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District Court of Appeal, Third District, California.


Civ. 6384

Decided: July 01, 1940

Newby & Newby and Dee Holder, all of Los Angeles, for appellants. Bachtell & Clanton, Constance Leitch, and S.N. Bachtell, all of Los Angeles, for respondent.

This is an appeal from a judgment quieting title to certain real property, and canceling a deed and contract covering the property and directing a reconveyance to the heirs at law of Erolinda Moreno Zapata, the grantor.

On April 23, 1932, Apolonio Bailon Zapata and Erolinda Moreno Zapata, his wife, owned, as joint tenants, the several parcels of improved and income producing real property described in the complaint. They had no children, their nearest relatives being nephews and nieces, with whom they were not particularly cordial. Mr. and Mrs. Zapata were of Spanish descent. Mr. Zapata could speak English and was a teacher of Spanish carrying on his work up to within a month of his death. Mrs. Zapata could not speak English very well, although she could understand the language. They were interested in, and members of, the Homer Toberman Mission in Los Angeles, a religious activity under the jurisdiction of the Methodist Episcopal Church, South, and for many years Mr. Zapata had been president of its local governing board, and as such had the supervision of its business affairs. Mr. and Mrs. Zapata had often expressed a desire to do something in a financial way for the church with which the mission was affiliated, and in April, 1932, a grant deed was prepared conveying the property in question to the board of missions of the Methodist Episcopal Church, South, hereinafter referred to as the board, reserving, however, a life estate therein to the grantors or the survivor of them. At the same time an agreement was drawn up, providing, among other things, that the board would, in case of necessity, join with the grantors or their survivor in quitclaiming such portions of the property as might be necessary to be sold for actual necessities, should the occasion require. It also required that the board should educate for the ministry, Antonio Alberto Zapata, a nephew of the grantors, if he should so desire.

These two documents were prepared, and on May 14, 1932, were read to the grantors, and were also translated into the Spanish language for their better understanding. After some corrections the instruments as above outlined were signed by Mr. and Mrs. Zapata and given to a Mr. Fitzgerald, who was, in writing, authorized to deliver the deed and agreement to the board, which was a foreign corporation, having its principal place of business in Tennessee. On July 7, 1932, Mr. Zapata died.

On December 31, 1932, the deed duly executed, was returned by the board to Mr. Fitzgerald, and he was directed to record the same, which he did. A few days later the agreement was also returned, signed by the board and given to Mrs. Zapata, the receipt of which she acknowledged in writing. On November 14, 1935, Mrs. Zapata died, and shortly thereafter this action was brought to cancel the deed and agreement.

It is the contention of the executor, the respondent herein, that the Zapatas made a joint offer or proposal which was intended to be accepted during their joint lives, and no action having been taken by the board until after the death of Mr. Zapata, a revocation occurred, and the subsequent attempt to accept and record the deed was a nullity. This was also the theory adopted by the trial court, for it found in effect that on the 14th day of May, 1932, Mr. and Mrs. Zapata made a joint offer or proposal in writing to the defendant board, and that it was the intent of the Zapatas that the proposal should not remain open longer than the joint lives of Mr. Zapata and his wife.

We do not believe the record supports this finding. The real property involved was owned in joint tenancy by the husband and wife. Such a tenancy is an estate held by two or more persons jointly, which, upon the death of one, vests in the survivor or survivors until there is but one survivor, whereupon it vests in such sole survivor absolutely. If one of the parties dies, he merely drops out of the title and his interest ceases, the title remaining, vesting in the survivor under the original deed, since the theory of survivorship is that the fee title as a whole is vested in each of the tenants, subject to the life estate of the others, and not that any title is derived by the survivor from his deceased co-tenant.

Accordingly, on the death of Mr. Zapata on July 7, 1932, the title to the real property was exclusively in Mrs. Zapata. On January 3, 1933, the local representatives of the church corporation called upon Mrs. Zapata and delivered to her the agreement which she and her husband had previously signed, duly executed by the church corporation, taking her receipt therefor. This agreement she retained for approximately two years, or until her death in November, 1935.

No exclusive joint obligation appears in the contract, and the presumption must be that it was a joint and several obligation. Section 1659 of the Civil Code provides that “where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several.”

This code section is considered in Gummer v. Mairs, 140 Cal. 535, 74 P. 26, 27, where an action was brought against one or two obligors to a contract for the purchase of land. It was contended the contract was a joint obligation and that both purchasers were necessary parties. The court held otherwise, stating: “It is quite true that, notwithstanding the consideration money to each was the same, the contract might have been made a joint contract by an express statement or agreement to that effect, but, in the absence of evidence showing a contrary intention, the presumption stated in said section 1659 [[[[of the Civil Code] must control.”

To the same effect is Webb v. Casassa, 82 Cal.App. 307, 255 P. 541, and County of Los Angeles v. Luscher, 58 Cal.App. 632, 209 P. 899.

The agreement itself refutes the claim the agreement was joint, and not joint and several. Therein Mr. and Mrs. Zapata are referred to as “parties of the second part”, indicating both parties were affected. It is also provided that the survivor of the parties of the second part shall be liable during his or her life for the support of the nephew Alberto; also the parties of the second part, or the survivor of them, may sell the property under certain conditions, indicating a continuance of rights or obligations in one of the parties after the death of the other.

One of the considerations is thus stated in the agreement: “Whereas, the parties of the second part desire that Antonio Alberto Zapata * shall be properly educated for the ministry *” and that the board shall supervise such education, bringing it within the requirement of section 1659 of the Civil Code quoted above.

It is next claimed by respondents that the board was dilatory in accepting or acting upon the offer and that the same was revoked by the expiration of a reasonable time. It is true over six months elapsed between the offer and acceptance, but we can see no injury to anyone by reason of the delay. The Zapatas knew the board was a foreign corporation with its place of business in Tennessee. It was necessary for a representative of the board to come to California and appraise the property and to report back to the board. This was not a case involving a sale of a fluctuating commodity. It was not even a sale contemplating a money profit to the grantors. The preliminary negotiations had been unhurried, and we can see no detriment suffered by the delay between the offer and acceptance. In fact, the board was not called upon to do anything of its own initiative until after the death of the grantors, the agreement providing, “Whereas the parties of the second part desire the party of the first part to supervise said education in the event they should die before said education shall have been completed.”

If, however, we assume the agreement was a joint offer, it would still survive the death of Mr. Zapata and be binding upon Mrs. Zapata when accepted by the board. Section 1543 of the Civil Code so provides, and the following cases so hold: Bee v. Cooper, 217 Cal. 96, 17 P.2d 740; Elizalde v. Murphy, 146 Cal. 168, 79 P. 866.

The complaint alleges that Mr. and Mrs. Zapata were induced to sign and deliver the deed and agreement and the instructions to Fitzgerald by the fraud and misrepresentations of defendants, but no findings are made to that effect, and we can disregard such allegations except to say perhaps that no evidence was presented that would support any such finding.

As to certain acts subsequent to the death of Mrs. Zapata the court found that the defendants “did designedly deceive and mislead her concerning her rights in connection with said transaction and the meaning of the language in said purported agreement and on the effect on said transaction of the death of Mr. Zapata and on the lapse of time intervening between said offer and attempted acceptance thereof”. What these misrepresentations were, does not appear nor does it appear they were known by defendants to have been untrue, nor were made for the purpose of deceiving Mrs. Zapata, nor that she relied thereon, to her damage.

There is no finding to the contrary and it is established that the deed and agreement were originally executed and delivered without fraud or deceit of any kind, so Mrs. Zapata must have understood the language of those documents when drafted and delivered to Fitzgerald.

If the court intended to find that defendants made some misrepresentation as to the legal effect of the revocation of the agreement, which revocation the court found was by operation of law, and not by any act of the parties, then it was necessary for the court to have found what the misrepresentation was, that defendants knew it was untrue and that it was made for the purpose of deceiving Mrs. Zapata. There is no evidence, however, supporting such a finding if such had been made. Furthermore, such representation constituting a misrepresentation as to a matter of law, the mere opinion of the defendants would not be actionable. Haviland v. Southern Cal. Edison Co., 172 Cal. 601, 158 P. 328; Rheingans v. Smith, 161 Cal. 362, 119 P. 494, Ann.Cas.1913B, 1140.

The court found that defendants' agents prepared the deed and contract. The evidence is that an attorney recommended to Mr. Zapata by a Mr. Reynolds, a member of the Methodist Episcopal Church, South, called upon Mr. and Mrs. Zapata, and was acceptable to them as such counsellor and attorney. Neither Mr. Reynolds nor the attorney, Mr. Newby, represented the church nor its board.

The court also found that the deed was delivered by Fitzgerald, knowing he had no right so to do because the alleged offer had, by the death of Mr. Zapata, been revoked. Our attention is called to no evidence in the record, and we can find none, that either Fitzgerald or the church, or the board, knew that the death of Zapata automatically revoked the alleged offer or terminated the right of Fitzgerald to record the deed; in fact, the evidence is to the contrary. Fitzgerald testified he believed that upon the death of Mr. Zapata the property vested in Mrs. Zapata, and that she had the control thereof, and that he was justified in acting as he did.

The court also found that after the death of Mr. Zapata, Mrs. Zapata demanded the return of the deed and agreement and information as to her rights in the matter, but defendant refused to return the papers or tell her what her rights were.

It is a fact not questioned that when the deed and agreement were executed and delivered to Fitzgerald, Mr. and Mrs. Zapata each understood the import and meaning of each of the instruments involved. Some five months before the death of Mrs. Zapata, a friend of hers had someone look over the papers for Mrs. Zapata, but apparently nothing was done and Mrs. Zapata expressed her satisfaction with the arrangements. In September, about two months before her death, Mrs. Zapata demanded the papers of Mr. Fitzgerald and he gave her the instructions signed by Mr. and Mrs. Zapata, being the only document he had, as the deed had been recorded and returned to the board, and the agreement had been delivered to Mrs. Zapata in January, 1933, and a receipt taken from her therefor. In fact, it appears the agreement was found among her effects after her death.

Neither is there evidence to support the finding that Fitzgerald prevented Mrs. Zapata from consulting any other persons about the deed and agreement. Mrs. Zapata was not confined to her bed. She attended church and associated with many people, and frequently met and talked with the pastor of the church but apparently made no complaint to anyone of the disposition of her property.

Should it be admitted that the agreement was an offer which was revoked by the death of Zapata or revoked by an unreasonable delay in acceptance, nevertheless, Mrs. Zapata having accepted the agreement duly executed by the board, and a compliance with the instructions, the transaction became an executed one. When the executed agreement was returned by the board she accepted the agreement, signing a receipt to the effect she had received an agreement relative to the “conveying of two parcels of real estate located in the County of Los Angeles, State of California, by Apolonio Bailon Zapata and Erolinda Moreno Zapata, to the Board of Missions of the Methodist Episcopal Church, South”. This evidenced the fact that Mrs. Zapata had agreed, without objections, to the terms of the agreement after the death of her husband, and after the lapse of some six months. The agreement having been executed by the board and accepted by Mrs. Zapata, became a binding agreement.

Other objections are urged by appellant, but enough has been said to warrant a reversal of the judgment. It is so ordered.

Mr. Presiding Justice PULLEN, delivered the opinion of the court.

We concur: THOMPSON, J.; TUTTLE, J.