Perry v. Wallner

PEEK, P. J.

Defendant, as administrator of the estate of Ted A. Perry, appeals from an adverse judgment in an action to quiet title to certain real property -which was instituted by plaintiffs. The court found there had been no effective delivery of the deed to decedent and entered its decree accordingly, quieting title in plaintiff grantors, Glen and Irma Perry.

Defendant contends: (1) that the evidence clearly establishes that there was a constructive delivery of the deed; (2) that the trial judge was guilty of prejudicial misconduct ; and (3) that the trial judge erred in denying defendant’s motion to dismiss.

Defendant’s first contention is, for all practical purposes, nothing more than an attack upon the sufficiency of the evidence to support the judgment. We are therefore first confronted with the traditional rule on review that is more honored in its breach than in its observance.

(Crawford

v.

Southern Pac. Co.,

3 Cal.2d 427 [45 P.2d 183].)

Viewing the evidence as we must in light of the rule enunciated in the

Crawford

case, the record shows that Glen Perry, father of the decedent, conferred at length with his attorney concerning matters affecting his estate. He was advised by the attorney that he could reduce his estate taxes by gifts during his lifetime. Sometime later, Glen requested his attorney to draft two deeds, the first being the one here in issue. This deed was executed by Glen and his then wife (Glen had been previously divorced from decedent’s mother),

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and given to the attorney for transmittal to Sacramento for recordation. Both Glen and his wife testified they did not intend to convey title to decedent at that time.' Glen testified that before completing the gift he wanted to be satisfied in his own mind that the decedent intended to settle on the ranch and operate it himself. Decedent had no knowledge of the execution of the deed. Pursuant to Glen’s instructions, the attorney forwarded the deed to Sacramento for recordation. But because the filing fee was inadequate, the deed was not recorded and the attorney was notified as to the additional amount due.