Howell v. Mays

[752]

HAINES, J.,

pro tem.

This action was brought to set aside a deed of conveyance from respondent, an aged man, to appellant Sarah E. Mays, his daughter, of certain premises in the city of San Diego, California, theretofore occupied by him as his home. Appellant Levi Mays is the husband of the said Sarah E. Mays. The complaint asserts that the deed was signed on April 1, 1927, by respondent; that respondent at the time was, and had for two months previously, been very ill of an illness from which, when the deed was signed, he was not expected to recover; that he signed the deed on the special understanding with appellants in whom he had particular confidence, that it should neither be recorded nor pass from him the title to the property except only in the event of his death from that particular illness; that appellants, in violation of the understanding and without respondent’s knowledge, proceeded to record the deed, of which respondent did not learn until October 17, 1927. The suit was filed within three days thereafter. The answer alleged the execution and delivery of the deed to appellant Sarah E. Mays in consideration of love and affection,' without any reservations whatever, denied that respondent was at the time particularly ill, alleged that respondent had expressly stated his intention that it immediately pass the title, denied any understanding to the contrary and denied any understanding that it should be effective only in the event respondent died from the illness with which he was then suffering and denied any understanding that the instrument should not be immediately recorded.

The ease was .tried before the court with an advisory jury, which, in answer to special interrogatories, found that respondent did not deliver the deed with the intention of passing any title to the property and that it was without consideration. The jury’s determination was adopted in the findings of the court and judgment canceling the deed was rendered accordingly.

(1) It is claimed in support of the appeal that, though the evidence had warranted the conclusions of the jury and the court, all that would follow would be that the deed passed to appellant Sarah E. Mays the title to the property, subject to a life estate retained by the respondent. There is no merit in the contention. The court has found on conflicting evidence that there was no delivery