Henneberry v. Henneberry
| Decision Date | 14 October 1958 |
| Citation | 164 Cal.App.2d 125,330 P.2d 250 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Dorothy S. HENNEBERRY, Plaintiff and Appellant, v. William T. HENNEBERRY, Defendant and Respondent. Civ. 17843. |
Joseph P. Henneberry, San Anselmo, for appellant.
Shirley, Saroyan, Calvert & Peterson, J. Francis Shirley, San Francisco, for respondent.
Dorothy Henneberry brought this action against Willism Henneberry, alleging that she is the owner of an undivided one-half interest in certain real property in San Francisco, that William is wrongfully in possession of the property against her will, and demanding restitution of the property to her. By answer, William denied that plaintiff owns any interest in the property. The trial court found that plaintiff is not the owner of any interest in the property in that the deed under which she claims is void because of lack of delivery. From the judgment so declaring, plaintiff appeals.
The case involves an unpleasant squabble between members of a family over property. The building involved is a pair of flats. In 1941 Thomas and Michael Henneberry, brothers, held title to the property in joint tenancy. There were two other brothers, Joseph and William. Dorothy Henneberry, the plaintiff, is the wife of Joseph. At the time of trial in 1956 Michael was confined in a state hospital as a mentally ill person and had been so confined for over ten years. He had no guardian. Thomas, the other joint tenant, from 1949 until his death in 1955, was a very sick man, spending most of his time in hospitals or institutions.
The gift deed through which Dorothy Henneberry claims was executed on April 25, 1950. It is a gift deed purporting to convey all of the right, title and interest of Thomas in the property to Joseph. On this date Thomas was a patient in the San Francisco Hospital and had just undergone a serious operation. The deed was prepared by Joseph, who is an attorney. Why it was prepared, and at whose request, does not appear in the evidence. It was not recorded until several months after the death of Thomas, which occurred in 1955.
At the trial, in explanation of why he had not recorded the deed until after Thomas' death, and in describing the circumstances under which it was executed, Joseph testified that 'the thought uppermost in my mind was going to blow his top, I thought he was going to blow his top, I thought be would really go insane and the tormenting that that young fellow was going through--but as far as making it in contemplation of death, it probably was a secondary motive; but the primary motive that I had the deed made was, I thought Tom might blow his top.'
Joseph testified that on the date the deed was executed he and Mrs. William Henneberry and the notary were in the room with Thomas; that he, Joseph, told Thomas that he had a deed to he property; that Mrs William Henneberry vigorously objected; that Thomas reached over and grabbed the deed, took a pen from the notary public, and signed the deed; that the notary informed Thomas that the deed was a gift deed, and that he was there to notarize it; that after Thomas signed the deed he handed it to Joseph without comment. According to Joseph, all of this occurred without Thomas uttering one word.
After the physical delivery of the deed, Joseph took it to the notary's office where a notary's seal was affixed, and then took it home and put it in a safe deposit box where it remained until several months after Thomas' death, when it was recorded. Joseph testified that 'In fact, I was never going to record it, if he did the right thing with the property.'
The testimony is to the effect that, after the deed was signed and physically delivered, both Joseph and Thomas intended that the property remain the property of Thomas, and both considered that Thomas was the owner of it until the time of his death. Joseph stated that he did not want to assert ownership because he wanted Thomas to have a place to come to after he got out of the hospital. Thomas always insisted that it was his property and that no one was going to get it away from him. Joseph testified that even if he had recorded the deed during the lifetime of Thomas, he would have considered Thomas as the owner. It is conceded that Joseph asserted no ownership over the house until after the death of Thomas, made no improvements, paid no taxes, even when he knew they were delinquent, did not collect the rents, did not pay any insurance premiums, and filed no gift tax return on the property.
In 1948 William Henneberry and his family moved into one of the flats at Thomas request and upon Thomas' promise that if William would move in and take care of Thomas, William would have a home for the rest of his life. William and his family moved in, and, until Thomas' death, took care of Thomas when he was home. Thomas, during most of this period, was incapacitated and needed help, care and attention. William's wife acted as a nurse for Thomas, cooked for him, and fed and waited on him. When Thomas was in the hospital William or his wife visited him every visiting day. William collected the $25 a month rent for the other flat and bought things for Thomas that practically consumed the entire $25. In addition, William paid the taxes, insurance and maintenance costs.
On this evidence the trial court found that the plaintiff was not the owner of an undivided interest in the property for the reason that the gift deed to Joseph Judgment was entered accordingly and plaintiff appeals, challenging the correctness of the quoted finding.
The challenged finding is amply supported. Appellant seems to argue that because Thomas admittedly signed the deed, admittedly handed it to Joseph, and because Joseph admittedly recorded it, a valid legal delivery was shown as a matter of law, which can be attacked only on the grounds of fraud and undue influence. Such is not the law.
The rules applicable to a delivery of a deed are well settled. 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.
In determining this fundamental issue of intent, various presumptions...
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