Gaschlin v. Sierra

RICHARDS, J.

This is an appeal from a judgment in favor of the defendant in person and as executor of the will of Karl Theodore Schuppert, deceased, in an action by the plaintiff to quiet title to a certain piece of real estate against said defendant and said estate. The court granted a motion for nonsuit at the close of the plaintiff’s case, basing its action in doing so upon its conclusion from the plaintiff’s testimony that the deed from said Karl Theodore Schuppert to the plaintiff, on which he relied to establish his ownership of said property, had never been delivered to him.

The facts of the case, as shown by the plaintiff’s testimony, may be briefly summarized as follows: Karl T. Sehuppert had for some years prior to December 6, 1911, been and on that date was the owner of a house and lot on Waller Street, in San Francisco. He and the plaintiff had been on friendly terms for a number of years, and the latter had done for the former, who was the older man, many little kindnesses. On the sixth day of December, 1911, Karl T. Schuppert, taking the plaintiff with him, went to the office of a scrivener and there caused a grant, bargain, and sale deed of said premises to be made to the plaintiff as the grantee thereof, which deed, when drawn, he signed and acknowledged before a notary public. When this had been done Schuppert, taking the deed, went with the plaintiff to the offices of the Merchants National Safe Deposit Company, where Schuppert had a safe-deposit box. When they arrived there Schuppert sat down and, taking the deed from his pocket, handed it to the plaintiff, saying, “This is what the old man has done for you. This is yours.” The plaintiff read the deed through and handed it back to Schuppert, who placed it in his safe-deposit box. Schuppert then caused the plaintiff to be entitled to access to the box, and he received a key to it. At some time during this episode Schuppert asked the plaintiff to give him ten dollars, which he did, and in this connection it may be noted that the consideration named in the conveyance was ten dollars. The

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parties then left the safe-deposit vaults and went to the premises on Waller Street, where the plaintiff was residing, and when they arrived there Schuppert said to him: “Fred, remember what I tell you. When I am gone, when I am passed out, take that deed and have it recorded.” Thereafter and up to the time of his death Schuppert remained in the.full possession and control of the premises in question, collecting or causing to be collected its rents and applying the same to his own uses. ” The plaintiff never saw „the deed again except upon one occasion, in the month of October, 1913, when Schuppert being ill and in bed, requested the plaintiff to go to the safe-deposit vaults and get the deed and bring it to him. This the plaintiff did and left the deed with Schuppert. A few days later at the latter’s request he took the deed again to the safe-deposit vaults and left it there. On June 14, 1917, Schuppert died, and the defendant Celso T. Sierra was appointed executor of his last will and testament. When the safe-deposit- box was opened, after the death of Schuppert it was found to be empty, and there is evidence to the effect that at some time between October, 1915, and the date of Schuppert’s death he had sent for and destroyed the deed; at any rate, it was never found nor produced at the trial of the action.