones, supra, 183 Cal.App.2d 468, 6 Cal.Rptr. 819.) The confusion apparently stems from the interpretation of section 1055 of the Civil Code which provides that 'A grant duly executed is presumed to have been delivered at its date.' In Miller v. Jansen, supra, it was held that the presumption created by this section pertains only to the date, not to the fact of delivery; and that a duly signed and delivered instrument is presumed to have been delivered at its date. Stated another way, the interpretation of Miller is that once delivery in fact is established a presumption attaches that the...