Wittenbrock v. Cass

California Supreme Court Nov 7, 1895 No. No. 18331Published

Before: Belcher, McFarland

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Holding. The court held that while a verbal agreement to convey property does not create a constructive trust when the promisor used their own funds, evidence regarding a deed placed in escrow is admissible to determine if title passed to the grantee.

Issues

Whether a verbal agreement to convey property in exchange for care creates a constructive trust.
Whether evidence of a deed placed in escrow is admissible to determine if title vested in the grantee prior to a subsequent mortgage.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Mrs. Cass did not acquire the title to the property in question from her son, nor with his money.”

“If the deed was executed and left with Davis, and respondent had notice thereof, as claimed, then it was immaterial whether the prior agreement between the parties was verbal or written, and parol evidence to prove all the facts was admissible.”

Synopsis

Trust—Statute of Frauds—Verbal Agreement.—A verbal agreement between a mother and son that he and his family should live with her on premises which she had bought and paid for with her own money, and that he should have the title thereto after her death, provided that he would pay the taxes and insurance on the property and keep the house in good repair, and would furnish her with all necessary care and with hoard and lodging during her life, does not, upon the performance of the conditions, raise a constructive trust which is excepted from the rule that a trust in realty can only he created by an instrument in writing, and the alleged verbal agreement cannot be enforced as against a mort, gage executed by the mother for money loaned, although the mortgagee had notice of the verbal agreement.

Id.—Deposit of Deed in Escrow—Parol Evidence of Conditions.—In an action to foreclose the mortgage to which the son was a party, evidence is admissible to show that the mother executed to him a deed of the property prior to the mortgage, and placed it in the hands of another person as a depositary, to be delivered after her death, and that the mortgagee had notice of the execution and deposit of the deed at the time he received his mortgage; and parol evidence is admissible to show all the -facts and conditions upon which the deed was deposited.

Id,—Validity of Deed Delivered in Escrow—Intention of Grantor— Question of Fact.—The essential requisite to the validity of a deed transferred in escrow under such circumstances is, that when placed in the hands of a third party it has passed beyond the power of the grantor for all time, and that question is to be determined by the grantor’s intention in the matter, and is a question of fact to he solved by the light of all the circumstances surrounding the transaction.

Opinion — Belcher

Belcher, C. On March 7, 1892, Maria Louisa Cass borrowed of the plaintiff two thousand dollars, for which she executed to him her promissory note and a mortgage to secure payment of the same on certain real property in the city of Sacramento. Mrs. Cass died in May, 1892, and thereafter the defendant, William H. Cass, was duly appointed administrator of her estate. In March, 1893, plaintiff commenced this action to foreclose his said mortgage, making William H. Cass, as administrator and individually, a party defendant.

The case was tried and judgment of foreclosure rendered as prayed for, from which and from an order deny[4]ing his motion for a new trial the defendant appeals. The defendant answered the complaint, and then, by way of cross-coinplaint, set up in substance the following facts: That Maria Louisa Gass was the mother of defendant, and in October, 1882, was seventy-two years of age, infirm in body, without a home, and greatly in need of care and attention; that she had about three thousand seven hundred dollars in money and no other property; that then and there it was agreed between her and defendant that she should purchase in her own name and with her own means a certain lot in the city of Sacramento, and erect a dwelling-house thereon sufficient to accommodate her and defendant and his family, and that after the house should be constructed she and he with his family should move into the same and thenceforth live together; that he should pay the taxes and insurance upon the property and keep the house in good repair, and should furnish her with all necessary care and with board and lodging, and attend her in sickness and in health during her natural life; and that in return therefor she should execute to him a deed of the premises, which should be held in escrow until her death, and should also make a will devising to him all her property and estate, and that she would not in any manner sell, transfer, mortgage, or incumber the said property.

That in pursuance' of the aforesaid agreement Mrs. Cass purchased the said lot and erected a dwelling-house thereon at an expense to her of between nineteen hundred and two thousand dollars, and she and defendant with his family moved into the said house and took up their residence there about February 1, 1883, and defendant and his family have ever since resided in said house.

That defendant has in all respects fulfilled said agreement on his part, and has expended in the payment of taxes, insurance, and repairs upon said premises the sum of seven hundred and fifty dollars and upwards. That Mrs. Cass, in pursuance of the said agreement, made her

Wittenbrock v. Cass

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Synopsis

Opinion — Belcher

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Concurrence — McFarland

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