Central Trust Co. v. Stoddard

COOPER, J.

Action to quiet plaintiff’s title to the lands described in the complaint. The case was tried before the court, findings filed and judgment entered in favor of plaintiff. The court afterward granted defendants’ motion for a new trial, and from the order so made the plaintiff has appealed.

The order was general in its terms, and all presumptions are in its favor. This court will examine the entire record upon which the order was based, and if there be found in the record any error which would have justified the court in making the order it will be affirmed.

(Baldwin

v.

Napa etc. Wine Co.,

1 Cal. App. 215, [81 Pac. 1037], and cases cited.) One of the grounds of the motion was the insufficiency of the evidence to justify certain material findings, and in such ease the motion is addressed to the discretion of the court below, and will not be reversed except it appears that there was an abuse of such discretion.

(Bledsoe

v.

Decrow,

132 Cal. 314, [64 Pac. 397];

Estate of Motz,

136 Cal. 560, [69 Pac. 294];

Baldwin

v.

Napa etc. Co., supra.)

The record shows that prior to September 1, 1902, David FitzGibbon, deceased, was the owner and seised in fee simple of the property. That on said day said FitzGibbon executed

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and acknowledged a deed, conveying said property to his two aged sisters, Mary Ann McCann and Eliza Stoddard. After the death of said FitzGibbon the deed was recorded, and defendants claim through said deed. If the deed was delivered by FitzGibbon to the grantees therein named the title was in defendants, and the judgment should have been in their favor. Whether or not a deed is delivered is a question of fact, to be determined in each case by its own particular circumstances. It must appear, in order to constitute a good delivery, that the grantor intended to part with the title to the property described in the deed, and that he parted with the deed by placing it beyond recall. While between a grantor and a grantee the question of delivery is one to be determined by a preponderance of evidence, the rule is somewhat different where the rights of third persons have intervened. In such case the proof of nondelivery should be clear and convincing. The deed signed and acknowledged before a notary public was