Woman's Home & Foreign Missionary Society v. Bank of America National Trust & Savings Ass'n

BARNARD, P. J. In this action to quiet title to a lot in San Diego the court made findings and entered judgment in favor of the plaintiff and the defendants have appealed on the judgment-roll alone.

On July 17, 1925, Sarah Tenney, being then 80 years of age, executed a grant deed conveying the property in question to the respondent, this deed reserving to the grantor “the free use and occupancy of the said premises as a residence for herself so long as she may live”. This deed was delivered to a third person with instructions to hold the same until the death of the grantor and then deliver it to the respondent. On October 30, 1926, the said Sarah Tenney served a notice upon the respondent grantee and [684]the escrow holder declaring that this deed had been executed, acknowledged and delivered by her through inadvertence and mistake of fact and declaring that said purported deed of gift was thereby cancelled, demanding a return of the same and asserting that she would not surrender the possession of the property to them or either of them, and “that I have, claim and exercise the absolute ownership and control of the property described in said purported deed with full power to sell, pledge, give, will or otherwise dispose of the same”. Mrs. Tenney occupied the premises as a home and paid all taxes thereon until her death, on February 4, 1933. Thereafter both the notice of cancellation and the deed were recorded. In her will Mrs. Tenney made no specific devise of this property but the individual appellants are the assignees of her residuary devisee.

For the purposes of this appeal the validity of the deed is admitted and the appellants’ contentions are based solely upon the theory that Mrs. Tenney acquired title to this property by prescription as against the grantee named in the deed, through her possession of the property and payment of taxes for a period of more than five years after the giving of the notice.

It is well settled that the delivery of such a deed as this presently conveys the title subject to the life estate reserved therein (see. 767, Civ. Code; Ripperdan v. Weldy, 149 Cal. 667 [87 Pac. 276]; Merritt v. Rey, 104 Cal. App. 700 [286 Pac. 510]), and that the grantee, with certain exceptions not material here, takes the title free from all conditions which are not expressed in the deed. (Mowry v. Heney, 86 Cal. 471 [25 Pac. 17] ; Blackledge v. McIntosh, 85 Cal. App. 475 [259 Pac. 770]; Weldon v. Lawrence, 76 Cal. App. 530 [245 Pac. 451].) It is also well settled that a life tenant, as such, cannot through his possession establish an adverse title as against a remainderman, for the reason that the latter may not assert a right of possession or attack the other’s possession until after the termination of the life estate. (Pryor v. Winter, 147 Cal. 554 [82 Pac. 202, 109 Am. St. Rep. 162] ; Newport v. Hatton, 195 Cal. 132 [231 Pac. 987]; Thompson v. Pacific Electric Ry. Co., 203 Cal. 578 [265 Pac. 220].) In Pryor v. Winter, siopra, the court said: “It would be strange, indeed, if during the life of the particular tenant a remainderman could be com