Kuenzel v. Grettenberg

GRIFFIN, J.

Plaintiff and appellant appealed from an adverse judgment in a suit to quiet title to certain property in San Bernardino County. She is the widow of Simon Kuenzel, who died in 1940. The acreage involved was taken up as a homestead. A patent was issued to that land in 1921. Under probate proceedings the property was set aside to the plaintiff widow on August 24, 1942. Defendant and respondent Maude A. Grettenberg set up a claim to an undivided one-half interest therein by virtue of a grant deed from plaintiff dated August 3, 1942, and recorded August 14, 1942. It should be here noted that the deed was made and recorded prior to the date and recordation of the order setting aside said property to the widow in the probate proceedings. The validity of this deed is the crucial issue in this case.

Plaintiff’s contention is that she and the grantee executed the deed in an attorney’s office and that it was not to be delivered to the grantee but was to be used only for the purpose of evidence before the Water Commission involving some water rights claimed by plaintiff and which also involved a purported water lease to be executed by the defendant.

Defendant Maude A. Grettenberg contends she knew nothing of this claim and argues that she had paid as consideration for the deed over $1,000, for the care of the property for several years, and of plaintiff Mrs. Kuenzel, who was blind; that she had also paid $42 for the probate fees in the estate, and agreed to jointly develop the entire property with plaintiff and to put in auto courts. She then testified that similar acreage on the desert could be bought for $1.00 per acre and that there were only 39 acres here involved; that a few days after the deed was executed she asked the attorney to mail

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the deed to her and that he did so; and that she immediately recorded it. Plaintiff denies these facts.

The attorney testified that defendant Maude A. Grettenberg paid $42 to him as probate fees and it was his understanding as to the delivery of the deed that it was to go to the defendant, with title dependent only upon the decree assigning the estate to the plaintiff widow; that there was no 11 condition attached to it as far as I know. ’ ’

Plaintiff argues that since the deed was given to a third person to hold until the happening of a contingency, it does not operate as a delivery to the grantee until the fulfillment of such condition, and delivery by the depositary, contrary to the direction of the grantor, does not pass title, citing