Muktarian v. Barmby

• Decision Date: 15 August 1968
• Court: California Court of Appeals Court of Appeals
• Parties: Edward S. MUKTARIAN, Executor of the Estate of William Barmby, Deceased, Plaintiff and Appellant, v. Robert BARMBY, Defendant and Respondent. Civ. 959.

Page 903

70 Cal.Rptr. 903

264 Cal.App.2d 966

Edward S. MUKTARIAN, Executor of the Estate of William Barmby, Deceased, Plaintiff and Appellant, v. Robert BARMBY, Defendant and Respondent.

Civ. 959.

Court of Appeal, Fifth District, California.

Aug. 15, 1968.

[264 Cal.App.2d 967] Edward S. Muktarian in pro. per., Anthony M. Kennedy and Timothy F. Kennedy, Sacramento, for plaintiff and appellant.

Archibald M. Mull, Jr., Lally, Martin, Chidlaw & Viets and J. M. Brown, and Thomas W. Martin, Sacramento, for defendant and respondent.

OPINION

STONE, Associate Justice.

This case comes to us after a retrial that followed a reversal by the Supreme Court (Muktarian v. Barmby, 63 Cal.2d 558, 47 Cal.Rptr. 483, 407 P.2d 659). In the first trial judgment was entered pursuant to a motion under Code of Civil Procedure section 631.8, at the conclusion of plaintiff's case, ¹ upon the ground the action was barred by the statute of limitations. The Supreme Court held that the applicable statute of limitations had not run at the time of the commencement of the action, and reversed the judgment. As the reversal was unpualified and without directions, the case was completely retried.

In the second action, which is now before us, the trial court again found in favor of defendant, but with different findings on critical issues. In the first trial the court found that the attorneys for plaintiff prepared and recorded a deed from plaintiff to defendant, reserving a life estate in plaintiff, 'contrary to the intentions in the mind of plaintiff at the time of executing said deed in the offices of Mull & Pierce.' Upon retrial, after reversal, a different judge found that:

'William Barmby, on December 15, 1947, freely and voluntarily executed and delivered said grant deed conveying the property subject of this action to defendant, reserving a life estate therein.'

Plaintiff's principal argument on this appeal is that the finding of the court in the first trial became the law of the case because the Supreme Court, in reversing, did not specifically overturn the finding there had been no delivery. Plaintiff reasons that since the Supreme Court discussed only the question of applicability of the three-year statute of limitations and reversed on that issue alone, all other findings in the first trial were left standing to become the law of the case.

This reasoning is based upon a misconception of the term 'the law of the case.' As we understand the rule, the law stated by an appellate court in a decision, necessary to that decision, becomes the law of the case on a retrial, but the rule does not apply conversely, that is, all findings not mentioned by the opinion are not thereby approved. Since the decision in Muktarian v. Barmby, supra, is confined to a particular statute of limitations it could have no bearing upon the question of delivery of the deed.

This court considered a similar question in Daly v. Smith, 220 Cal.App.2d 592, 33 Cal.Rptr. 920. An appeal had been taken from a judgment in a former trial in which the court of appeal established as the law of the case that there was bad faith on the part of the cross-defendants. In discussing the effect of the prior appellate decision as the rule of the case, we said:

'The suit was tried at large at the second trial and all issues were considered and determined. The Fourth District Court of Appeal only decided certain questions of law, and it reversed the case principally because the issue of estoppel was not fully dealt with. The doctrine of the law of the case is applicable, generally speaking, only to principles of law laid down by the court as related to a retrial of the fact, but the doctrine does not embrace the facts themselves.' (P. 602, 33 Cal.Rptr. p. 925.)

(See Tally v. Ganahl, 151 Cal. 418, 421, 90 P. 1049; 3 Witkin, Cal.Procedure, Appeal, Law of the Case, § 210, p. 2419.)

Similarly, here, the Supreme Court reversed on the limited issue of the statute of limitations, so that all other findings on other issues in the first trial have no bearing whatever upon the findings of fact, including those relating to delivery, as found by the judge who retried the case.

Thus the question narrows to whether there is substantial evidence to support the findings on the issue of delivery.

We turn to the record, keeping in mind that our review of the evidence is governed by the classic rule summarized in Berniker v. Berniker, 30 Cal.2d 439, 444, 182 P.2d 557, 561, to wit:

'* * * it is the general rule that on appeal an appellate court (1) will view the evidence in the light most favorable to the respondent; (2) will not weigh the evidence; (3) will indulge all intendments and reasonable inferences which favor sustaining the finding of the trier of fact; and (4) will not disturb the finding of the trier of fact if there is substantial evidence in the record in support thereof.'

Ordinarily delivery is a question of fact to be determined by the trial court (Estate of Pieper, 224 Cal.App.2d 670, 684, 37 Cal.Rptr. 46), resting largely upon the intent of the grantor to pass title. Both of these determinative questions of fact must be resolved by the trial court from the circumstances surrounding the transaction. (Estate of Pieper, supra.) The Supreme Court observed in Osborn v. Osborn, 42 Cal.2d 358, 363--364, 267 P.2d 333, 336, that

'In some cases to ascertain the grantor's intent it is necessary to have recourse to his acts and declarations both before and after his transmission of the deed to the grantee or a third party (citations).'

The background facts reflect that the land involved was part of a large ranch owned by plaintiff and his first wife, Mai. They agreed that the survivor of them should own the ranch and upon his or her death it should go to their two sons, defendant and Ernest. Accordingly, they had their attorney, Mr. Mull, prepare reciprocal wills, which they executed. Each also executed a grant deed in favor of the other and irrevocably deposited the deeds in escrow with Mr. Mull with instructions to record or deliver the applicable one to the survivor upon the death of either. The mother died in August 1946, and her deed was delivered to the father; his deed to her was destroyed. Defendant and Ernest testified that they worked on the ranch, assisting plaintiff, who frequently told them the ranch would be theirs some day.

Following Mai's death in August 1946, plaintiff married Etta on December 2, 1947. Within a few days thereafter defendant heard that Etta was telling...