Howard v. Stephens

The action is to quiet plaintiff’s title to a certain forty-acre tract of land situated in Yolo County, to wit, the northeast quarter of the southeast quarter, section 20, township 10 north, range 2 east, M. D. B. & M., and to have canceled a certain deed to the same land under which defendant claims title. The cause was tried by the court and plaintiff ' had findings and judgment in her favor. Defendant appeals from the judgment under the alternative method.

It is alleged in the complaint that, on February 22, 1875, Rhoda S. Bonynge was the owner of said land and that on said day she “made a parol gift of the said tract of land to the said plaintiff herein, and stated to the said plaintiff that the said land should then and there be her property, and that she should immediately occupy the same; that acting upon the said gift, as aforesaid, the said plaintiff immediately took possession of the said tract of land, and ever since said date has been and now is in the exclusive possession thereof; that the said plaintiff so entered into and has ever since remained in the possession of the said premises with the knowledge, consent, and concurrence of the said Bonynge, and has made lasting and valuable improvement's thereon, and paid the state and county taxes thereon. That during all of said times herein referred to said plaintiif has been in the open, notorious, and exclusive possession of the said land; that while said plaintiff was in such possession, to wit, on the seventh day of March, 1914, the said Rhoda S. Bonynge conveyed the same to the defendant, L. H. Stephens; that the said Stephens knew that said plaintiff was in possession of the said premises at the time of said conveyance, and also knew that the said plaintiff had been in the possession thereof for many years previous to such conveyance to him; that said Stephens accepted said conveyance with full notice of all the legal and equitable rights of the said plaintiff in and to said .premises and in subordination to those rights; that said deed to said Stephens was made without any consideration. ’ ’

As a second cause of action plaintiff claims ownership by adverse possession.

A general and special demurrer was overruled and defendant answered, specifically denying the averments of the complaint as to plaintiff’s alleged ownership and means of acquiring the same.

The court made the following findings of fact:

“1. That all of the allegations of the said complaint are true.

“2. That all of the allegations of the first cause of action of said complaint are true.

' “3. That all of the allegations of the second cause of action of the said complaint are true.

“4. It is not' true that during all of the time mentioned in the plaintiff’s complaint said Rhoda S. Bonynge did permit said plaintiff to occupy said premises and to collect, retain, and keep the rents, issues, and profits thereof for the support and maintenance of the plaintiff. It is not true that said Rhoda S. Bonynge never, at any time, gave to said plaintiff the title to said property or any interest therein. It is not true that the said Rhoda S. Bonynge never, at any time, promised to give to said plaintiff the said title to said property or the title to any interest therein. It is not true that the right of plaintiff in said premises was or is a mere tenancy at will; it is not true that the control and disposition thereof was at .all times, or at any time, subject to the right of the said Rhoda S. Bonynge to terminate the same. It is true that, at the time of the conveyance from Rhoda S. Bonynge to the defendant, she stated to him that the purpose of said con

veyance was to convey the legal title to said premises, and that said Stephens should permit the plaintiff to retain possession thereof, or the right to the use of the rents, issues, income, and profits thereof for and during the term of her natural life; that said Bonynge also expressed said purpose at the time of the making of the said conveyance to the said defendant, that upon her death the defendant should sell the said premises and dispose of the proceeds thereof by distribution to certain persons named by said Rhoda S. Bonynge at the time the said conveyance was made to said defendant. However, in this respect, the court finds that at the time of the conveyance of said property by said Rhoda S. Bonynge to the said defendant herein she was not the owner thereof, had no interest whatever in the same, and had no right, title, or interest of any kind or character, either in law or in equity, in or to the said property or any part thereof; that at said time the said plaintiff herein was the owner of said property.

“5. That the defendant, L. H. Stephens, did not acquire any right, title, or interest in and to said property by virtue of the said conveyance made to him by the said Rhoda S. Bonynge, or otherwise; that the said defendant, Stephens, is not and never has been the owner of any right, title, or interest in and to said property, or any part or parcel thereof; that the said plaintiff, Eliza Howard, is the owner of the said i lands and premises described in said complaint, and the whole thereof, and is entitled to the possession thereof. ’ ’

As conclusions of law the court found that plaintiff is the owner of said land and that the deed executed and delivered to defendant be annulled and canceled.

In his opening statement counsel for defendant said: “And so that your honor may understand the situation as we see it, we at this time and at all times during the trial of this case will admit that so far as Mrs. Bonynge is concerned, that she did intend that Mrs. Howard, the plaintiff in this case, should have a life estate in the property, or the right to the use of the rents, issues, incomes, and profits for and during her natural life, but the remainder was absolutely subject to "the control of Mrs. Bonynge, and has been conveyed to Mr. Stephens. ’ ’ The sole question in the case is thus presented.

Defendant makes the following contentions: 1. That the finding that a parol gift was made by Mrs. Bonynge to plaintiff in 1875 is not supported by the evidence; 2. Assuming a

It appeared that plaintiff and her husband, Stephen A. Howard, came to California in 1861 and took up their residence in Yolo County in a neighborhood called Buckeye, some twenty miles distant from the town of Woodland, and were engaged in farming. Mrs. Rhoda Bonynge, then Rhoda Stephens, plaintiff’s sister, came to the state in 1862. She was then unmarried and made her-home with her sister, Mrs. Howard. About three years later she married C. W. Bonynge and thereafter and until her husband removed to London, England, resided in San Francisco. Mrs. Bonynge made frequent and protracted visits to her sister, Mrs. Howard, their relations being of the most affectionate character, so remaining until Mrs. Bonynge’s death at her home in London in June, 1914, except for an incident which occurred in relation to some property in Yolo County belonging to Mrs. Bonynge and which had been looked after and managed by plaintiff and her husband for a long period of years. . This incident will be referred to later. Mrs. Bonynge was a very warm-hearted and generous woman and very fond of her relatives, several of whom resided in California. This generosity manifested itself by gifts of money and property. To one of her sisters, Mrs. Hawxhurst, she gave a dwelling-house in San Francisco. It was during one of her visits at the home of her sister that Mrs. Bonynge announced her intention of purchasing a more suitable home for her sister, Mrs. Howard.

Plaintiff’s deposition was taken prior to the trial (October, 1915), in which' the foregoing facts appear. She testified that her sister, Rhoda, before her marriage to Mr. Bonynge, “made her headquarters” with witness for about three years; that her family lived at Buckeye about ten or twelve years before moving to the land in question to which she testified they' moved “about forty years ago.” She testified: “Q. Now, how did you come to move on this tract of land that we are havifig this suit about? A. Well, she bought the place and give it to me. Q. By ‘she’ you mean whom? A. My sister, Mrs. Bonynge. Q. Well, now, what did she say to you in re

J. C. Maxwell testified” that he had lived in Yolo. County for sixty years and in the Buckeye neighborhood when plaintiff’s family resided there; that he knew the Howards.and had known Mrs. Bonynge “all of her life nearly”; that he remembered the fact of the Howards’ moving to the land in question. “Q. Now, before Mr. and Mrs. Howard moved on to this place north of Woodland, or about that time, did you meet Mrs. Bonynge anywhere? A. Yes, sir. Q. Where? A. Several times. Q. Now, did you ever have any conversa

Mrs. Kate Hawxhurst, sister of Mrs. Bonynge and of plaintiff, a witness for defendant, testified that Mrs. Howard

“I am sorry I can do nothing more for yoú now. I have written to Lawrence Stephens, Brother Larry’s eldest son. I have told him that when Sister Eliza dies he can sell the forty acres of land which .1 own outside of Woodland and divide the proceeds between you, Laura Marshall, Bunce Stephens, Mary Birch, his, Bunce’s, sister, and himself. Nothing can be done before Sister Eliza’s death, for we loaned this place

to her for her life, and the rent of it is what she lives on. It will not be much, but it is all that I can give. I am sending you two parcels of my best and newest dresses. I don’t think I shall ever be well enough to wear them again.

“With best love,

“Yours affectionately,

“Rhoda Bonynge.”

She also testified that in a conversation with Mrs.'Howard “two or three years ago,” Mrs. Howard said to her: “Mrs. Clowe has always wanted to own that place [the land in suit] and wanted to buy it from the Bonynge’s.” Mrs. Howard testified that no such conversation occurred.

L. H. Stephens testified in his own behalf. He is the son of L. D. Stephens—Mrs. Howard and Mrs. Bonynge’s brother— and nephew of Mrs. Bonynge. Witness testified that he-was born in 1881, some years after Mrs. Howard had moved to this property, and that he knew Mrs. Howard was living on the place. He testified that the title to the property stood in the name of Rhoda Bonynge. Over objection he testified that it was always understood by the Stephens family that this forty acres “belonged to Mrs. Bonynge and that Aunt Eliza [plaintiff] had the use of it,for her lifetime”; that the first time he knew of Mrs. Bonynge’s desire to convey the property to him was when she wrote to him, the letter being dated February 13, 1913. In this letter a request is made to collect the amount due on a certain insurance policy on the life of Mr. Bonynge, who had recently died in London. Of this forty-acre tract she wrote:

“I hope you or brother Larry are attending to the taxes on the forty acres I have there, which after Aunt Eliza’s death must be sold and the money equally divided between Aunt Kate, Laura Marshall, Bunce Stephens, Mary Birch, his sister, and yourself, so you will understand what I want done in case of my death. Unless I change my mind in the meantime I have thought of putting this land in the name of the bank so as-to escape death duties but I don’t know if it would be wise to do so.

“Rhodie S. Bonynge.”

The next letter received by him was dated February 20, 1914, in which she speaks of several matters she desired at

“I want you to have a deed made out there and sent to me at once, of the forty acres of land which Aunt Eliza has the use of for her life, situated just out of Woodland, and I will deed it to you. Then I want, after Aunt Eliza’s death, you to sell it for me and divide the money equally between Kate Hawxhurst, Laura Marshall, Bunce Stephens, Mary Birch, his sister, and yourself. Now, Lawrence, don’t neglect these things. There is no time to be lost, and if you can’t attend to it I must get Walter Bonynge to do it for me. I don’t want to leave anything in my name in America, after the trouble and worry of the few things Mr. Bonynge left there.

“With best love to you,

“Your affectionate Aunt,

“Rhodie Bonynge.”

A letter written by Mrs. Bonynge to defendant’s father, L. D. Stephens, dated September 4, 1912, was introduced. In this letter, among other things, she said: “Write me what I ought to get for the place I have near Woodland, forty acres and a little house on it. I have always left it to Eliza but I don’t think she cares for it now. I would prefer giving her something in the way of the rent she gets for it.” Some other letters followed in which this forty-acre tract was mentioned as previously and, finally, March 24, 1914, she writes, as we understand the letter, sending the deed to defendant The deed is dated March 7, 1914, and was recorded April 8, 1914. The date of its actual execution and acknowledgment does not appear. These letters went in over plaintiff’s objection as tending to show Mrs. Bonynge’s intention. There was some evidence, taken from the books of the Bank of Woodland, that for certain years payment of certain high school taxes on this land had been charged to Mrs. Bonynge’s ,account, of which plaintiff testified she knew nothing. There was also evidence, taken from the Bank of Woodland books, showing that a credit of one dollar per year as rent had been credited to Mrs. Bonynge’s account for certain years, as to which Mrs. Howard testified she had no knowledge of any

Virginia Deerhurst, married daughter of Mrs. Bonynge, in a deposition taken in London, testified to conversations she heard between Mrs. Bonynge and her husband at the time the Esparto ranch was sold to Mr. Clowe, as to which she said her mother was very much annoyed. The sale was made in' June, 1912. “Q. What did Mrs. Bonynge say about the ranch in question, that is, the one there is the dispute about? A. I heard over again that my aunt was to live there for her life. I mean that is one of the dates when I heard it again. . . . Q. Do you remember having any conversation at all as to what was to happen after your aunt died? A. What was to happen was, that my aunt was to be left in imll possession and never disturbed in. any way; but at that time I believe that my sister and I would have had the property. It would simply have come with her other property. . . . Q. Try and give us, as nearly as you can recollect, what was said. Did she say anything as to what was to happen with regard to your aunt living at the ranch? A. That she was to be left absolutely as she always had been. Mrs. Bonynge thought of that very often, and always thought of how to arrange it. Q. You say ‘ absolutely. ’ Do you mean she was to be left without being interfered with? A. Without being disturbed in any possible way. Q. For how long? A. For her life.” The witness identified certain five or six books of account in which certain entries are found referring to the land in question. These books bear different dates, in 1880, 1881, 1883, 1884, 1885, and in 1891. The entries called to the attention of the court speak of this land as “Ranch occupied by Howard”; “Dep. by Howard, $250.00”; “Rent paid by Howard, $1.00,” of which latter there were three similar entries of different dates. No explanation of these entries was made and- they went in under objection.

With the exception of the declarations made to Mrs. Hawxhurst, as she testified, about the time plaintiff’s family moved to the land in question, there were none shown until in the letter written by Mi’s. Bonynge to her brother, L. D. Stephens, in 1912, and in subsequent letters to different members of the Stephens family. But at no time during all these years did Mrs, Bonynge inform plaintiff that her intention in giving her

We are aware of the rule, relied upon by appellant, that in such a case as this, where gifts are first asserted after the death of the donor, they must be established by clear and convincing proof, and that it has even been held that gifts of this character are regarded with suspicion by the courts (Humble v. Gay, 168 Cal. 516 , [ 143 Pac. 778 ]); still, a careful reading of the testimony of Mrs. Howard, corroborated as it is in considerable degree by that of witness Maxwell, convinces us, as it manifestly convinced the learned trial judge, that Mrs. Howard’s account of the transaction bears evidence of sincerity, honesty, and truthfulness.

Whether or not the court erred in admitting proof, that it was generally understood among the Stephens family that the gift was only a life estate, as to which the testimony was both ways, and in admitting the declarations of Mrs. Bonynge made, with the one exception above noted, forty years after the transaction, are questions we need not consider. If it was error, as to which we express no opinion, the error is not available to respondent since she had judgment. But in considering this class of evidence the court, no doubt, deemed it of less value than the positive testimony as to the nature of the gift and, therefore, insufficient to overcome the force and effect of such direct and positive testimony.

Whether the evidence in a given case is clear and convincing is a question in the first instance to be determined by the trial court, and its conclusion is not to be disturbed unless the reviewing court can say, after an examination of the entire record and all the circumstances surrounding the trails-

It is contended that the proof of the improvements made is entirely insufficient to bring the case within the rule as enunciated in Burris v. Landers, 114 Cal. 310 , [ 46 Pac. 162 ], and other cases. We think the facts in this case much stronger and more persuasive than those shown in the Burris case. Here the property was unimproved and, so far as appears, nonproductive. To convert it into a home such as must have been in the minds of the parties it was necessary to expend considerable money to make it habitable even for the simple life of those early days. The improvements were not temporary nor trivial, but substantial and commensurate to the uses contemplated, and, we think, were sufficient to bring the case within the rule.

The point is made that the gift was void because the improvements were insufficient to take the case out of the statute of frauds. “The doctrine that verbal contracts for the sale of land, if part performed by the party seeking the remedy, may be specifically enforced, ’ ’ was said, in Kinsell v. Thomas, 18 Cal. App. 683 , 695, [ 124 Pac. 220 ], to be “an elementary principle in equity jurisprudence and of general application ,throughout the American states.” Justice Hart, in the opinion, takes occasion to give the origin and philosophy of the rule.

It may be conceded that the evidence did not support the finding as to plaintiff’s second cause of action. The judgment is fully supported by the findings upon the first cause of action.

The judgment is affirmed.

Burnett, J., and Hart, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on October 30,1918, and the following opinion then rendered thereon:

Apellant seeks a rehearing upon the single proposition stated thus: “Assuming a parol gift has been established, the same is absolutely void and unenforceable, as the plaintiff’s proof is not of that character which justifies a court of equity in invoking the equitable rule of estoppel in order to take the case out of the operation of the statute of frauds. ’ ’ Reliance is placed upon the reasoning in the ease of Burris v. Landers, 114 Cal. 310 , [ 46 Pac. 162 ]. In that case “plaintiff’s real claim was that he entered with knowledge and approval of Landers, and under Landers’ promise that he would thereafter, upon demand, make him a deed, and that relying upon that promise, he made lasting and valuable improvements upon the property.”

Appellant concedes that a present gift was established from Mrs. Bonynge to Mrs. Howard, which, though defective in form, equity will perfect. Such was not the case of Burris v. Landers, of which the court said: “It is an effort simply to enforce a promise to make a gift, the execution of which was never attempted to be completed by deceased in his lifetime. ’ ’ After stating the nature of the action the court said: ‘'This, it will be noted, is a different action from one to compel the perfection of a gift presently but incompletely made.” In the case cited the property consisted of a dwelling and lot in the city of San Francisco and was occupied by plaintiff about three years when the donor died. The court held that, even in such a case as this, the donor can be compelled to make his promise good where “the donor by promises induces the donee to change his position to his detriment. ’ ’ In summing up the case the court said: “The evidence, then, in support of the findings, shows that the total expenditure of the plaintiff did not equal the rental value of the property during the time of his occupancy, and that the so-called permanent improvements were rather expenditures made to suit the convenience and taste of the occupant, and were not such as the law contemplates, of a character to enhance the value of the realty. ’ ’

W.,e need not stop to inquire whether the rule as to the quantity and character of evidence is the same in both executed and executory gifts. Assuming that the rule is the same in both classes bf cases, appellant relies upon certain testimony given to the effect that the property had a rental value of four hundred dollars per year for the five.years preceding the commencement of the action and that Mrs. Howard

“The rule may be considered,as well settled,” said Mr. justice Henshaw, in the case cited, “that where a parol gift of real estate is made in praesenti, and the donee has entered under the gift, and has made permanent and valuable improvements upon the realty, and the circumstances are such that it would be unjust to the donee if he were thereafter to be deprived of the property by reason of imperfections in the gift, equity will treat the acts of the donor," together with the acts of the donee, as being such performance of the gift as will relieve the contract from the operation of the statute of frauds, and it will, under such circumstances, lend its assistance to the perfection of the donee’s title.” The evidence, we think, fully met the requirements of the rule as thus stated. The fact that the permanent and valuable improvements spoken of have given to the property a rental value it did not theretofore have is a false quantity. Otherwise the very thing equity requires to be done would defeat its object.

The petition is denied.

Hart,- J., and Burnett, J., concurred.