Hefner v. Sealey

[19]

SLOSS, J.

The administrator of the estate of Mary Sealey, deceased, brought this action to quiet title to two parcels of land in Butte County. The plaintiff and the five defendants are the surviving children and the heirs at law of Mary Sealey.

All of the defendants except Ida M. Sealey defaulted, and the plaintiff took judgment against them as prayed. Ida M. Sealey answered, asserting title under two deeds from Mary Sealey, dated March 10, 1906. The property in controversy consisted of a lot in the city of Oroville and of a tract of country land. The first of the deeds purported to convey the city lot and five acres of the country land to Ida M. Sealey. The second was a conveyance of the remainder of the country land to the plaintiff and the five defendants. Plaintiff’s intestate died on July 18, 1910, and the deeds were not filed for record until after her death. The sole point in controversy between plaintiff and Ida M. Sealey, the nondefaulting defendant, was whether these deeds had been delivered. The court found that there had been a delivery, and gave judgment that defendant Ida M. Sealey was the owner in fee of the land described in the first deed, and of - an undivided one-sixth interest in the land described in the second.

The plaintiff appeals from this judgment and from an order denying his motion for a new trial.

The appellant contends—and this is the only point made— that the evidence does not support the finding of delivery. There is neither dispute nor room for dispute regarding the law applicable to the situation. The delivery of a deed is not effected by a mere manual tradition of the instrument, unless the act “be accompanied with the intent that the deed shall become operative as such”

(Kenney

v.

Parks,

137 Cal. 527, [70 Pac. 556]), i. e., that it shall presently pass title, without the reservation of any right of revocation or recall.

(Follmer

v.

Rohrer,