Smith v. Carey

DRAPER, P. J. Claiming under pre-1951 joint tenancy deeds to herself and her deceased husband, plaintiff sought to quiet title. Defendant is the daughter of the decedent by an earlier marriage. Her answer pleaded in full a 1953 deed from her father to her. Plaintiff did not file an affidavit denying “genuineness and due execution’’ of the 1953 deed (Code Civ. Proc., § 448). Plaintiff’s pretrial statement asserted that an issue for trial was whether the 1953 deed to defendant was “effectively delivered by [decedent] to defendant with intent to pass any title”. Defendant’s pretrial statement asserted that the sole issue for trial was whether this deed was “procured by fraud, deceit, duress on or mistake of” decedent. The pretrial conference order listed for trial the issue “whether the deed . . . was properly made, executed and delivered.” It is uneontradicted that plaintiff’s attorney specifically stated at the conference that he asserted the issue of “requisite intent in making delivery” of the deed; the pretrial judge stated that this issue was included in the order as drawn; defense counsel neither objected to the order nor suggested that the issue of intent at time of delivery was barred by plaintiff’s failure to file the affidavit required by section 448.

At trial, defendant objected to any evidence relating in any way to delivery. The objection was overruled. Defendant testified that decedent, when he handed her the deed, asked her not to record it until after his death, and said that her interest as grantee was to be effective after his death. It is undisputed that defendant did not assert title in the properties during the 10 years from deed to death of grantor; and that the latter sold some parcels described in the deed, and encumbered others, without defendant’s consent. The court determined that the 1953 deed was manually delivered and accepted with the intent that it be effective only upon grantor’s death and, since it does not meet the requirements of a will, it is wholly ineffective. Judgment quieted title in plaintiff. Defendant appeals. She asserts that the findings are im[440]proper because contrary to the admission resulting from plaintiff’s failure to comply with section 448.

On its face, the statute provides only that “the genuineness and due execution” of an instrument pleaded in the answer are admitted by failure to file and serve an affidavit of denial. Appellant, however, relies upon language of two decisions asserting that the statutory admission includes concession that the document “was delivered in the manner prescribed by law” (Stoneman v. Fritz, 34 Cal.App.2d 26, 28 [92 P.2d 1035]; Oswald v. Northrop Aircraft, Inc., 62 Cal.App.2d 824, 828 [145 P.2d 635]).