Shields v. Shields

The issue on this appeal is directed to the sufficiency of the evidence to sustain a finding and conclusion of the trial court that a conveyance of real property was made without consideration, and for this reason was not within the scope of a power of attorney authorizing the sale and conveyance.

The plaintiff, who is the appellant, the defendant, who is the respondent, and Ellice Margaret Dunbar, respectively, are brothers and sister. The plaintiff is the grantee in a deed in which his mother is the grantor; which was executed by his sister on behalf of his mother under a power of attorney; and which purports to convey to him a one-half interest in property formerly owned by his mother and the defendant as joint tenants. At one time the defendant was the sole owner of this property. The power of attorney was executed by the mother on August 11, 1959; authorized the sister, in the name and for the use and benefit of the mother, to “sell, exchange, grant

The plaintiff, appellant herein, brought this action to partition the property in which he had a claimed one-half interest. The defendant denied the existence of this interest, and by cross-complaint sought to quiet his title to the whole of the property, alleging that the conveyance to the plaintiff was without consideration; exceeded the authority vested in the sister under her power of attorney; and, therefore, was invalid. The court found in favor of the defendant; sustained his contentions; and entered judgment accordingly. The plaintiff appeals, contending that the evidence is insufficient to support the finding that the conveyance was without consideration.

A power of attorney conferring authority to sell, exchange, transfer or convey real property for the benefit of the principal does not authorize a conveyance as a gift or without a substantial consideration (Alcorn v. Gieseke, 158 Cal. 396 , 401 [ 111 P. 98 ] ; Randall v. Duff, 79 Cal. 115 , 125 [ 19 P. 532 , 21 P. 610 , 3 L.R.A. 754 ] ; Mott v. Smith, 16 Cal. 533 , 557; Bertelsen v. Bertelson, 49 Cal.App.2d 479 , 484 [ 122 P.2d 130 ]; Bank of America v. Perry, 41 Cal.App.2d 133 , 136 [ 106 P.2d 53 ]) ; and a conveyance without the scope of the power conferred is void. (Alcorn v. Gieseke, supra, 158 Cal. 396 , 401; Alcorn v. Buschke, 133 Cal. 655 , 657 [ 66 P. 15 ]; Randall v. Duff, supra, 79 Cal. 115 , 125; Dupont v. Wertheman, 10 Cal. 354 , 367.)

In support of his position that the evidence is insufficient to sustain the finding that no consideration was given for the conveyance in question, the plaintiff relies upon his testimony, and that of his sister, that the deed was given in consideration for past and future support of their mother, and upon the presumption of consideration attaching to a written instrument. (Civ. Code, § 1614.) However, the weight to be given this testimony and to the presumption “was a matter solely and exclusively for the trial court.” (Bank of America v. Perry, supra, 41 Cal.App.2d 133 , 140.) The trier of fact is free to disbelieve even the uncontradieted testimony of a witness if there is any rational ground for doing so. (Hicks v. Reis, 21 Cal.2d 654 , 659-660 [ 134 P.2d 788 ].)

When the sufficiency of the evidence to sustain a finding is contested on appeal, the sole issue for determination is whether there is any substantial evidence, contradicted or uncontradicted, direct or indirect, which will support the finding (Primm v. Primm, 46 Cal.2d 690 , 693 [ 299 P.2d 231 ]; Church of Merciful Saviour v. Volunteers of America, 184 Cal.App.2d 851 , 856 [ 8 Cal.Rptr. 48 ]) ; every inference reasonably deducible from the evidence will be accepted, whereas those which support a contrary finding will be rejected (Hamilton v. Pacific Elec. Ry. Co., 12 Cal.2d 598 , 602 [ 86 P.2d 829 ] ; Wilbur v. Wilbur, 197 Cal. 1 , 7 [ 239 P. 332 ]); and, in the course of this determination, the decision of the trier of fact upon all conflicts in the evidence, conflicting interpretations thereof, conflicting inferences which reasonably may be drawn therefrom, the credibility of the witnesses and the weight to be given their testimony are not subject to review. (Blank v. Coffin, supra, 20 Cal.2d 457 , 461; Church of Merciful Saviour v. Volunteers of America, supra, 184 Cal.App.2d 851 , 856.)

Not only was there a reliable basis for refusing to accept the testimony of the plaintiff and his sister respecting the existence of the consideration for the deed in question because of their interest in the case, but also because of contradictions existent in the evidence. The plaintiff was asked: “Would you say that it was a gift deed to you?” and he replied : “ That’s right. ’ ’ Plaintiff’s trial counsel, who is not his counsel on this appeal, stated to the trial court that the conveyance to the plaintiff was a gift from his mother, at one time referring to it as a “gift in the true sense,” which she wished to make because of services previously rendered to her

The judgment is affirmed.

Griffin, P. J., and Shepard, J., concurred.