Tassell v. Tassell

STURTEVANT, J.

Plaintiff commenced an action against the defendant to obtain a judgment canceling a deed purporting to convey a corner lot and improvements thereon located at Turk Street and First Avenue in San Francisco. Before the trial of the action the defendant died and his grantees were substituted. The judgment went for the plaintiff and the defendants have appealed.

In her complaint the plaintiff alleged that the property described in the deed was her separate property; that it was purchased by the plaintiff with moneys acquired before her marriage to the defendant; that on the twenty-second day of November she wrote out the deed and on the eighth day of December, 1919, she signed and executed it and placed it in her secret document box; that she never delivered it to the defendant, but did tell the defendant where it was; that thereafter, on the twenty-fourth day of February, 1920, while the plaintiff was sick, the defendant, without her con

[49]

sent or knowledge, took the purported deed from its hiding place and caused it to be recorded; and that the defendant has rnee refused to reconvey the property. In his answer the husband admitted many of the plaintiff’s allegations, but denied that the property was purchased with moneys acquired by the plaintiff before her marriage; and the defendant alleged that after the deed was executed the plaintiff delivered the document to him and that he returned it into her hands to be deposited among the private papers of the husband and wife; the defendant denied that the plaintiff had ever stated to him that he could have the deed recorded in the event of her death, but not otherwise; furthermore, the defendant alleged affirmatively that the plaintiff made, executed, and delivered the deed on the eighth day of December, 1919, and that ever since that date he had been the owner in fee simple of the property. The trial court found the facts in the language of plaintiff’s complaint in her favor; and it found the affirmative allegations contained in the defendants’ answer against the defendants.

The appellants do not state their points clearly and concisely. However, as we read their briefs, we understand them to contend, (1) that there was a delivery of the deed: (2) that the burden was on the plaintiff to prove nondelivery of the deed; (3) that the portion of finding VI to the effect that the plaintiff authorized the defendant to have the deed recorded in the event of her death is not supported by any evidence; and that the evidence does not support finding VII, which was written as follows: “That thereafter, while said plaintiff was ill, said Henry George Tassell secretly and without the knowledge or consent of said plaintiff removed said deed from said secret hiding place and broke off and removed the sealed covering in which said deed was contained, and on or about the 24th day of February, 1920, while said plaintiff was absent from home, said Henry George Tassell caused said deed to be recorded in the office of the recorder of the city and county of San Francisco, in volume 94 of official records at page 164.” Taking up these points in the order stated, we will not attempt to cite all of the evidence, but we will cite some of the evidence going to support our statements, and will state once for all that there is other evidence in the record going to substantiate the statements herein made. As to the delivery of the in