Messersmith v. Smith

NOURSE, J. This is an action to quiet title commenced by the plaintiff as administratrix of the estate of Elizabeth Hans, deceased, against the defendant as executor of the estate of Elizabeth Schwan, deceased. Judgment was rendered in favor of the plaintiff. Defendant appeals under [447]the provisions of section 953a of the Code of Civil Procedure.

For a long time prior to and on November 10, 1911, Elizabeth Schwan was the owner of the tract of land described in the complaint. On that day she made a deed of this property conveying an undivided two-fifths thereof to Elizabeth Hans, an undivided two-fifths to Conrad Scholl, and the remaining one-fifth to Elias Trust. Deceased’s deed was executed under the direction and advice of her attorney, who testified at the trial that the grantor delivered the deed to him in escrow with instructions that he deliver it to the grantees upon her death. Subsequent to its delivery the grantor procured the deed from her attorney on more than one occasion and exhibited it to some of her friends. On one of these occasions she returned to the office of her attorney and told him that the deed had been destroyed. It was never seen thereafter, but, over the objection of appellant, what purported to be a typewritten carbon copy of the original deed was produced by the attorney who drew it and was received in evidence. Some time after the destruction of the deed the grantor therein made and executed her will disposing of this same property. The defendant is the executor under this will.

The appeal is based upon the grounds: (1) That Scholl and Trust should have been made parties to the action; (2) that the testimony of the grantor’s attorney was inadmissible; and (3) that the evidence was insufficient to support the findings of fact.

[1] (1) It appears that the interests of Scholl and Trust were not disclosed until the trial of the ease. No allegations appear in the complaint relating to the fact that these parties asserted any claim against the interests of the parties who were named in the action. Thus no demurrer was filed raising the point of nonjoinder of parties. It seems to be conceded that under the deed Scholl and Trust were both tenants in common with the administrator of the estate of Elizabeth Hans, a fact which appeared for the first time when the deed was offered in evidence. Such being the case, it was not necessary to stop the proceedings in order to make either Scholl or Trust a party to the action. As tenant in common the administrator was entitled to sue