Angel v. Jolly

CONREY, P.

The plaintiff is the mother of the defendant. In the year 1925, and prior thereto, plaintiff was the owner of the property described in the complaint and was living thereon with the defendant and the defendant’s husband. In the year 1925 the plaintiff signed and acknowledged a grant deed of said property to the defendant and placed the same in the plaintiff’s safe deposit box, intending that it should be delivered to the defendant at plaintiff’s death. This deed, hereafter referred to herein as the first deed, was never delivered, but remained in plaintiff’s possession at the time of trial of this action. The foregoing facts are admitted, except that appellant now suggests that there is no evidence that plaintiff had title tó the property and that therefore plaintiff is not in a position to demand a decree quieting title. We think, however, that the ease was tried upon the theory, accepted by both parties at the trial, that plaintiff was the owner of the property unless she had conveyed it to the defendant. Incidentally there is abundant evidence that the plaintiff does have the title unless the defendant is entitled to prevail by virtue of the deed of conveyance to her. The chief controversy is over what is called the second deed.

The plaintiff alleged that in March, 1926, the defendant and her husband falsely and fraudulently represented to the plaintiff that her first deed was void for the reason that it had become

outlawed;

that relying on said statement and being thereby deceived, the plaintiff signed and acknowledged a new deed upon the understanding that the new deed would be placed in plaintiff’s safe deposit box and there remain and not be delivered or recorded until after the death of the plaintiff; that thereupon after plaintiff had acknowledged and signed said deed defendant, without the consent

[383]

of the plaintiff and against her will and protest, took possession of said deed and thereafter caused it to be recorded in the official records of the county. Omitting some of the details of fact alleged in the complaint, the foregoing allegations of fact constitute the principal issues tendered, and which were denied by the answer, and upon which the court made its finding in favor of the plaintiff, and the judgment was entered from which the defendant appeals.