Gernon v. Sisson
Before: Chipman
Synopsis
Quieting Title bt Executor—Genuineness of Deed of Gift—Finding—Evidence.—In an action by an executor to quiet title to land, which involved the question of the genuineness of a deed of gift of ■the land to the defendant by the plaintiff’s testator, the evidence, although conflicting, is held sufficient to support the finding that the deed was genuine.
Ib.—Acknowledged Deed Admissible in Evidence Without Further Proof.—Such deed, properly acknowledged, was admissible in evidence without further proof, under section 1951 of the Code of Civil Procedure, and was competent evidence of a grant to the grantee from -the grantor.
Id.—Affidavit Denting Genuineness of Deed to Defendant—Effect of Affidavit.—The filing by .the plaintiff in such action, in pursuance of section 448 of the Code of Civil Procedure, of an affidavit denying the genuineness and due execution of the deed to the defendant, did not deprive the defendant of the right to offer such deed in evidence without further proof. The only effect of the filing of such affidavit, which constituted a part of the pleadings, •was to enable the plaintiff to controvert the genuineness of the deed.
Id.—Evidence—Conversations Between Grantee and Grantor— Grantee a Competent Witness.—Such action, not being against the executor, nor upon any claim or demand against the estate of the grantor, the grantee was a competent witness to testify to conversations he had with the grantor in his lifetime.
Id.—Delivert—Grantor Continuing in Possession—Adverse Possession.—A deed is presumed to have been delivered at its date. By its execution and delivery, the entire legal interest in the land vests in the grantee, and if the grantor continues in possession afterward his possession will be either as tenant or trustee of the grantee, and nothing short of an explicit disclaimer of such relation and a notorious assertion of right in himself will be sufficient to change the character of his possession and render it adverse to the grantee.
CHIPMAN, P. J.
Plaintiff brings this action as executor of the last will of Charles R. Wood, deceased, to quiet the title in the estate to certain land in Tehama County. Defendant claims title by deed executed by said Wood on January 20, 1903. Wood died June 1, 1911, and, in his last will, executed September 11, 1907, he specifically devised the land in question to certain named heirs of his deceased sister and nominated plaintiff as the executor of said will. The conveyance to defendant is conceded to be a deed of gift and contains the following provision: 1
“This grant, however, is with the express understanding and agreement that the party of the second part (the grantee) is to pay to the party of the first part (the grantor) one-fourth of all crops raised on said lands, during the lifetime of the party of the first part, and it is expressly understood and agreed that this reservation is intended between the parties hereto to be a reservation of a life interest in the property conveyed to the extent of such rental, but is in no way to interfere with the possession of said party of the second part to the said property, and this interest shall die with the party of the first part, and from and after his death, the party of the second part and his heirs and assigns will be relieved from such obligation. ’ ’
The cause was tried by the court and findings and judgment went for defendant. Plaintiff appeals from the judgment and brings the record here under the provisions of sections 941a to 941c and 953a to 953c of the Code of Civil Procedure.
Some other points are presented by the appellant which will be noticed, but the question of primary importance advanced by appellant is whether the deed from Wood to the defendant is genuine or a fabrication. On its face it conveys the fee absolute subject to the reservation above quoted and "if gen-
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nine the finding of the court that by it the title passed to defendant is supported.
It was in evidence that Wood and defendant were intimate friends at the time the deed was executed and that Wood had often expressed an intention to leave this property to defendant ; that he had no known relatives in whom he felt any interest. H. P. Andrews, a practicing attorney of Red Bluff, who had attended to Wood’s legal business, testified: That Wood came to him the day before the date of the deed and explained to Andrews that he wanted an instrument drawn which would convey the property to defendant, but wanted to reserve the use of the land or its rentals in himself during his life. Andrews prepared the deed as directed by Wood, who signed and acknowledged it before Andrews as notary public. Andrews testified: “I wrote the deed, and I think it was the next day that he came in and signed and acknowledged it, after having carefully gone over the matter again after it was written out. ... I asked him what I must do with the deed. He says, ‘You can either give it to Elmer (Elmer Sisson was the grantee) or you can keep it for him; I want him to have it; I want him to have the property.” I then took the deed and put it in the secret drawer of my safe, and I kept it there until last spring.” He testified that, shortly after the deed was signed, a few days later, he informed defendant of the deed. He was asked what arrangements, if any, were made with defendant in regard to the deed, and answered: “He told me to just let it stay there in the safe. Q. Then for whom were you keeping the deed
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