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District Court of Appeal, Fourth District, California.


Civ. 1872

Decided: September 21, 1938

J.E. Hood, of Oakland, and Conley, Conley & Conley, of Fresno, for appellant. Samuel F. Hollins, of Fresno, for respondent.

This is an action to quiet title to real and personal property, for an accounting and to compel a reconveyance of the property. Defendant had judgment and plaintiff has appealed.

Transactions between Julia A. Gordon, who died on October 24, 1934, and W.M. Barr, who died on December 17, 1932, covered a period of a number of years. We can save time and space by taking the statement of the facts from the findings of fact. We quote the following:

“That W.M. Barr, the father of the defendant, was a blood relative of Julia A. Gordon, and that said W.M. Barr and Julia A. Gordon were close and intimate friends, and that confidential relations existed between them, and that said Julia A. Gordon reposed confidence and trust in said W.M. Barr; that said W.M. Barr was for many years prior to his death a resident of Fresno County, and by occupation a real estate dealer and engaged in the business of loaning money; that said Julia A. Gordon relied upon the advice and counsel of said W.M. Barr, along with her attorney and other advisors, in the handling and management of her business affairs; that Julia A. Gordon had faith in the business integrity and judgment of said W.M. Barr; that prior to 1929 Julia A. Gordon placed $2,000.00 in the hands of W.M. Barr to be loaned out at interest for her account; that Julia A. Gordon had confidence in his business integrity and judgment, and had confidence in said W.M. Barr, and did from time to time execute such assignments, releases or conveyances as said W.M. Barr suggested or requested in the handling of said $2,000.00;

“That on or about the year 1929 said W.M. Barr made a loan of $1,000.00 to M.C. Stewart and Lela Stewart, his wife, for the account of said Julia A. Gordon, and caused to be executed to her a promissory note secured by mortgage upon real property situated in the city of Sanger, County of Fresno, State of California, described as follows: (Description) *

“That on or about the 19th day of October, 1929, a loan of $1,000.00 was made by said W.M. Barr for the account of Julia A. Gordon to Lila Deaver and Chester C. Deaver, her husband, which loan was evidenced by a promissory note of even date therewith and was secured by a mortgage upon real property situated in the City of Sanger, County of Fresno, State of California, described as follows: (Description)

“That said mortgages, together with policies of title insurance, were thereafter delivered to Julia A. Gordon by said W.M. Barr.

“That on or before the 14th day of January, 1931, the said Julia A. Gordon made, executed and delivered to W.M. Barr, in writing, an assignment conveying and transferring to the said W.M. Barr the said Stewart mortgage and the indebtedness thereby secured; that on or before the 23rd day of April, 1930, the said Julia A. Gordon made, executed and delivered to W.M. Barr, in writing, an assignment conveying and transferring to the said W.M. Barr the said Deaver mortgage and the indebtedness thereby secured; that said assignments were not, nor was either of them, delivered upon any condition whatsoever, except that said assignments were, and each of them was, delivered upon the express understanding and agreement that the said W.M. Barr should manage and control the funds invested in said mortgages, subject to the direction of the said Julia A. Gordon, during her lifetime, paying the income therefrom to the said Julia A. Gordon, for and during the term of her natural life, and that upon the death of the said Julia A. Gordon, the said funds, property and indebtedness, and all the proceeds thereof, should be and remain the property of the said W.M. Barr, his heirs and assigns, free and clear of any trust or obligation whatsoever.

“That on or about the 25th day of September, 1929, the owner of the land covered by the Stewart mortgage conveyed said property to W.M. Barr, subject to said mortgage to Julia A. Gordon.

“That on April 4, 1932, said W.M. Barr released said Deaver mortgage, and a new loan was made to Lydia M. Delano for $1,000.00, payable to the defendant herein; said loan was secured by a mortgage on the same property as was described in the Deaver mortgage.

“That on or about the 18th day of March, 1935, the Delano mortgage was paid off, and the defendant acquired $1,000 face value in bonds of the Federal Farm Mortgage Corporation.

“That prior to the death of W.M. Barr on December 17, 1932, and in consideration of more than $4,000.00, which had been advanced to W.M. Barr by the defendant, W.M. Barr conveyed and transferred the notes, mortgages, and lands derived from the original Deaver and Stewart mortgages to the defendant on the same terms and conditions under which they were previously held by said W.M. Barr.

“That during the lifetime of the said Julia A. Gordon, the defendant and the said W.M. Barr paid all the income from said property, funds and indebtedness to the said Julia A. Gordon.”

It is well settled that in order to constitute a valid gift of property there must be a present intention on the part of the donor to part with the title of the property and a present actual or symbolical delivery of it. This rule is thus stated in Beebe v. Coffin, 153 Cal. 174, 94 P. 766, 767:

“A gift is but the transfer of personal property made voluntarily and without consideration, and a verbal gift is not valid unless the means of obtaining possession and control of the thing are given, nor, if it is capable of delivery, unless there is an actual or symbolical delivery. Civ.Code, secs. 1146, 1147. And the delivery must be absolute; that is, the donor must not only part with the possession of the property, but must relinquish to the donee all dominion and control over it. 14 Am. & Eng.Ency. of Law, p. 1019; 20 Cyc. of Law and Proc., p. 1195. This holds true of all gifts, whether they be gifts inter vivos or gifts causa mortis. As is pointed out in Knight v. Tripp, 121 Cal. 674, 54 P. 267, all gifts are necessarily inter vivos, since a living donor and a living donee are indispensable to a valid gift. * ‘There can be no gift without an intention to give, and a delivery either actual or constructive of the thing given.’ * But the essential of delivery of the immediate surrender of all dominion and control over the subject of the gift is as absolutely necessary in the one class of gifts as in the other. Falling short of such unconditional delivery, a gift is incomplete. If the transfer of such dominion and control is postponed to some future date, as until the date of the death of the donor, it becomes thereby no more than an unexecuted and unenforceable promise to make a future gift. Hibberd v. Smith, 67 Cal. 547, 4 P. 473, 8 P. 46, 56 Am.Rep. 726; Daniel v. Smith, 64 Cal. 346, 30 P. 575; Zeller v. Jordan, 105 Cal. 143, 38 P. 640; Hart v. Ketchum, 121 Cal. 426, 53 P. 931; Pullen v. Placer County Bank, 138 Cal. 169, 66 P. 740, 71 P. 83, 94 Am.St.Rep. 19. In illustration of the important fact that immediate and complete dominion over the thing given must be surrendered by the donor and accepted by the donee, the cases of Pullen v. Placer County Bank, supra, and Basket v. Hassell, 107 U.S. 602, 2 S.Ct. 415, 27 L.Ed. 500, are instructive. In Pullen v. Placer County Bank [supra] a father had given his son a check for $1,000, upon the understanding that the son should not present the check to the bank for payment until after the death of the father. The son retained possession of the check, and did present it according to instructions after the father's death. This court held the transaction invalid as a gift, citing Knight v. Tripp above referred to, and saying: ‘A gift vests the donee with the absolute property in the thing given, and is no longer subject to the control of the donor. If, on the other hand, the thing given remains under the control of the donor, or, except in the case of a gift causa mortis, is subject to his revocation, his gift is not complete.’ ”See Stone v. Daily, 181 Cal. 571, 185 P. 665; Union Mutual Life Ins. Co. v. Broderick, 196 Cal. 497, 238 P. 1034; Skellenger v. England, 81 Cal.App. 176, 253 P. 191; Azvedo v. Azvedo, 1 Cal.App.2d 504, 36 P.2d 1078.

It is also the rule that the burden of proving a valid gift is on the donee and that “where a claim of gift is asserted after the death of a donor, every element necessary to constitute a gift must be sustained by explicit and convincing evidence.” Bishop's School v. Wells, 19 Cal.App.2d 141, 65 P.2d 105, 108.

When we measure the findings of fact by the foregoing rules it is apparent that they do not support the judgment. Mrs. Gordon did not part with the right of dominion over the property for it was found that the delivery was made on the express condition that Mr. Barr should manage, control and invest the funds subject to the direction of Mrs. Gordon and should pay her its income during her lifetime and that only after her death should Mr. Barr become owner of it. This finding thoroughly negatives any intention to make a present gift and any present delivery of title.

With such findings before us Mr. Barr, were he defendant, could not successfully assert title to the property. Defendant stands in no better position than her grantor because it is expressly found that the property was conveyed to her “on the same terms and conditions under which they were previously held by said W.M. Barr”. It is also clear from the record that she cannot claim as an innocent purchaser for value.

The judgment is reversed.

MARKS, Justice.

I concur: BARNARD, P.J.