Zihn v. Zihn

ANGELLOTTI, J.

This is an action to obtain a decree adjudging that the plaintiff is the owner of a lot of land, forty-three by about one hundred and fifty feet, on Twelfth Street, in the city and county of San Francisco, and annulling a deed of gift of the same, purporting to have been executed by plaintiff to his three unmarried daughters, defendants herein. Judgment went for defendants, decreeing them to be the owners in fee of said property, subject to a life estate in plaintiff therein, and plaintiff appeals from an order denying his motion for a new trial.

The complaint proceeds upon the theory that

the

deed of gift was never delivered by plaintiff to the daughters as a conveyance to them of the property described therein, but was simply given by him into their possession to be kept for him among his other papers, and not recorded, until such time as he was ready to deliver it to them, they promising to so dispose of and keep it, and he by reason of his trust and confidence in them, relying on their promise to do so. It contains allegations of the confidential relations existing between plaintiff and his unmarried daughters, and the reasons why he was induced to sign and acknowledge the deed and give it to them for safe keeping, but these allegations all apparently go to the ultimate fact alleged that there was no valid delivery of the deed, and not to the proposition that there was an executed conveyance induced by fraud

or

undue influence.

The trial court found that on the fourth day of January, 1902, the plaintiff “made, executed and delivered to the defendants Clara G. Zihn, Emma A. Zihn and Elizabeth D. Zihn, as grantees, his certain deed of conveyance” of the property, “and that at the same time it was understood and ' agreed by and between the parties thereto that the plaintiff should have a life estate therein and that said grantees should become the owners in fee thereof, subject to plaintiff’s life estate and right to use and occupy the same for his life,”

[407]

and further that “plaintiff unconditionally delivered said deed to said defendants, and it was not merely delivered to be placed among his papers for safe keeping and not to be recorded, and it was not agreed that it should be returned to him upon demand.” These findings completely negative the allegations of the complaint as to want of delivery of the instrument, and plaintiff is forced to contend that they do not find sufficient support in the evidence given on the trial. There is no warrant in the record for any such claim. The deed was in the possession of the grantees, and therefore, presumably had been delivered.