Schade v. Stewart

SHENK, J., Dissenting.

I dissent. There are two ways by which title to real property may devolve. One is by operation of law and the other is by an instrument in writing

[666]

(sec. 1091, Civ. Code). The devolution here attempted was by an instrument in writing which was voluntary. In such case the party who is to take as grantee must be sufficiently ascertained by the writing itself, or it is a nullity.

(Rixford

v.

Zeigler,

150 Cal. 435 [119 Am. St. Rep. 229, 88 Pac. 1092].) The general rule that a deed to “ J. S. or W. S.” would be void for uncertainty is not questioned. Here the deed runs to the “heirs or devisees.” It must be assumed that there may be heirs who are not devisees and likewise that there may be devisees who are not heirs. If A .and B are heirs and not devisees and C and D are devisees and not heirs, a conveyance to “A and B or C and D” would seem to me to be fatally uncertain as to the parties grantee. Furthermore, to constitute a delivery of a voluntary conveyance there must not only be delivery by the grantor but an acceptance by the grantee.

(Bank of Healdsburg

v.

Bailhache,

65 Cal. 327 [4 Pac. 106]; 9 Cal. Jur., p. 149.) Who is to accept the conveyance here involved? Neither of the designated classes would act for the other. Their interests may be adverse. The analogy between the effect of this deed and the passing of title to the “heirs or devisees” by operation of law is by no means satisfactory. In the one case the law requires the voluntary act of the grantor to designate his grantee, who must be a natural or an artificial person capable of taking title and this designation must be certain. In the other case the law designates the repository of the title of deceased persons subject to administration. The one is a matter of contract among the incidents of which is certainty of contracting parties. The other is a matter of legislative control unrestrained by contract or by constitutional provision safeguarding the contractual relation. Without something further in the designation of the grantees herein I fail to see how the title vested in them, if it be vested, may be disturbed by creditors of the estate who would bo privileged to resort to the property to satisfy their claims if the title had been taken by the representative of the estate subject to administration. If they take at all they take by means of a voluntary conveyance from a third party, not subject to administration, or in a representative capacity, but as persons