Avery v. Avery

LANGDON, P. J.

This is an action to quiet title to five lots described in the- complaint and situated in Berkeley, Alameda County. From a judgment for the defendants, the plaintiff appeals. The defendants answered separately, each claiming a different portion of the land described in the complaint as grantees of Fidelius Avery, deceased. It is conceded that on the twenty-sixth day of May, 1915, title to this land was in Fidelius Avery, the foster father of the plaintiff. Plaintiff claims title thereto as his heir at law, asserting first, that the deeds under which the defendants’ claim as grantees were never delivered during the lifetime of the grantor, and, second, that if such deeds were delivered, they were nevertheless executed and delivered at a time when the grantor was insane and therefore incompetent to make any contract.

[1]

The first contention may be very briefly disposed of. The evidence upon the question of delivery was such that different inferences might reasonably have been drawn therefrom, and under such circumstances the finding of the trial court is conclusive.

[2]

The fact that the grantor requested that the deeds should not be recorded until the happening of some future event would have no effect upon their delivery.

(Lewis

v.

Brown, 22

Cal. App. 38, [133 Pac. 331].) The deeds would pass title without recording. In so far as the deeds to Franklin Avery are concerned, there can be no doubt that there was an unconditional delivery to him which passed title. These deeds were delivered to him personally, and section 1056 of the Civil

[102]

Code, provides that: “A grant cannot he delivered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made.”

(Mowry

v.