James v. James

Action to quiet title to certain lots of land situate, lying, and being in the city of Los Angeles, county of Los Angeles. The action was originally begun against Howard T. James and Hortense James, his wife. Hortense James having died, the action was dismissed as to her.

The complaint is in the usual form of a pleading in an action to quiet title, alleges that the plaintiff is and ever since the month of August, 1922, has been the owner of the lots of land described in the complaint, alleges that the defendant claims some interest therein, and that the interest of the defendant is without right, etc. Judgment was prayed that the plaintiff’s title to said premises be quieted. The answer of the defendant denies the ownership of the plaintiff, and, by way of affirmative defense, alleges ownership of one-half interest in and to the described premises. This portion of the defendant’s answer, after alleging that the plaintiff and Thomas F. James were, during all the times mentioned in the pleadings, husband and wife and owners, as joint tenants, of property described in plaintiff’s complaint, is in the following language:

“That on said 22nd day of August, 1922, the said Thomas P. James made his certain deed of conveyance to the plaintiff herein for the undivided one-half (%) interest of the said Thomas P. James in and to said real property; that said deed was placed in the hands of said plaintiff with the understanding and agreement and upon the statement made by the said plaintiff that she would immediately make and execute her will wherein and whereby her said husband was to be the sole beneficiary, should he survive her, and in the event the said husband did not survive the said plaintiff, all of the property belonging to the plaintiff at the time of her death was to be willed, by the will hereinbefore alleged, unto Arthur C. James, a two-fifth (%) interest and Howard T. James (this defendant) a three-fifth (%) interest; that by the said will the said plaintiff was to nominate and appoint the said Thomas P. James executor, should he be living, and in the event of his death before the death of the plaintiff the said Howard T. James, this defendant, was to be nominated and appointed executor.

“This defendant alleges that the said plaintiff did not make and execute a will in accordance with the agreement between her and the said Thomas F. James at the time of the making of the deed hereinbefore mentioned; that she never made and executed such a will; that the consideration for the deed from the said Thomas F. James to the said Alice T. James has wholly failed; that there is no consideration for the said deed from the said Thomas F. James to the said Alice T. James and that the deed from the said Thomas F. James to the said Alice T. James was never delivered to the said Alice T. James except upon the conditions and for the consideration in this special defense alleged and that it was not the intention of the sa.id Thomas F. James that the said deed should be delivered to the said Alice T. James and that it was not intended by the said Thomas F. James that the title to an undivided one-half O/2) interest in said real property should pass to the said Alice T. James except upon the fulfillment by her of the conditions herein-before alleged.”

The answer then further alleges that said deed of Thomas F. James to Alice T. James was not recorded until some months after said month of August, 1922; that in the meantime the said Thomas F. James learned that said Alice T. James had not made any will, and thereupon made, executed, and delivered a good and sufficient bargain and sale deed for all of his interest in said premises to the defendant Howard T. James. This deed bears date of September 22, 1922, and was recorded on the same day.

At the conclusion of the trial the court made and filed its findings of facts, only one of which needs to be set forth herein:

“IV.

“The court further finds that on or about the 22nd day of August, 1922, the plaintiff and Thomas F. James, who at said time was the husband of the said Alice T. James, were the owners as joint tenants of that certain real property described in plaintiff’s complaint; that on said 22nd day of August, 1922, the said Thomas F. James made his certain deed of conveyance to the plaintiff herein for the undivided one-half (%) interest of the said Thomas F. James in and to said real property; that said deed was placed in the hands of the said plaintiff with the understanding and agreement

and upon the statement made by the said plaintiff that she would immediately make and execute her will wherein and whereby her said husband was to be the sole beneficiary, should he survive her, and in the event the said husband did not survive the said plaintiff, all of the property belonging to the plaintiff at the time of her death was to be willed, by the will hereinbefore alleged, unto Arthur C. James, a two-fifths (%) interest, and Howard T. James (this defendant) a three-fifth (%) interest; that by the said will the said plaintiff was to nominate and appoint the said Thomas F. James executor, should he be living, and in the event of his death before the death of the plaintiff the said Howard T. James, this defendant, was to be nominated and appointed executor.

“That the said plaintiff did not make and execute a will in accordance with the agreement between her and the said Thomas F. James at the time of the making of the deed hereinbefore mentioned; that she never made and executed such a will; that the consideration for the deed from the said Thomas F. James to the said Alice T. James has wholly failed; that there is no consideration for the said deed from the said Thomas F. James to the said Alice T. James, and that the deed from the said Thomas F. James to the said Alice T. James was never delivered to the said Alice T. James and that it was not the intention of the said Thomas F. James that the said deed should be delivered to the said Alice T. James, and that it was not intended by the said Thomas F. James that the title to an undivided one-half (%) interest in said real property should pass to the said Alice T. James except upon the fulfillment by her of the conditions hereinbefore found to have been imposed.

“That, tlie said deed from the said Thomas F. James to the said Alice T. James was not recorded until some months after the said month of August, 1922, and that in the meantime, when the said Thomas F. James learned that the said Alice T. James had not made the will in accordance with her agreement made at the time of the making by the said Thomas F. James to the said Alice T. James of the deed bearing date of the 22nd day of August, 1922, he made, executed and delivered unto the defendant, Howard T. James, a good and sufficient grant, bargain and sale deed for all of the interest that the said Thomas F. James owned

or had or possessed in the real property described in this action; that the said deed from the said Thomas F. James to the defendant Howard T. James, was duly recorded in the office of the county recorder (of the county of Los Angeles) of the state of California immediately after its execution and delivery, and that the said deed from the said Thomas F. James to the said defendant was recorded prior to the recordation of the deed from the said Thomas F. James to the said Alice T. James; that at the time of delivery of the deed to defendant and the recordation thereof, defendant did not have any knowledge of the deed to plaintiff dated August 22, 1922.”

Conclusions of law based upon this finding were drawn in favor of the defendant and judgment entered accordingly.

The testimony upon which finding No. 4 is based, as set forth in the transcript, shows the following facts: That prior to the sixteenth day of August, 1922, the plaintiff and Thomas F. James acquired the property described in plaintiff’s complaint by a deed conveying the same to them as joint tenants; that on the sixteenth day of August, 1922, the plaintiff and said Thomas F. James went to the office of Charles L. Evans, an attorney at law, and then and there a deed was executed by the said Thomas F. James, purporting to convey all of his interest in the described premises to his wife, the plaintiff .Alice T. James. This deed contains, among other things, the following paragraph: “This conveyance is made, given and accepted by the parties hereto for the purpose of vesting the foregoing described real property in the grantee herein as her sole and separate property without any limits or restrictions whatsoever.” The testimony of the plaintiff to the transaction is as follows: “I received the deed on August 16th in the presence of Mr. Evans and my husband on the day the deed was handed to me. There was a conversation between Mr. Evans, my husband and myself.- Mr. Evans remarked that Mr. James had told him about things at the house and had this transfer made up, transferring his interest to me. After this Mr. Evans asked me what would be my disposition of the property in case of my death. I told him I did not know what to say and asked, ‘What does Mr. James want?’ And he remarked that he Avanted it left to his boys and I said, ‘All right.’ There was something said in this con

‘ ‘ On August 22nd or August 21st, I received a letter from Mr. James: (We here quote the only part thereof material to this ease.) ‘You will now admit, won’t you, Alice, that I have proven when it came to the hard test to be a true friend and that notwithstanding squabbles, I transferred to you all I had including personal financial standing in Los Angeles,’ ” etc.

The testimony of Mr. Evans, called as a witness on behalf of the defendant, concerning the transaction is, in substance, as follows: “About the middle of August, 1922, Mr. and Mrs. James came to my office. On the day or two before the 16th day of August, 1922, Mr. James talked with me about the possibility of having some difficulty at Ms mine, or in the mine in which he was interested. On the 16th day of August, they both came to my office, and the deed which has been introduced in evidence was drawn or had been drawn.

Howard T. James, the defendant, testified as follows: “I am one of the defendants in this action and Thomas F. James is my father; I have seen the document handed me before and that is my father’s signature. My father gave it to me and I took it up and had it recorded on the day it was given to me, one the 22nd day of September, 1922.” (Here was exhibited, identified, and admitted in evidence the deed to the defendant from Thomas F. James, purporting to convey to the defendant all the right, title, and interest of the party of the first part in and to the premises described in plaintiff’s complaint.) “I knew nothing about the deed from my father to his wife at the time I took this deed.”

The finding of the trial court which we have set forth is to the effect that there was no delivery of the deed except as conditional upon the plaintiff executing a will devising and bequeathing the described property to Howard T. James and his brother, Arthur James, and, also, that there was a failure of consideration for the deed executed and delivered by Thomas P. James to Alice T. James. There is no testimony in tlxe record nor finding by the court to the effect that Howard T. James ever paid any consideration, valuable or otherwise, for the execution and delivery to Mm of the instrument dated September 22, 1922, purporting to coxxvey all the right, title, and interest of Thomas F. James to the defendant Howard T. James.

[1] The defendant in this case, basing his claim upon a deed executed and recorded subsequent to the execution and delivery of an unrecorded deed, takes upon himself the burden of showing that the deed accepted by him was received without actual knowledge of the prior unrecorded deed and, also, that he has, in fact, parted with a valuable consideration as the purchase price of the property. In Black Eagle Oil Co. v. Belcher, 22 Cal. App. 258 [ 133 Pac. 1153 , the law in this particular is set forth in the opinion as follows: “ ‘To entitle a party to protection as such purchaser, he must prove the payment of the purchase money in good faith and without notice, actual or constructive, prior to and down to the time of its payment, for if he had notice at any moment of time before the payment of the money, he is not a bona fide purchaser.’ (Boone v. Chiles, 10 Pet. (U. S.) 210 [ 9 L. Ed. 388 , see, also, Rose’s U. S. Notes]; Scott v. Umbarger, 41 Cal. 419 ; Eversdon v. Mayhew, 65 Cal. 163 [ 3 Pac. 641 ].) Nor can the recitals contained in the deed as to the consideration paid be accepted as prima facie proof of such payment. Such recitals are but the declara

[4] Though not exactly in chronological order, we will here consider the finding and alleged failure of consideration relative to the deed under which the plaintiff claims. Neither the allegations of the affirmative defense in the answer nor the findings of the court contain any mention of or intimation that the plaintiff Alice T. James was or had been guilty of any fraudulent representations or fraudulent act relative to the conveyance executed to her by her husband. The only fact appearing in the testimony in relation thereto is that no will has ever been executed by Alice T. James and that the plaintiff stated that she would execute such a will. It may also be mentioned herein that the testimony of the plaintiff is to the effect that she had not altered or changed her intentions in relation thereto up to the time of the attempted conveyance by Thomas F. James to the defendant herein. It seems clear that under such circumstances and the testimony contained in the transcript which we have set forth no case has been made out on the theory of a failure of consideration. In 9 California Jurisprudence, section 42, page 141, it is said: “A deed without fraud in

It may be here stated that the defense of failure of consideration subsequent to the execution of a deed presupposes delivery. Otherwise, there would be no conveyance and nothing upon which to predicate a failure of consideration, prerequisite to judgment of rescission.

In the case at bar there was nothing left to be done or performed with relation to the instrument of conveyance by the grantor. If anything was to be done or performed by the grantee it was to be done or performed subsequent to the time when the deed of conveyance was manually transmitted by the grantor to the possession of the grantee. No act was provided to be then and there performed. The allegation in the answer and the finding of the court are to the effect that the will was to be immediately executed, but the testimony and the actions of the parties do not support either the allegation or the findings in such particular. The deed of conveyance was delivered by the grantor to the grantee upon the simple oral promise, if promise it may be called, that she would execute the desired will, no time or date for the execution thereof being stated, which, of course, would mean within a reasonable time, provided such promise were of any force or effect whatever. [5] Where the contract or agreement on the part of the vendor is wholly executed, the mere promise and failure to perform on the part of the grantee thereafter is not sufficient ground for setting aside a deed. In Lawrence v. Gayetty, 78 Cal. 126 [ 12 Am,

[6] The cases referring to conditions which may furnish a basis for rescission are all based upon conditions set forth in the instrument of conveyance. In the case at bar, there was no condition expressed in the instrument and, in law, it was not delivered conditionally. There was at best only an oral promise on the part of the grantee of something to be done by her at a subsequent time. Under such circumstances section 1056 of the Civil Code applies. The section reads: “A grant cannot be delivered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made.” In 9 California Jurisprudence, section 60, page 165, following a quotation of the section above set forth, we find the text reading thus: “This principle is well fortified by judicial decisions. Hence, if an instrument is delivered to the grantee as the present deed of the grantor it becomes freed from any condition not expressed in the deed itself, and

[7] The respondent urges that the plaintiff must recover upon the strength of her own title and not upon the weakness of the title claimed by her adversary. This is true, and the cases set forth in respondent’s brief clearly support the principle contended for, but they are not applicable here for the simple reason that what we have hereinbefore set forth, taken from the findings and the record in this case, clearly establishes that the findings and judgment of the trial court should have been in favor of the plaintiff. For this reason and because it is necessary to order a new trial

[9] The next objection which seems necessary to consider is that in relation to excluding testimony as to statements made by the grantor of the plaintiff just before and after the execution and delivery of the conveyance by him to her. It is well settled that all such statements which would indicate that the grantor named in the instrument had divested himself of title are admissible as against interest, although partaking of the nature of hearsay testimony. (Williams v. Kidd, 170 Cal. 631 [Ann. Cas. 1916E, 703 (and copious notes on pages 713 and 714 thereof), 151 Pac. 1 ].) Other errors are assigned in the admission and exclusion of evidence, but are not of sufficient importance to require consideration herein. The judgment is reversed.

Thompson, J., pro tem., and Finch, P. J., concurred.