Kinney v. Kinney

LANGDON, P. J.—

This is an appeal by the interveners from a judgment against them. The plaintiff and defendant are husband and wife, between whom divorce proceedings were pending at the time of the trial of this action. The plaintiff George F. Kinney commenced an action against the defendant Susan Jane Kinney, alleging that on December 7, 1920, he had deeded to her certain real property in the city and county of San Francisco with the understanding that the said deed should not be recorded nor become operative unless plaintiff died or became seriously ill, and with the further understanding that said deed should be kept in a tin box in the home of plaintiff and defendant and accessible to both parties and that plaintiff might destroy said deed at any time if he so desired; that said deed remained in said box as agreed between the parties until July 28, 1922, when the defendant abandoned and deserted the plaintiff and in violation of said agreement between them caused said deed to be duly recorded. It was prayed that said deed be declared void and that the title to said property be declared vested in plaintiff.

Defendant answered and denied that any agreement, as alleged, was entered into between the parties and asserted that the property had been deeded to her by her husband as a gift, without any conditions or limitations whatsoever.

[194]

The interveners and appellants, sisters and brothers of plaintiff, then entered upon the scene with a complaint in intervention, setting forth that the real property was owned by their mother, Caroline Kinney, at the date of her death,, March 18, 1919; that she died intestate, leaving interveners and plaintiff George F. Kinney as her only heirs at law, each of whom became the owner of an undivided one-fifth interest in said property; that shortly after the death of their said mother, Caroline Kinney, George F. Kinney caused to be recorded a deed of gift from Caroline Kinney to himself, conveying this property; that said deed so recorded had never been delivered to George F. Kinney by his said mother and was void, therefore, and of no effect. That, thereafter, George F. Kinney executed a deed to defendant Susan Jane Kinney, purporting to convey said real property to her. Interveners pray that they each be adjudged the owner of an undivided one-fifth interest in said real property.

George F. Kinney failed to answer the complaint in intervention and his default was' entered. The trial court found against him upon the issue raised • between himself and the defendant with reference to the limitation upon the deed given to her, and as the evidence upon this question was conflicting, we are not concerned with that issue. The interveners, in attempting to prove their case, called George F. Kinney as a witness. Pie did not attempt to contradict the terms of his conveyance to defendant, but upon being questioned as to the source of his own title, stated that his mother, Caroline Kinney, had executed a deed to him, but had never delivered it to him; that he never saw it until about a week after her death, when he opened a tin box which had- belonged to his mother and there found the deed which he recorded; that no one told him to open this box and that he had never had access to it during the lifetime of his mother; that he had thought at the time of recording said deed and at the time of making the deed to Susan J. Kinney that the undelivered deed of Caroline Kinney vested title in him to said property. There is nothing in the record to contradict, in any manner, this testimony regarding the nondelivery of said deed from Caroline to George Kinney, and had it remained in the record the trial court must have