Holmes v. O'Brien

RICHARDS, J.

This was an action to quiet title to a piece of real property in the city and county of San Francisco, in the course of which the plaintiff sought to have set aside a decree obtained by Patrick O’Brien, one of the defendants, quieting his title to the same premises.

There is no very material dispute about the facts of the case, which the record shows to be substantially these: The plaintiff is one of the daughters of said defendant Patrick

[265]

O ’Brien and the other defendant and the appellant herein is his other daughter. During the last illness of Patrick O’Brien’s wife and the mother of the plaintiff and the appellant, there was some family discussion with reference to the plaintiff coming back to the family home and taking care of the father and mother, receiving a deed to the premises as the consideration for such care, as a result of which the plaintiff, who had been married, did return home and did care for her mother until the latter’s death. Thereafter and in the fall of 1903 the father solicited her to return and care for him, promising her to attend to the deed of gift. She accordingly with her two daughters made her home with her father on the premises in question, and undertook his support by her own labor and out of her own funds. Not long after this the father went of his own accord to a notary, and had the deed drafted, and then brought the notary with the deed to the home and presence of the plaintiff, and there the notary read the instrument, which had been duly signed and acknowledged, and then in the presence of the grantor handed it to the plaintiff. It was then by her handed back to the father, who wished to place it in the custody of Rev. M. P. Ryan, to be held by him—as he then and there stated—until his death and then to be recorded. The reason the grantor assigned for this was that he did not wish the grantee to mortgage the property while he lived. The deed was taken by him to the priest, and there remained until the year 1907. In the mean time the plaintiff had continued her support of her father, and had also caused to be erected a more substantial house upon the property costing two thousand dollars, describing herself in the recorded contract for its erection as the owner of the property. In October, 1907, O’Brien went to the priest and obtained the deed and destroyed it, and then caused to be commenced a proceeding under the McBnerney Act to quiet his title to the property. The plaintiff was not expressly made a party to this proceeding, nor was any mention or reference made to her residence upon or claim of title to the premises, nor was any personal service of process made upon her, nor was she otherwise apprised of the institution or course of these proceedings until after the orders and decrees therein had been made—during all of which time she was supporting her father upon the premises as before. Her first direct knowledge of his conduct came in the form of a letter from