Williams v. Kidd

This action was brought to set aside a deed purporting to convey property in the town of Williams, Colusa County, known as the “W. H. Williams Brick Warehouse,” and also seven lots in block 36 in said town, made by W. H. Williams to the defendant Laura Belle Kidd, under her name of Laura Miller, and prior to her marriage with the defendant, P. E. Kidd.

Plaintiff and intervener are the daughters and residuary legatees under the will of W. H. Williams, deceased. Defendant Laura Belle Kidd is the grandniece of said Williams and the purported .conveyance to her was dated September 30, 1901. W. H. Williams-died May 18, 1909, and the deed in question was recorded on July 24, 1910.

The complaint alleged that defendants asserted a claim to said property adversely to the estate of decedent and to plaintiff based on said deed, which deed it is alleged was never subscribed, executed, or delivered by Williams, or by any one

In their answer defendants disclaimed any assertion of interest in the property by defendant F. E. Kidd; denied the forgery and nondelivery of the deed, and alleged that said deed at the date it bore was signed, executed, and acknowledged by Williams and on the same day delivered by him to the defendant F. E. Kidd, with directions and instructions from said Williams to him to deliver the same to defendant Laura Belle Kidd (then Laura Miller) upon the death of said Williams; that upon the death of Williams said deed was delivered to said defendant Laura Belle Kidd, and she is now the owner of the property described in it.

The court found that the deed in question was duly signed and acknowledged by Williams on its date—December 30, 1901; “that after said deed was signed and acknowledged by said Williams, and on the 30th day of December, 1901 said Williams handed the same to F. E. Kidd, with instructions to the latter to keep the same and to give it to Laura Miller, the grantee named therein, after he (Williams) was dead; that said F. E. Kidd took said deed and kept it in his possession until the death of said W. H. Williams, and thereafter, on the-■ day of May, 1909, he delivered the same to the defendant, Laura Belle Miller Kidd, who is the same person named as grantee in said deed, and who, thereafter, on the twenty-fourth day of July, 1910, caused the same to be recorded in the office of the county recorder of Colusa County.

‘ ‘ 7. That it was not the intention of said W. H. Williams, when he delivered said deed to said F. E. Kidd, nor at any other time, to divest himself of the present title to said described premises, nor was it then, nor at any other time, his intention to vest a present title to said premises in the grantee named in said deed.

“8. That said deed was never delivered, and said W. H. Williams did not thereby part with his title in fee simple to said described real property.”

As conclusions of law the court found that said Williams never parted with his title'to said property; that he was the owner in fee simple thereof at the time of his death; that the deed in question was invalid and void; that defendants have no title or interest in said property and that, subject

Judgment was entered for plaintiff and intervener. Defendants moved for a new trial, which was denied, and this appeal is from both the judgment and order denying their motion.

The contention of appellants is that the evidence is insufficient to justify the finding of the court that the deed in question was never delivered by Williams. It is further claimed that error was committed by the court in its rulings on the admission of testimony.

It is well settled that a person may make a conveyance of property and place it in the hands of a third party to be delivered to the grantee named in it on the death of the grantor, and that such a delivery will be effectual to pass a present title to the property to the grantee, if the intention of the grantor is to make such delivery absolute and place it beyond the power thereafter to revoke or control the deed. Where delivery is made under these circumstances and with this intention, it is fully operative and effective to vest a present title in the grantee, the grantor retaining only a life estate in the property and the third party or depositary holds the deed as a trustee for the grantee named in it. (Bury v. Young, 98 Cal. 451 , [ 35 Am. St. Rep. 186 , 33 Pac. 338 ] ; Moore v. Trott, 156 Cal. 353 , [ 134 Am. St. Rep. 131 , 104 Pac. 578 ].)

On the other hand it is equally well settled that where a deed is deposited with a third party to be handed to the grantee on the death of the grantor, unless this is accompanied by an intention on the part of the grantor that title to the property shall thereby immediately pass to the grantee, there is no delivery of the deed and consequently no title is transferred. If the deed is handed to the depositary without any intention of presently transferring title, but, on the contrary, the grantor intended to reserve the right of dominion over, the-deed and revoke or recall it, there is no effective delivery of the deed as a transfer of title. So, too, if it be the intention of the grantor when he deposits a deed that it shall only be delivered to the grantee by the depositary after the death of the grantor, and that the title is to vest only upon such delivery after his death, then the deed is entirely inoperative as constituting an attempt by the grantor to make

Here the court found that the deed in question was signed and acknowledged by Williams and at the time handed. to F. E. Kidd, with directions to him to keep the same and give it to Laura Miller when hp (Williams) was dead, and that Kidd did so. Counsel for appellants claim that these facts as found by the court were legally conclusive to the effect, under the decisions above cited, that Williams delivered the deed with intent to immediately vest title to the property in the grantee, Laura Miller, subject only to the retention by him of a life estate therein, and that the further finding of the court that it was not the intention of Williams, when he handed the deed to the depositary Kidd, td divest himself of the present title to the property and therefore there was no delivery for that purpose is merely an unwarranted conclusion of law from such facts. But this position is not tenable. It may be true that if the only evidence in the case and the only facts found were as recited above with reference to the making of the deed—the instructions of Williams and the carrying out thereof by Kidd—it might be held that these were sufficient to show that the deposit of the deed with Kidd was accompanied by an intention on the part of Williams that title to the property should thereby vest immediately in the grantee. But it does not follow that on these facts as found the conclusion must necessarily follow that the intention of the grantor was to vest a present title in the grantee and the deed delivered for that purpose. All these facts may exist and it still be a question as to what was the intention of the grantor. Here the issue made by the pleadings was whether Williams, when he handed the deed to Kidd, under the instructions he gave him, intended to vest a present title in the grantee named in it and his delivery of the deed was made to effect that purpose.

It is essential to the validity of a transfer of real property that there be a delivery of the conveyance with intent to transfer the title, and the true test under which delivery is to be determined is in ascertaining whether in parting with the possession of the conveyance the grantor intended thereby to divest- himself of title.. If he did, there was an

The evidence in this case is made up of facts and circumstances occurring at the time of the making and delivery of the deed in question, and facts and circumstances occurring subsequent to that time forming no part of the res gestae, but received in evidence as tending to throw light on the intention of the grantor when he made and handed the deed to Kidd.

At the time the deed was made by Williams he was a man 70 years of age. He had a few years previously become afflicted with cataracts in both eyes, so seriously affecting his eyesight that he could hardly tell one paper from another. His faculties were not impaired. He was a .man of large affairs and had a business office in the town of Williams, possessed several ranches, and owned a large number of vacant town lots in Williams, as well as some improved property. On one of these lots was a livery stable, on another a hotel and others constituted the brick warehouse property. This latter was the best paying and the most desirable of his property. Williams made his will in 1904. Laura Miller was a grandniece of Williams, of whom he had several. Kidd was a clerk in the office of Williams and had been for a number of years prior to the making of the deed. Prom 1900 he was the manager of the warehouse property and prepared for Williams deeds, mortgages, and releases of mortgages and papers of that nature; attended to any work that came up in the office, and, as he defines his position himself, he was the general office man for Williams, attending to any work that was required of him. He attended to the insurance business and was a notary public.

The only evidence of what occurred at about the time the deed was prepared, signed, and delivered by Williams, is that of the depositary and nominal defendant, P. E. Kidd. He testified that he and Williams were the only persons present.

The witness also testified that he was engaged to marry Laura Miller at the time, these deeds were made, though he had not informed Williams about the matter, and it does not appear from the evidence that Williams ever knew anything about it. He further stated that it was his custom to enter up acknowledgments taken by him in his notarial register on the day or the day after they were taken; that he usually made a memorandum for that purpose and at the time of the execution of the deeds by Williams did so, but made no entry whatever in his notarial register of these deeds until several years afterwards. Nothing was further done by him respecting the deed in question until he married the grantee in 1903, when, a few days afterwards, he placed the deed to her in an envelope and indorsed it “October 23, 1903,” which was the only indorsement that he had made respecting the deed up to that time. Subsequently, on November 27, 1903, he made an entry in his notarial book as follows: “W. H. Williams,” leaving five blank leaves which, however, were never after-wards filled up; that after the deeds were executed nothing was ever said about any of them by either Williams or himself ; that he never mentioned to Laura Miller, before or after she became his wife, the fact that this.deed in question had been made in her favor, or until after the death of Williams. Williams had not asked him to keep or said anything to him about keeping the making of any of the deeds secret.

It further appears from the evidence that the three deeds other than the one in question here were never seen by anybody after their execution and were not found among the papers of Williams examined after his death. Whatever became of them is not known; at least the evidence does not disclose. They were not delivered; neither the wife nor the daughters of Williams ever saw them, nor did Kidd after they were placed in the safe by Williams. The latter never spoke of any of the deeds made, including the one in question, after they were made, nor did Kidd, until after the death of Williams. Subsequent to the execution of the deeds Williams made extensive improvements on the warehouse property,

These matters, in the main, make up the evidence under which the court was to determine whether, when Williams delivered the deed in question to Kidd, he intended thereby to pass a present title in the property to the grantee. The court found that he did not. This finding of the court, it is true, rests mainly upon inferences which it deduced from the facts and circumstances in evidence, but if these inferences were fairly and reasonably deducible from them, the finding must stand. This court cannot set aside the finding of the trial court unless it appears that there is no evidence to support it, “or the evidence is so clearly preponderating against the finding as made that it can be said that there is no substantial evidence to sustain it. We are satisfied from a full consideration of the evidence that this cannot be said.

Taking the facts and circumstances under which the deed in question was made, we think the court was justified, from a consideration of these alone, in concluding that it was not intended by Williams that the delivery of the deed in question to Kidd should pass to the grantee a present title to the property.

It is hardly to be assumed that a man actively engaged in business, as Williams was at this time, and making sales of his property as opportunity presented, contemplated divesting himself of title to all of it by deeds previously delivered with that intent. On the contrary, under the scheme which he had in view, he believed that in making these various deeds he would not be divesting himself of title to the property; that they would not interfere with his changes in the deeds or making transfers of the property represented by them should he make a sale of any of it, or should he desire to change the transfers; that though making separate deeds would involve much labor (a moderate estimate of the number of deeds which it would be necessary to make, based on an enumeration in the record of the pieces of property held by

But aside from the circumstances immediately connected with the making of the deeds, there were other circumstances which were to be taken into consideration by the trial court as bearing on the question of the intention and purpose of Williams respecting them. These deeds were clearly made as part of a scheme entertained by Williams, which contemplated several separate deeds to all his property. It of course cannot seriously be questioned but that whatever his intention was in the contemplated disposition of all his property ; whether it was to make a testamentary disposition of it by

As an additional circumstance further indicating that the making of these deeds was part of a testamentary scheme which Kidd knew had been abandoned at its very inception, is the fact that Kidd made no entry respecting these deeds at the time they were acknowledged in his notarial record, as the law requires he should do. (Pol. Code, sec. 794.) He did not do this until several years after they were executed. His excuse is that he did not make an entry at the time because he did not want their execution to appear as a matter of public record. But it is not suggested why the public or any member of it would be curious enough to try to ascertain from the notarial record whether Williams had made any deeds or not. Williams had not asked Kidd to omit the entries. He had enjoined no secrecy on Kidd whatever respecting the deeds. The trial court might well question the merit of the excuse given by Kidd in view of the fact that he did make an indefinite entry two years afterward and about a month after he married the grantee in the one in question, which removed in a measure the secrecy of the transaction which he was so solicitous to keep, and which entry he could just as well have made at the time the deeds were acknowledged. The trial court may have well concluded that the failure to make the entries at the time the deeds were made did not spring from any desire to preserve secrecy in the transaction, but because Kidd knew that the deeds were part of a testamentary scheme, abandoned at its inception, and that the deeds were not intended to be effective even for testamentary purposes, and hence no entry respecting any of them needed to be made.

There were further circumstances which were proper to be taken into consideration by the trial court; the failure of Kidd to make any suggestion to Williams or call his attention to the fact that he could not make a sale of the warehouse property or of the hotel property such as Becker was negotiating for with him and which he was disposed to make, because Kidd knew that if the deeds had the effect, as he claimed they had, of vesting a present title in Laura Miller, Williams could not convey the fee simple title to the property

Taking into consideration all these circumstances, it cannot be said but that they fairly warrant the inferences drawn by the trial court and on which its finding of nondelivery was based, that it was not the intention of Williams when he delivered the deed to Kidd to divest himself of present title to the premises described in the deed, nor was the deed delivered with any such intent or for such purpose; that this deed was made and handed to Kidd solely as part of a testamentary scheme which was abandoned at the inception, and this deed was intended and understood by both Williams and Kidd to be revoked by such abandonment.

There is, it is true, the circumstance that Williams never asked Kidd to return the deed in question to him. But Williams was devising his testamentary plan with his confidential clerk in his own office where the papers of both of them were

This brings us to a consideration of the assignments of error made by appellants as to the admission by the court in evidence of the conversation between Becker and Williams relative to the purchase and sale of the warehouse and hotel property; testimony as to the improvements made by Williams on the warehouse property, and other acts and declarations of Williams occurring subsequent to the making of the deeds in question.

It is, of course, well settled that acts and declarations of a grantor made after he has parted with the title to property and in disparagement of it are inadmissible when made in the absence of the grantee, and it is the claim of appellants that the conduct and declarations of Williams after the deed was handed to Kidd were inadmissible as contravening this rule.

But here the very question was whether Williams had ever parted with title to the property. This was the main issue in the case, the claim of respondents being that there had been no delivery of the deed with intent on the part of Williams to do so. The conduct and declarations of Williams covered a period subsequent to the making of the deed and while Kidd held' it as a depositary, and we are satisfied that such acts, conduct, and declarations of Williams with reference to the property during that period were properly admissible as bear

In support of their contention that these acts and declarations of Williams just referred to were inadmissible reliance is had by appellants on Bury v. Young, 98 Cal. 446 , [ 35 Am. St. Rep. 186 , 33 Pac. 338 ], If that ease is to be construed as holding that where the issue is whether or not the grantor so delivered his deed as to convey title, the acts and declarations, in short, the conduct, of the deceased grantor cannot be given in evidence in disproof of delivery, then we think that Bury v. Young should be overruled as contrary to sound reason and to the great weight of authority. This may be done without interference with any vested right, since, at the most, Bury v. Young but lays down a rule of evidence, and as the purpose of all rules of evidence is to aid in arriving at the truth, if it shall appear that any rule tends rather to hinder than to facilitate this result, to promote rather than to repress fraud, it should be abrogated without hesitation. In its language, however, it is to be noted that Bury v. Young does not lay down this rule. Its sole statement is that “the grantor’s declarations and acts made and done in his own interest months after the deed was delivered are not admissible as indicating his intention in delivering the deed.” (The italics are our own.) It is said that this principle is elementary, and so it is. It is further said that there is nothing in Dean v. Parker, 88 Cal. 283 , [ 26 Pac. 91 ], “trespassing upon that doctrine.” Neither is there. But it is to be noted that all of this is based upon the assumption of an actual prior delivery of the instrument. “Delivery” is a word of well-defined meaning in the law. It is the act, however evidenced, by which the instrument takes effect and title thereby passes. Of course it is true that after such delivery no acts or declarations of the grantor in derogation of his grant will be received. But where the vital question is whether or not he did deliver the instrument, and where, as always in such cases his lips are sealed by death, and the opposing testimony of the grantee or depositary, honest or fraudulent, cannot be contradicted by him, it is but an invitation to fraud and perjury and to their success to refuse

Turning elsewhere to the authorities, it will be found that there is a difference of view upon this question. Some courts, such as Illinois (Miller v. Meers, 155 Ill. 284 , [ 40 N. E. 577 ]), hold to the rule of evidence asserted to have been declared in Bury v. Young. Henry v. Phillips, 105 Tex. 459 , [ 151 S. W. 533 ], is to like effect. But in the Encyclopedia of Evidence many cases will be found cited to the effect that (to quote the text), “The grantor’s declarations, both prior to the execution of the deed and those made subsequent to the execution, are admissible.” .While to the further statement that they

As to the further claim of appellants that evidence of the conduct of Kidd—including his declarations to Morton— while he claimed to be holding the deed as depositary of the grantee were improperly admitted by the court. Proof of these acts and declarations of Kidd was through original and independent evidence offered by plaintiffs in their case in chief and not by way of impeachment. Conceding, without deciding, that as so offered by plaintiffs in their main case this evidence was inadmissible, we think nevertheless that such admission should not be held to be so prejudicial as to warrant a reversal. While it is a fact that Kidd was called by plaintiffs as a witness, and examined by them as to the delivery of the deed to him by Williams it was not essential to the making out of a case entitling them to the relief sought that they should have called him as a witness. As pointed out by their counsel in the last argument before this court, plaintiffs by adopting a different order of proof than was pursued by them on the trial below might have thrown on defendants the burden of proving the delivery of the deed in question and might have sustained their case without calling

The judgment and order appealed from are affirmed.

Henshaw, J., Sloss, J., Shaw, J., Melvin, J., Lawlor, J., and Angellotti, C. J., concurred.