Bank of Healdsburg v. Bailhache

McKee, J. The existence and validity of a deed as translative of the title of a married woman to a tract of land, held as her separate-estate, is the question presented for consideration in this case. Josephine Bailhache, the wife of her co-defendant, John Bailhache, was seized in fee as her separate property of the land described in the pleadings. On the 12th of June, 1880, she executed a deed of it to the plaintiff. Delivery of the deed at the time of its execution is affirmed by the plaintiff and denied by the defendants. If it was not delivered it is not her deed; for one of the essential requisites of a good deed is that it be délivered by the grantor or his attorney. A deed take»effect only from its tradition or delivery; and if it wants delivery, it is void ah initio. (2 Blackst. Com. 308; Barr v. Schroeder, 32 Cal. 610.) “ Delivery is either actual, i. e., by doing something and saying nothing, or else verbal, i. e., by saying something and doing nothing, or it may be by both. And either of these may make a good delivery and perfect deed; for otherwise, albeit it be never so well sealed and written, yet is the deed of no force. And though the party to whom it is made take it to himself or happen to get it into his hands yet will it do him no good, nor him that made it any hurt until it be delivered. And a deed may be delivered by the party himself that doth make it, or by any other by his appointment or authority precedent, or [329]assent or agreement subsequent, for omnis ratihabitio mandato cequiparatur.” (1 Shep. Touch. 57.)

Here the deed was well executed; and, after its execution, it was placed in the hands of a person who was, at the time he received it, a director of the bank of .Healdsburg; but when he received it the grantors forbade him from delivering it to the bank until the consideration for which it had been executed was fully arranged between them and the bank. This action by the defendants involved or resulted in a disagreement as to what was the consideration. But notwithstanding the disagreement, the plaintiff contends that the deed was in fact delivered in the circumstances attending its execution.

The circumstances were these: John Bailhache was cashier and one of the directors of the bank of Healdsburg; at the same time Jonas Bloom was president and also one of its directors. While acting as cashier, Bailhache had overdrawn his account with the bank to the extent of about ten thousand dollar’s; and he owed the firm of “Bloom & Cohn” (of which firm Jonas Bloom was a member), twelve thousand three hundred dollars, secured, in part, by stock in said bank belonging to the debtor. When the amount of Bailhache’s overdraft was discovered, the directors of the bank verbally notified him that he must make his account good or resign. Upon this notification, Bailhache made out his resignation, signed it, and delivered it to one of the directors. There was no meeting of the directors called to consider it, nor does there appear to have been any official notice taken óf the delinquency or the resignation. While the matter stood in that condition, Bailhache informed two of the directors that he had induced his wife to convey her land to the bank in satisfaction of his debt, in consideration that the bank would release him from the debt, loan him the further sum of five hundred dollars, and retain him as cashier at a salary of one hundred dollars per month. Upon that information the two directors returned to him his resignation, delivered him the key of the bank, and restored him to his position as cashier. This was done “with the individual consent of each director.”