Stone v. Greene

OLNEY, J.

This is a companion ease to

Stone

v.

Daily, post,

p. 571, [185 Pac. 665], and the material facts in both cases are there quite fully stated and need not be repeated. The deed designated in the opinion referred to as the Stone deed purported to convey to Mrs. Stone and her children all

[570]

of her mother’s, Mrs. Daily’s, estate, both real and personal. Upon Mrs. Daily’s death Fred A. Greene and the Bank of Lake, in whose custody was Mrs. Daily’s private box containing the deed and also certain money and other personal property, refused to turn the box with its contents over to Mrs. Stone. Mrs. Stone and her- children thereupon brought two suits, one against Mrs. Daily’s surviving husband to quiet title to the real property involved, and the other against Greene and the bank to recover the contents of the box. In the latter case, Mr. Daily intervened as a defendant and claimed the personal property involved as administrator of Mrs. Daily’s estate.

The plaintiff’s right to recover depended in both cases upon the validity of the Stone deed, and in both cases it was claimed by the defendants that the deed was invalid because not delivered. The trial in the suit involving the real property resulted in a finding that the deed had not been delivered and a consequent judgment against the plaintiffs. This judgment was appealed from, and it was this appeal which has just been determined. It was held that the finding that the deed had not been delivered was contrary to the evidence and the judgment was reversed.

In the suit for recovery of the personal property it was found, contrary to the result in the other case, that the deed had been delivered and judgment was given for the plaintiffs. The defendants appealed, and it is this appeal which is now under consideration. The sole reason of importance urged for a reversal is that the finding of delivery is not-supported by the evidence. The evidence in the present case is practically identical with that in the other as to the question of delivery or nondelivery of the Stone deed, with the exception that in this case it was expressly admitted by defendant’s counsel at the trial that Mrs. Daily when she handed the deed to Greene intended a complete and effective delivery and a present conveyance of the property, subject only to the reservation contained in the instrument. But regardless of this admission, the evidence clearly shows this to have been the fact. This is fully discussed in the other case, and that discussion need not be repeated here. Such intent determined the character of the delivery and sustains the finding that the deed was delivered.