McCarthy v. Security Trust & Savings Bank

SLOANE, J.

This appeal is from a judgment of the superior court of the county of Los Angeles, quieting title in plaintiff and respondent to real estate in the city of Los Angeles.

An appeal was taken to this court by the defendant, and was transferred to division one of the first district court of appeal. The case comes back to this court upon an order for hearing after a reversal of the judgment by the district court of appeal.

The opinion of the district court summarizes the facts in the ease as concisely and clearly as it could be put into words:

“Plaintiff’s action is declared upon a deed claimed to have been witnessed and acknowledged before a notary. The deed itself is lost, the notary dead, his records destroyed, and it is admitted that no one other than the plaintiff, her grantor and the notary, ever knew of its existence, plaintiff keeping knowledge of the conveyance an absolute secret. Aside from this the deed was never recorded, and the grantor after the alleged conveyance assumed apparent ownership in the property. She remained in absolute possession and exercised full and complete dominion over the same. She collected the rents, paid the taxes and mortgaged the property, the acknowledgment to which instrument was taken before the very notary whom plaintiff alleged prepared her deed and who knew of the existence and contents thereof. . . .

[231]

“From plaintiff’s testimony it appears that one Mary G. Nicolson was for many years prior to the conveyance here alleged the owner of the property in question. In the month of April, 1915, she became seriously ill, and was advised by her physician that she had not long to live. Upon receiving this information she sent for the plaintiff, her sister, who remained with her for about two months. A few days after plaintiff’s arrival, Mrs. Nicolson, believing she was about to die and for the purpose of disposing of her estate, requested plaintiff to summon a Mr. Stedman, a notary public who had attended to her business affairs, for the purpose of preparing a deed to the property in question. Accordingly, so plaintiff testifies, the notary was directed to and did prepare the conveyance from Mrs. Nicolson to plaintiff. A day or so thereafter a deed to the same property was, under the direction of Mrs. Nicolson, made by plaintiff to a son of Mrs. Nicolson, who was her only child. By the terms of this last mentioned deed the plaintiff, so far as can be gathered from her testimony, retained a life interest in the property with remainder over to the son of the original grantor. Both deeds were signed by the respective grantors, duly acknowledged with notarial seal affixed. The deed so executed by plaintiff to the son of the grantor was made by plaintiff at the request of Mrs. Nicolson, who feared that plaintiff might accidentally get killed.”