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District Court of Appeal, First District, Division 2, California.


Civ. 12108.

Decided: July 16, 1942

Hill & Hill, of Eureka, E. E. Grant, of San Francisco, and Busick & Busick, of Sacramento, for appellant. Morrison & Morrison, of Eureka, for respondent.

Plaintiff, as executor of the estate of Meta Rasmussen, deceased, sued to quiet title to real property. The defendant claims title to the property through a deed executed eight months prior to the death of deceased. The plaintiff had judgment upon findings that the deed had not been delivered by the grantor in her lifetime. The appeal is from this judgment.

On May 4, 1938, the grantor executed the deed conveying a life estate to her sister Maria Beck, the remainder to the defendant herein. Maria Beck died some time prior to the commencement of this action. The deed, offered in evidence by the plaintiff, was duly acknowledged before a notary and bears the endorsement: “Signed, Sealed and Delivered in the Presence of Beatrice Myers Winslow.” The latter is the name of the notary who took the acknowledgment, and the above endorsement bears her signature. After the death of the grantor this deed was found in her safe deposit box in a sealed envelope bearing the inscription “5–4–38. This envelope and contents is the property of Maria Beck of Ferndale, and Robert N. Jansen, of Manteka, California. (Signed) Meta Rasmussen. Witness B. M. Winslow.”

After offering the deed and this envelope in evidence, the plaintiff called two witnesses whose testimony had no bearing upon the case excepting as to the identification of other documents found in deceased's safe deposit box. The defendant rested wholly upon the presumptions hereinafter noted and offered no evidence. At the opening of the trial the plaintiff asked and was granted leave to amend the complaint to change the allegation from one that the deceased “executed” the deed in question to one that she “signed and acknowledged” it.

The appeal is grounded on the contention that the finding that “said instrument was not ever delivered to said Maria Beck, to defendant Robert N. Jansen, or to any other person or put out of the possession or beyond the control of the said Meta Rasmussen,” as alleged in the complaint, is not supported by any evidence, and that the presumption of delivery found in section 1055 of the Civil Code, together with the provisions of sections 1948 and 1951 of the Code of Civil Procedure, require a reversal of the judgment.

Section 1055 of the Civil Code provides: “A grant duly executed is presumed to have been delivered at its date.” Section 1948 of the Code of Civil Procedure reads in part: “Every private writing, except last wills and testaments, may be acknowledged or proved and certified * * *, and the certificate of such acknowledgment or proof is prima facie evidence of the execution of the writing * * *.” Section 1951 of the Code of Civil Procedure reads: “Every instrument conveying or affecting real property, acknowledged or proved and certified, as provided in the Civil Code, may together with the certificate of acknowledgment or proof, be read in evidence in an action or proceeding, without further proof * * *.”

In conformity with these Code sections, when the respondent voluntarily offered in evidence the deed with its acknowledgment and certification, he thereby completed a prima facie showing of the due execution of the instrument which invoked the presumption that it was duly delivered upon the date of its execution. This is so because the “execution of an instrument is the subscribing and delivery of it; and * * * a grant duly executed is presumed to have been delivered on its date.” 1 Cal. Jur. p. 232. Thus, when the respondent offered as his evidence the acknowledged instrument “Signed, Sealed and Delivered in the Presence of” a witness, he made competent and substantial proof of a conveyance of the property to appellant by a duly executed and delivered deed as of the date subscribed. This proof was supplemented by the additional proof also offered by respondent, showing the grantor's endorsement on the sealed envelope that the deed was the property of the grantees, and by her letter addressed to the appellant in which she stated that she had given her sister Maria a life lease on the property “the house to be yours after her death.” (This letter was dated May 2, 1938, whereas the deed was dated May 4th. The only reasonable explanation for the difference in dates is that the deceased made a mistake in her letter. From its contents it is apparent that the letter was written after the deed was executed, or at least upon the same day.)

The presumption of due delivery arising from the respondent's proof of the execution and certification of the instrument is a disputable presumption, but it is one which must prevail unless controverted by clear and convincing evidence, or, as is frequently said in the decisions, “satisfactory” evidence. Lewis v. Burns, 122 Cal. 358, 362, 55 P. 132; Marple v. Jackson, 184 Cal. 411, 415, 193 P. 940. As to the legal effect, and evidentiary value of presumptions generally, see Westberg v. Willde, 14 Cal.2d 360, 365, 94 P.2d 590. From the cases there cited we understand the rule to be that, unless the presumption is dispelled by clear, satisfactory and convincing evidence, the court or jury is bound to find in accordance with it. But what is meant by “clear, satisfactory and convincing” evidence is a subject upon which there is a wide difference of opinion. See 20 Am. Jur., pages 1103, 1104. Our Code provides that a question of fact is to be determined “according to the preponderance of evidence” in civil cases. Section 2061, Code Civil Procedure. This we understand to mean the greater weight of the credible evidence, and hence when a presumption is invoked and evidence is offered to contradict it, the presumption is deemed to have been dispelled if the contradictory evidence “preponderates” against the presumption and the party against whom the presumption is invoked “satisfactorily” meets the burden of proof imposed upon him by the presumption itself.

With these principles in mind we may look at the evidence which respondent tendered to dispel the presumption of due execution and delivery of the deed. Exhibit No. 1 is a copy of decedent's will executed January 21, 1937. Exhibit No. 2 is a letter dated to two friends November 30, 1936, and apparently referring to an earlier will. Exhibit No. 3 is the letter of May 2, 1938, which the deceased addressed to appellant and in which she told him she had given him the property in suit and had assigned the “pink slip” to her auto which she wanted him to have. Exhibit No. 4 is the pink slip showing assignment by the legal and registered owner of the auto. Exhibit No. 5 is an assignment of shares of stock dated August 19, 1936. Exhibit No. 6 is an assignment or bill of sale of certain personal property to her sister dated August 19, 1936. Exhibit No. 7 is the deed hereinabove referred to dated May 4, 1938. Exhibit No. 8 is the envelope, and its endorsement, in which this deed was enclosed. Exhibit No. 9 is another assignment or bill of sale of certain shares of stock dated January 21, 1937. Exhibit No. 10 contains portions of a letter which have no bearing on the case. This is all the documentary evidence that was offered. No oral testimony relating to the issue of delivery was tendered. The appellant states in his brief that the notary who certified to the execution and delivery of the deed was present during the trial. The respondent correctly states that the record does not show that she was present. It is a fact, however, that she was not called to testify and respondent made no showing why her testimony of the surrounding circumstances was suppressed.

Returning to the exhibits it will be noted that most of the documents were executed a year or more prior to the execution of the deed. Respondent argues that they disclose an intent of the deceased to dispose of her estate without probate. If this were so it would have no bearing on the question here presented. An intention entertained and expressed in 1936 and 1937 is no proof that the same intention was entertained in May, 1938. Shaver v. Canfield, 21 Cal.App.2d 734, 739, 70 P.2d 507. Furthermore, the question of intent was not pleaded in the complaint and no finding was made covering it. The issue pleaded and found as the sole basis of the judgment was that the deed was not delivered. On this question the case is controlled by Thomas v. Fursman, 177 Cal. 550, 554, 171 P. 301; Stewart v. Silva, 192 Cal. 405, 409, 221 P. 191; Drummond v. Drummond, 39 Cal.App.2d 418, 423, 103 P.2d 217; and the subsequent retention of the deed by the grantor for purposes of safekeeping is not in itself evidence sufficient to overcome the statutory proof of delivery. Stone v. Daily, 181 Cal. 571, 581, 185 P. 665; Goodman v. Goodman, 212 Cal. 730, 300 P. 449; Longley v. Brooks, 13 Cal.2d 754, 762, 92 P.2d 394; Shaver v. Canfield, 21 Cal.App.2d 734, 739, 70 P.2d 507.

But the respondent suggests that this presumption should be deemed to have been overcome by the general presumption that a deed duly executed and subsequently found in the possession of the grantor is presumed not to have been delivered. 26 C.J.S., Deeds, § 184, p. 593. There are two answers to the argument, first, that the proof here did not show exclusive possession, and second, that the presumption of delivery controls over the presumption of non–delivery where the burden of proof rests upon the party invoking the latter presumption.

The undisputed evidence is that the deed was found in the grantor's safe deposit box after her death enclosed in a sealed envelope upon which was endorsed, in the grantor's handwriting, the following: “5–4–38. This envelope and contents is the property of Maria Beck of Ferndale, and Robert N. Jansen, of Manteka, California. (Signed) Meta Rasmussen. Witness B. M. Winslow.” This evidence discloses that the grantor did not retain exclusive possession of the deed, but that she openly, and in the presence of a witness, declared it to be the property of the grantees. It discloses further a deliberate intention to pass title at the very time the deed was executed, and that she at least believed and intended that all the formal steps necessary to make a complete and valid delivery had been taken. By this endorsement the grantor made herself a trustee for the grantees to hold the deed for them, and effectively passed out of her hands the control over the deed and any right which she might theretofore have had to recall or revoke it. It is inconceivable that, with this endorsement on the envelope, she would have assumed that she had the right to retake the deed and to either alter or destroy what she had voluntarily certified to be “the property” of the grantees.

The facts of the case bring it squarely within the rule of Cahlan v. Bank of Lassen County, 11 Cal.App. 533, 105 P. 765, where on a similar state of facts it was held that such an endorsement and deposit constituted the holder a trustee. The one essential difference in the facts is that in the Cahlan case the enclosures were certificates of stock where here the enclosure was a deed to real property. But this does not affect the rule of the case. It was sufficient for the purposes of this case if the grantor had made herself a trustee of the deed alone and had assumed to hold the deed in trust for the grantees. She did not need to become a trustee of the real property and did not need to assume to hold that property in trust for the grantees. Thus the statutory requirements relating to the creation of a trust in real property had no application, and it is not necessary that the word “trust” be used to create that relationship. “Any words which indicate with sufficient certainty an intention or purpose to create a trust will be effective in so doing, without the use of the words ‘trust’ or ‘trustee’.” Cahlan v. Bank of Lassen County, supra, 11 Cal.App. 540, 105 P. 767. As trustee of the deed alone she took delivery as trustee, or agent, of the grantees. Hence, if we disregard the presumption of due delivery arising from section 1055 of the Civil Code, the proof of a complete delivery for the benefit of the grantees is not only satisfactory and clear but is beyond reasonable doubt.

The question of the effect of conflicting presumptions and when one controls over the other is one of wide dispute. This is discussed in McKay v. McKay, 184 Cal. 742, 195 P. 385, 387, where a judgment of the trial court based upon the presumption that money paid was money due was reversed upon the ground that the presumption was overcome by the presumption that money obtained by a husband from his wife was obtained by undue influence. Section 2235 of the Civil Code. The court there said that the latter presumption prevailed over the former because, for one reason, “[it is] the less general of the two.” That rule would seem to apply here because the presumption arising from mere possession is the more general, and of far wider use and application. But a firmer ground for determining the relative weight of the conflicting presumptions in this case is that since the action is one to quiet title in the respondent the burden of proof is on him to prove his title and he can prevail only by proof of his title and not upon the weakness of appellant's proof. Such being the case if these presumptions are of equal weight––the one of delivery balancing the one of non–delivery––there is no substantial evidence to support the finding of nondelivery since the burden rested upon respondent to prove his title by a clear “preponderance” of the evidence. For these reasons there is no basis upon which the trial court, or this court, could reach a conclusion that one presumption was dispelled by the other. The judgment therefore is not supported by a preponderance of the evidence showing title in the respondent and “no right, title, or interest,” in the appellant. To the contrary these essential allegations of the complaint upon which respondent's cause of action rests remain unproved and the only legal conclusion that a court could make upon the record is that the moving party failed to sustain his burden of proof.

The judgment is reversed and the cause remanded with directions to amend the findings of fact and conclusions of law in accord herewith, and to enter judgment for the defendant.

I dissent. The determinative question on this appeal is whether the evidence was sufficient to support the trial court's finding that the deed had not been delivered. There was no direct evidence on this issue and the trial court's finding was necessarily based upon the indirect evidence which was before it. In my opinion, that evidence was ample to sustain the trial court's finding.

It is undisputed that the deed was found in a safe deposit box over which the deceased had exclusive control. It has been said that this fact alone “supports a presumption that it was never delivered” (Donahue v. Sweeney, 171 Cal. 388, 390, 153 P. 708, 709) and that the burden of proof on the issue of delivery then rests upon the party claiming under the deed. Lample v. McDougall, 103 Cal.App. 779, 781, 285 P. 328. See, also, 26 C.J.S., Deeds, § 184, 593; 16 Am.Juris. 664. The defendant here offered no proof on this issue.

But there were other surrounding circumstances to support the trial court's finding of non–delivery. “Delivery or non–delivery is always a question of fact to be found from the surrounding circumstances of each transaction.” Donahue v. Sweeney, supra, 171 Cal. page 391, 153 P. page 710. The deed was found in deceased's safe deposit box with many other papers. Among these papers was a will which purported to dispose of the entire estate of the deceased. There were also the deed, bills of sale and other instruments signed by the deceased purporting to dispose of the same property. The bills of sale covered, among other things, all personal effects as well as money in banks. There were also letters addressed to various persons. In the letters, deceased stated, “I have tried to fix my bit of property, if there should be any left when I pass on where it would do most good”; also “I have tried to fix things so there would be no expense. I hope it works;”, also “I have tried to arrange it so it would not have to go through court, but you never know what might be done, so I have also made a will. * * *”

Considering all of these papers together, the trial court was entirely justified in concluding that the deceased had no intention of presently divesting herself of title to any of said property but had the intention of making testamentary disposition thereof to be effective only upon her death. Under such circumstances, the finding that there had been no delivery of the deed should not be disturbed as the intention to make a present transfer is an essential element of a valid delivery. Williams v. Kidd, 170 Cal. 631, 151 P. 1, Ann.Cas.1916E, 703; 9 Cal.Jur. 153, § 52.

In my opinion, the judgment should be affirmed.

NOURSE, Presiding Justice.

STURTEVANT, J., concurred.