Denis v. Velati

Sharpstein, J. The plaintiff, in his complaint, alleges that on the twenty-ninth day of April, 1890, he made a deed of certain real estate, in said complaint described, wherein and whereby he granted, bargained, and sold said real estate to the defendant.

“ That said deed was made in view of death, and was intended by plaintiff to take the place of a will, for the [224]purpose of avoiding and doing away with the necessity of probate proceedings after the death of plaintiff, all of which was explained to the defendant and understood by her.

“ That by understanding with defendant, said deed was placed in her hands ostensibly for the purpose of enabling defendant, after the death of plaintiff, to establish the necessary proof as to the validity of said deed; but in fact it was understood by and between plaintiff and defendant that said deed should not take effect until after the death of plaintiff.

“ That after the acknowledgment of said deed by plaintiff, the same was retained by him, and remained in his possession until the wrongful taking thereof by defendant, as hereinafter stated. Said deed was never delivered to defendant.

“That it was further understood by and between plaintiff and defendant that plaintiff should retain the possession of said deed until he would die, and that said deed should not he recorded or take effect before the death of plaintiff.

“ Plaintiff further alleges herein that said defendant wrongfully, and in violation of said understanding in relation to said deed, afterwards, on or about the twenty-fourth day of June, 1890, unknown to plaintiff and without his consent, and during the time he was sick at the French hospital in San Francisco, obtained possession of said deed from the place plaintiff had it deposited, and had the same filed for record in the county recorder’s office of said county of Alameda.

“That said record of said deed was and is against plain, tiff’s wish and consent, and has the legal effect of depriving him of the right and legal ownership of his said real estate, upon which he heretofore resided and now resides, and which was and is his home.

“Wherefore, plaintiff prays for the judgment and decree of this court, adjudging and decreeing that the plaintiff was and is still the owner of said land, and the improvements thereon, and that the said deed to defend