Kenney v. Parks

California Supreme Court Sep 6, 1898 No. L. A. No. 405Published

Before: Haynes

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Holding. The court held that the delivery of deeds to a third-party depositary pursuant to a mutual, irrevocable agreement constitutes a valid present conveyance of a future interest, rather than an invalid testamentary disposition.

Issues

Whether the complaint sufficiently stated a cause of action for the reformation of a deed based on fraud or mistake.
Whether the deposit of deeds with a third party to be delivered upon the grantor's death constituted an irrevocable conveyance or a revocable testamentary act.

Disposition. affirmed

Quotations verified verbatim against the opinion

“if a future interest was presently and irrevocably given, then it is equally clear that it was valid as a conveyance”

“the grantor, upon the irrevocable delivery of the deed to the depositary, thereupon constitutes such depositary the trustee of the grantee, and creates in himself a tenancy for life.”

Synopsis

Reformation of Deed—Parties.—The Attorney Who is Alleged to have committed the fraud of making a deed conveying only a life estate, instead of a fee, is not a necessary party to an action to reform it.

Reformation of Deed—Parties.—The Executors in Possession of the Property of deceased, as well as the legatees and devisees claiming it under Ms will, are properly parties to an action to reform his deed to make it convey a fee, instead of a life estate.

Reformation of Deed—Pleading.—There is No Ambiguity Prejudicial to defendants in a complaint to reform a deed so as to convey a fee, instead of a life estate, in that in one place a mutual mistake is alleged, as though both parties were misled by the reading of the deed by the attorney, while in another place it is charged that the attorney and grantor, knowing that the grantee believed the deed to convey a fee, did not disclose the fact that it did not.

Deeds of Husband and Wife to Take Effect After Death.—Deeds executed by husband and wife, conveying each to the other their separate properties, and delivered to a third person, with direction to record that of the person dying first, are not testamentary or revocable.1

HAYNES, C. Action to reform a deed, to quiet title, and for other relief. The plaintiff had judgment, and the defendants appeal upon the judgment-roll. The defendants W. S. Parks and J. C. Kenney are the executors of the will of Joseph A. Kenney, deceased, and the other defendants are heirs at law of said decedent, and devisees under said will. A jury was called, to whom certain special issues were submitted, and the findings of .the jury thereon were adopted by the court, who added other findings covering all the issues, and ordered judgment thereon for the plaintiff, which was duly entered. Joseph A. Kenney, deceased, and the plaintiff, were husband and wife, and resided in the county of Santa Barbara, where each owned a considerable quantity of both real and personal property. The complaint alleges that in May, 1892, the plaintiff being then of the age of forty-eight years, and said Joseph A. then of the age of seventy-three years, and there being no living children of their said marriage, mutually agreed to execute deeds each to the other conveying absolutely in fee simple all of their respective estates, both real and personal, situate in said county, and agreed that said deeds should be placed as escrows in the hands of the cashier of the First National Bank in Santa Barbara, with directions to said cashier that, if the plaintiff should die during the lifetime of said Joseph A. Kenney, he, the said cashier, should, on request of said Joseph A., or his agent, file the deed of the plaintiff to said Joseph A. for record in the county recorder’s office of said county, and, if said Joseph A. should die during the lifetime of the plaintiff, said- cashier should, at the request of plaintiff or her agent, file said deed of Joseph A. to her in said recorder’s office; that, pursuant to said agreement, said Joseph A. employed one S. W. Bouton, an attorney, to prepare said deeds. They were prepared, and were each duly executed and acknowledged on June 1,1892. Both deeds are set out in full in the complaint. The deed executed by Joseph A. to the plaintiff is as follows:

“For and in consideration of my love and affection for my wife, Sarah J. Kenney, I, Joseph A. Kenney, of the county of Santa Barbara, in the state of California, do hereby grant, bargain, and sell unto my said wife, Sarah J. Kenney, to have and to hold the same during the term of her natural life, with remainder in fee to my lawful heirs according to [113]the laws of the state of California, all that real property situated in the county of Santa Barbara, state of California, bounded and described as follows, viz.: All my real property, and all interests therein belonging to me, situate in the said county of Santa Barbara; also all my personal property, of whatsoever kind and description,, moneys, notes, bonds, and all other evidences of debt belonging to me; and this deed shall be an assignment to said grantee of all mortgages and other securities owned by me. This deed is intended to convey all my estate situate in said Santa Barbara county in the event of my decease during the lifetime of my said wife, and is to be deposited in escrow with the cashier of the First National Bank of Santa Barbara to be filed for record by him in case of my decease as aforesaid; and I do hereby declare, as part of this conveyance and my act and deed, that the filing this deed for record by said cashier shall constitute and be a good and sufficient delivery of this deed to the grantee therein named.

Kenney v. Parks

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