Mowry v. Heney

California Supreme Court Nov 26, 1890 No. No. 11705Published

Before: McFarland, Works

AI Brief

AI-generated · verify before citing

Holding. A deed absolute on its face that has been delivered to the grantee cannot be rendered conditional or defeated by parol evidence of an intention that it should only take effect upon the grantor's death.

Issues

Whether a deed absolute on its face can be shown by parol evidence to be subject to a condition not expressed in the instrument.
Whether findings of fact that do not match the allegations of the answer support a judgment.
Whether a judgment against a surety on an appeal bond taken without notice is void.

Disposition. reversed

Quotations verified verbatim against the opinion

“Whether a deed, when delivered, shall take effect absolutely, or only upon the performance of some condition not expressed therein, cannot be determined by parol evidence.”

“The deed in this case, being absolute upon its face, and having been delivered to the grantee himself, took effect at once.”

Synopsis

Fraudulent Conveyance — Deed in Lieu of Will — Fraudulent Record — Quieting Title — Pleading — Findings—Support of Judgment. — In an action to quiet title brought by the grantee of a deed against a subsequent purchaser at an execution sale, who was the judgment creditor of the grantor, and who alleged, in his answer, that the deed to the plaintiff was made to defraud the creditors of the grantor, a finding that the deed was made by the grantor when ill, with the intention, known to the grantee, that it should not take effect except in lieu of a will upon the death of the grantor, and that upon recovery of the grantor a record of the deed was made with intent to defraud the creditors of the grantor, is wholly inconsistent with the defense pleaded, and cannot support a judgment for the defendant.

Id. ■— Trust Agreement. — Snch finding is not responsive to an allegation in the answer that the plaintiff agreed to hold the title in trust for the grantor, and to reconvey it upon demand, where the court fails to find any such agreement.

Id__Effect op Delivery op Deed — Passing Title — Conditions — Parol Evidence — Testamentary Intention.—When an absolute deed has been delivered to the grantee, the title becomes vested free from any conditions, and its operation cannot be defeated by parol proof of an intention on the part of the grantor, known to the grantee, that it should not take effect except in event of the grantor’s death; nor is parol evidence admissible to show that the delivery of the deed to the grantee was subject to any condition not expressed therein.

Id__Escrow. — A deed cannot be delivered in escrow to the grantee, but only to a third person.

Undertaking on Appeal — Validity of Judgment against Sureties — Notice—Execution Sale. ■—A judgment taken against the sureties upon an undertaking on appeal, upon motion, without notice, is valid, and will support an execution sale thereunder.

Opinion — Works

Works, J. This is an action to quiet title. The plaintiff claims title under a deed from her mother, Laura A. Mowry, and the defendant claims under a judgment and execution sale of the property against the same party, the judgment having been recovered against the said Laura A. Mowry subsequent to her conveyance to the plaintiff. The judgment of the court below was in favor of the defendant, and the plaintiff appeals from the judgment, and from an order denying her a new trial.

The defendant pleaded two defenses to the action. The first was, that the deed to the plaintiff from her mother was made when the latter was insolvent, and was made to defraud creditors, and that the defendant was then a creditor, who subsequently recovered judgment against the grantor, and levied upon and sold the property in controversy under execution, himself became the purchaser, and received a sheriff’s deed therefor. The second set up the recovery of the judgment, the levy of execution, sale of the property, the purchase, receipt of a sheriff’s deed by him, and alleges further: “ That, on said eleventh day of May, 1881, said Laura A. Mowry was the owner of the real estate described in said second count of said complaint; that the legal title of said real estate was, until the conveyance to plaintiff, as hereinafter alleged, in one Charles Mayne, who held said title in trust for and as the agent of said Laura A. Mowry, and had no other interest therein; that on-day of -, 1882, and while said undertaking, made and executed by said Laura A. Mowry, was in full force and effect, she, the said Laura A. Mowry, was dangerously ill, and in apprehension of immediate death, and in lieu of a last will and testament, and to avoid an administra[473]tion of her estate in the event of her death, she, the said Laura A. Howry, made and executed, and caused said Charles Hayne, the trustee, as aforesaid, to make and execute with her, a deed to said plaintiff of, in, and to said real estate; that said plaintiff was and is the daughter of said Laura A. Howry, and said deed was made to her without any valuable consideration whatever, but the same w'as made, and caused to be made, by said Laura A. Howry, in view of immediate death; and it was understood and agreed, by and between the plaintiff and said Laura A. Howry, that said deed should only have effect in the event of her death, and that in the event of her recovery from said illness the said plaintiff would hold and retain the legal title thereto in trust for her, and would convey the same to her upon demand; that said Laura A. Howry did recover from her said illness, and the plaintiff held and retained the legal title of said real estate in trust for her until the levy thereon and sale thereof under an execution issued upon said judgment against said Laura A. Howry, as hereinafter alleged.”

Mowry v. Heney

AI Brief

Synopsis

Opinion — Works

More from California Supreme Court

Related research

Concurrence — McFarland

AI Brief