Dandini v. Johnson

• Decision Date: 19 July 1961
• Citation: 14 Cal.Rptr. 534,193 Cal.App.2d 815
• Court: California Court of Appeals Court of Appeals
• Parties: Lillian R. DANDINI, Plaintiff, Cross-Defendant and Appellant, v. J. Edward JOHNSON, W. Glenn Harmon, and all persons, etc., Defendants, cross-Complainants and Respondents. Civ. 19540.

Page 534

14 Cal.Rptr. 534

193 Cal.App.2d 815

Lillian R. DANDINI, Plaintiff, Cross-Defendant and Appellant, v. J. Edward JOHNSON, W. Glenn Harmon, and all persons, etc., Defendants, cross-Complainants and Respondents.

Civ. 19540.

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

July 19, 1961.

Emanuel P. Razeto, M. J. Rankin, Oakland, for appellant.

Robert H. Johnson, San Francisco, for respondents.

FRED B. WOOD, Justice pro tem.

This action, instituted by plaintiff to quiet title to certain real property, resulted in a judgment determining that defendants own an undivided one-half interest in the property and that plaintiff owns the other undivided one-half interest therein. ¹

Plaintiff claims that defendants acquired and hold their one-half interest solely as security for the payment of attorney fees and subject to a life estate owned by plaintiff. ²

The half-interest in question, plaintiff received from her mother by will; the other half, from the same source, as trustee for her sister Emma Remillard.

In 1935, plaintiff by a deed of gift conveyed her undivided half-interest to her husband, A. O. Dandini, with certain reservations in favor of herself and her sister.

The significant portions of the deed read as follows:

'This Indenture, made this 28th day of March, A. D. 1935 between Lillian R. Dandini (formerly Lillian Remillard), the party of the first part, and A. O. Dandini, the party of the second part,

'Witnesseth: That the said party of the first part, for and in consideration of the love and affection which the said party of the first part has and bears unto the said party of the second part, does by these presents give, grant, alien and confirm unto the said party of the second part, and to his heirs and assigns forever, all of the right, title and interest of the party of the first part in and to all that certain lot, piece or parcel of land, situate, lying and being in the County of Santa Clara, State of California, and bounded and described as follows, to wit:

* * * [Description.]

'Reserving, however, to the party of the first part, and to Emma Remillard, the sister of the party of the first part, the right to use and occupy said lands during the terms of their respective natural lives.

'Together with all and singular, the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining and the reversion and reversions, remainder and remainders, rents, issues and profits thereof.

'To Have and to Hold, all and singular the said premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns forever.' (Emphasis added.)

Plaintiff contends the reservation was clearly of a life estate. Defendants do not agree. The trial court found that plaintiff conveyed the land 'including the rents, issues and profits, to A. O. Dandini, then her husband, reserving a right to herself and her sister to use and occupy said lands during the terms of their respective lives, but it is not true that said reservation was, or was intended, to reserve to plaintiff and cross-defendant the exclusive right to use and occupy the same, or to constitute a life estate therein.' [Finding VI.]

From a mere reading of the deed it is not clear precisely what type of right of use and occupancy the parties meant by the words employed. Judicial precedents do not help greatly. In Woman's Home and Foreign Missionary Society etc. v. Bank of America, 15 Cal.App.2d 682, 683, 59 P.2d 1060, 1061 a reservation of "the free use and occupancy of the said premises as a residence for [the grantor] so long as she may live" was treated as the reservation of a life estate. In Le Breton v. Cook, 107 Cal. 410, 417, 40 P. 552, a will vested all of the property of the estate in trustees and then directed 'the trustees to deliver * * * the possession of' the family residence to a sister, the sister "to be allowed to occupy and use the same until her death, free of rent." These words did not create a life estate but they did serve to give the sister a right of free use of the property which was protected by the decree as modified by the reviewing court.

In our case, the words of reservation do not speak in terms of a 'life estate,' nor do they expressly reserve a right to exclusive possession. In addition, there is an express declaration that the grantee is to have the 'rents, issues and profits' of the property, some indication that he is not a remainderman and will immediately enjoy the use of the property. There is here, we think, sufficient uncertainty and ambiguity of expression to allow a court to look to extrinsic evidence, as the trial court did, in search of the intent of the parties to the deed. Under such circumstances extrinsic evidence is admissible. Leboire v. Royce, 53 Cal.2d 659, 666- 667, 2 cal.Rptr. 745; Beneficial Fire & Casualty Insurance Co. v. Kurt Hitke & Co., 46 Cal.2d 517, 523, 297 P.2d 428; Schmidt v. Macco Construction Co., 119 Cal.App.2d 717, 732, 260 P.2d 230; MacIntyre v. Angel, 109 Cal.App.2d 425, 429, 240 P.2d 1047; and authorities cited in each.

Plaintiff contends that extrinsic evidence can not be used as an aid to the interpretation of a deed. She is mistaken. The very case she cites holds that extrinsic evidence can not be so used 'if the language of a deed is plain, certain and unambiguous.' Laux v. Freed, 53 Cal.2d 512, 523, 2 Cal.Rptr. 265, 271. Obviously, that is not a holding that extrinsic evidence is unavailable if the language of a deed is ambiguous and uncertain. Really, there is no fundamental difference in this respect between a deed and any other written instrument. 'The modern tendency, almost universally accepted, is to abandon the strict common-law rule of construction [of deeds]. The cardinal requirement in the construction of deeds now, as in the construction of other instruments, is that the intention of the parties as gathered from the whole instrument must govern.' Basin Oil Co. of California v. City of Inglewood, 125 Cal.App.2d 661, 663, 271 P.2d 73, 75. See also Paddock v. Vasquez, 122 Cal.App.2d 396, 399-400, 265 P.2d 121; Weber v. Graner, 137 Cal.App.2d 771, 774-775, 291 P.2d 173; Biescar v. Czechoslovak-Patronat, 145 Cal.App.2d 133, 142-143, 291 P.2d 173; Kraemer v. Kraemer, 167 Cal.App.2d 291, 300-301, 334 P.2d 675. In the Kraemer case the court made these significant observations: 'Where the language of a deed is uncertain, i. e., 'fairly susceptible of either one of two constructions contended for without doing violence to its usual and ordinary import' (Beneficial etc. Ins. Co. v. Kurt Hitke & Co., 46 Cal.2d 517, 525, 297 P.2d 428, 432), circumstances surrounding its execution and the subsequent conduct of the parties with respect thereto may be considered in order to determine their intention in consonance with the language used; to determine 'what they meant by what they said.' Barnhart Aircraft, Inc. v. Preston, 212 Cal. 19, 23, 297 P. 20, 21; Civil Code, sec. 1647; Universal Sales Corp. v. California etc. Mfg. Co., 20 Cal.2d 751, 761, 128 P.2d 665; Van Slyke v. Arrowhead etc. Power Co., supra, 155 Cal. 675, 681, 102 P. 816; Poles v. Glass, 136 Cal.App.2d 508, 510, 288 P.2d 986; Paddock v. Vasquez, 122 Cal.App.2d 396, 265 P.2d 121.' On page 304 of 167 Cal.App.2d, on page 683 of 334 P.2d.

The following evidence supports the trial court's finding that plaintiff reserved a right to herself and her sister to use the property during their respective lives, but not an exclusive right of use nor a life estate.

Plaintiff testified upon cross-examination that she wanted the grantee, her husband, to have ownership along with her and her sister; she thought it would be nice for him to own part of the property; she did not need a half interest at the time because she felt that with her husband and her sister that was enough, it was all right for plaintiff. She also testified that her husband planted walnut trees [on about ten of the thirteen acres which comprised this property]; she thought the trees were about five years old in 1946 when the execution sale of Dandini's interest took place, which would indicate the planting occurred after the deed to Dandini was executed and delivered. There is evidence also that plaintiff told defendant Johnson that her husband was the person who planted the walnuts and the ornamental hedges around the place; also, that he made structural changes in the portion of the house which he occupied.

Shortly before the execution sale, defendant Johnson suggested to plaintiff that she bid on the property. She declined, saying she was not interested. Johnson then suggested she had a choice "now of whether you want the Remillard Brick Company as co-owners with you in this property or Johnson and Harmon." She replied, "* * * That would suit me fine for Johnson and Harmon to own property with me."

Such evidence and the inferences which reasonably may be drawn therefrom support the trial court's finding and preclude a reviewing court from undertaking to disturb that finding.

In the course of time differences developed between plaintiff and her husband. In 1939 she retained defendants as attorneys to represent her interests, individually and as a stockholder in Remillard Brick Company, which in turn owned stock in the Remillard-Dandini Company. A stockholder's derivative suit was brought against A. O. Dandini by Remillard Brick Company in its own name and in the name and in behalf of Remillard-Dandini Company, resulting in a judgment in 1943 for approximately $50,000 in favor of Remillard-Dandini and a direction that attorney fees in the sum of $10,000 be paid out of anything...