Palmer v. Palmer

This is an appeal from a judgment refusing to quiet plaintiff’s title to property in the city of San Diego, and refusing to cancel a portion of a deed and awarding defendants Swartzbaugh a judgment lien on a one-half interest in the property.

The complaint contains three causes of action. The first is in the usual form of an action to quiet title. The second cause of action sought cancellation' of a portion of a deed dated May 3, 1929, from Adah Palmer and O. B. Palmer, husband and wife, to Bernice F. Crawford, and a deed from Bernice F. Crawford to Adah Palmer and 0. B. Palmer for reasons of (1) lack of consideration, (2) lack of delivery, and (3) because plaintiff did not know she was signing, and did not intend to sign a deed, but thought she was making a will. No attention need be paid to the third cause of action because no question is raised as to the propriety of the trial court’s order granting a nonsuit as to it.

Besides denying numerous allegations of the complaint defendants Swartzbaugh asserted a lien on the property by

The Palmers came to California from Iowa in 1912 or 1913. Mrs. Palmer brought $13,500 with her which admittedly was her separate property and represented her accumulations from a business she had conducted there. Mr. Palmer had been in business in Iowa, but the only result of those ventures were judgments against him.

Mrs. Palmer invested her funds in real estate in San Diego, taking title to the several parcels in her own name. It is not questioned that up to May 3, 1929, the real estate was her separate property. Mr. Palmer had a small business in San Diego which he conducted with questionable success.

At various times prior to 1929 Mr. Palmer had requested Mrs. Palmer to convey title to some of the property to him. Mrs. Palmer refused to accede to these requests. Some time prior to May 3,. 1929, the couple learned that a neighbor whose husband had died was having trouble in getting his estate settled; that it was taking considerable time and costing her quite a sum of money. Mr. and Mrs. Palmer reopened the discussion of their own affairs, particularly concerning the property owned by her. On May 3, 1929, they executed a deed conveying the real property belonging to plaintiff, to Bernice P. Crawford, who in turn on the same day reconveyed the property to them as joint tenants. The deeds were recorded on the following day.

Mrs. Palmer testified that she decided to make a will in favor of Mr. Palmer; that she consented to have her husband consult an attorney about this matter; that he subsequently told her that he had consulted an attorney whom he knew but with whom plaintiff was not acquainted; that this attorney agreed to draw the will; that she and her husband went to the office of the attorney who had prepared documents for her signature; that there were a number of papers there; that she told the attorney that she did not know what the papers were; that “What I was looking for was a will”; that the attorney said to her, “Well, Mrs. Palmer, this will cover exactly what you want”; that she replied that she wanted “a will and nothing more than that.” She also testified that she told the attorney that what she expected was a

Mr. Palmer was called as a witness for plaintiff for cross-examination under the provisions of section 2055 of the Code of Civil Procedure. He proved a most willing witness for plaintiff. He corroborated her testimony in many important particulars. He testified that Mrs. Palmer wanted to execute a will; that he knew when the deed to Bernice F. Crawford was signed that it was not a will but a deed; that for the first time in his life he put something over on his wife.

The attorney who prepared the deeds was called as a witness. He testified that he had been attorney for Mr. Palmer but had not met Mrs. Palmer prior to May 3, 1929. He further testified that “Mr. Palmer came to the office one day just prior to the execution of these joint tenancy deeds. He seemed perturbed—told me that a neighbor lady had been having some trouble over her husband’s estate, and was not able to get any money out of it, and it was costing her a lot of money. He wanted to know if there was any way that his and Mrs. Palmer’s estate could be fixed so as to avoid that kind of trouble in the event of the death of either of them. I told him my property was in joint tenancy; that in my opinion a joint tenancy estate would be the best for them. I told him also that in the event of the death of either one of them the entire estate would go to the survivor; there was probably more said, but that is the gist of the conversation at that time. Q. After this conversation with Mr. Palmer, did you prepare the joint tenancy deeds? A. Yes, I did.” He further testified concerning conversations on May 3rd: “Mrs. Palmer referred again to the neighbor lady’s difficulty over the probate matter; she wanted to be assured that what I was proposing to do would avoid probate, and avoid the trouble that the neighbor was having. At that time she told me that the houses—the property that was described in the deed—it was her separate property; that she had accumulated the money that bought those houses in the nursery busi

It is also in evidence that Mrs. Palmer had bought and sold property in Iowa and had given and received deeds

It may be observed that on direct examination Mrs. Palmer appeared to be a witness of average intelligence and possessed of a good memory. On cross-examination her memory was bad and she was evasive to an extreme degree. This may be one of the reasons why the trial court seemed to give little weight to her testimony.

On October 8, 1937, Mr. Palmer was involved in an automobile accident. On March 5, 1938, J. C. Swartzbaugh and Jack Swartzbaugh brought suit against him for damages resulting from this accident. The case was set for trial on May 12, 1938, and went to trial on that day. At the conclusion of the trial the trial judge announced judgment for plaintiffs. On May 26, findings of fact and conclusions of law were filed reciting that plaintiffs were entitled to judgment in the total sum of $15,360.55. Judgment was signed and filed on the same day.

On May 11, 1938, Mr. and Mrs. Palmer signed, acknowledged and had recorded a declaration of homestead on Lots 36 and 37 in Block B of Wallace Heights Tract in San Diego. These lots compose one of the tracts described in the deed from Mr. and Mrs. Palmer to Bernice P. Crawford and in her deed to them as joint tenants. This property is not described in the complaint filed in this action.

On May 24, 1938, plaintiff Adah Palmer executed a grant deed conveying to Rosa L. Keller “my undivided one-half interest” in the property described in this complaint, being the same property described in the deeds to and from Bernice P. Crawford, excepting the property described in the declaration of homestead. ' On the same day Rosa L. Keller reconveyed this property to plaintiff. These deeds were recorded on June 2, 1938.

The trial court found all necessary facts in favor of the Swartzbaughs and that they had a valid and enforceable lien on an undivided one-half interest in the property described in the complaint. It was also particularly found that prior to May 3, 1929, the property belonged to plaintiff as her separate property; that “it is true that said grant deeds (of May 3,

There is no attack made on the deed from plaintiff to Rosa L. Keller nor upon the deed from her to plaintiff. It follows that the joint tenancy to the property described was thereby broken and that the property was thereafter owned by.plaintiff and 0. B. Palmer as tenants in common.

The trial court drew the conclusion of law that plaintiff could take nothing by her suit and rendered judgment against her, and that the Swartzbaughs had a valid and enforceable lien upon the one-half interest of 0. B. Palmer in the property.

Plaintiff’s principal ground of attack on the judgment is that the evidence fails to support the findings. Of course, if the testimony of Mr. and Mrs. Palmer be accepted as true in its entirety, and if contrary evidence and infer

As we have observed, plaintiff furnished some ground for doubting her credibility by her attitude on the witness stand. Mr. Palmer impeached himself when he admitted that he had deliberately attempted to defraud his wife in the transaction of May 3, 1939.

The testimony of the attorney who prepared the deeds clearly indicates that Mrs. Pálmer knew she signed a deed and not a will. To a certain extent Mrs. Palmer admitted the truth of this evidence when she grudgingly admitted that she glanced through this paper and knew when she signed it that it was not what she expected. She testified she expected a will.

Mrs. Palmer was not a person entirely ignorant of business affairs. She had conducted a successful business for twenty years in Iowa before coming to California. She had given and received deeds conveying real property. She took entire charge of her property in California and had paid mortgages on it. She had possession of the four deeds conveying title to the San Diego properties to her, the first of which was given in 1914. She had executed several wills.

When plaintiff conveyed “my undivided one-half interest” in the described property to Rosa L. Keller she certainly recognized that she was not the owner of the full title to the property, but that she had a co-tenant with a vested interest in it.

It should be worthy of note that the deed to Bernice P. Crawford and her deed to Mr. and Mrs. Palmer conveyed not only the property described in the complaint but also the property described in the homestead. How the fraud and mistake could go only to property not covered by a homestead, and not to property covered by a homestead and therefore exempt from execution, when all of the properties are described in the deed under attack, is not easy to understand.

It'is of course true that if the evidence is conflicting, and there is substantial evidence in the record supporting the findings and judgment, an appellate court cannot reverse the judgment because of conflicts in the evidence.

The evidence of the attorney who drew the deeds dated May 3, 1929, clearly shows that plaintiff knew she signed a deed and not a will. The only question not covered by his

There is a further rule that must control on this appeal. It is stated in Mah See v. North American Acc. Ins. Co., 190 Cal. 421 [ 213 Pac. 42 , 26 A. L. R. 123 ], as follows: “This court has frequently held that even though all the facts are admitted or uncontradicted, nevertheless, if it appears that either one of two inferences may fairly and reasonably be deduced from those facts, there still remains in the case a question of fact to be determined by the jury (or by the trial judge where the case is tried without a jury), and that the verdict of the jury or the finding of the trial judge thereon cannot be set aside by this court on the ground that it is not sustained by the evidence (Anderson v. Los Angeles Transfer Co., 170 Cal. 66 [ 148 Pac. 212 ]). In so far as the evidence is subject to opposing inferences, it must upon a review thereof be regarded in the light most favorable to the support of the judgment (Woodard v. Glenwood Lumber Co., 171 Cal. 513 , 519, 520 [ 153 Pac. 951 ]; Hassell v. Bunge, 167 Cal. 365 , 367 [ 139 Pac. 800 ].) ‘In reviewing a question of this kind, all the inferences reasonably possible from the evidence favorable to the plaintiff [the prevailing party] must be indulged by this court.' (Bandle v. Commercial Bank of Los Angeles, 178 Cal. 546 , 547 [ 174 Pac. 44 , 45].)”

There are strong inferences to be drawn from the evidence that Mrs. Palmer knew the legal effect of deeds and knew that the deeds of May 3, 1929, vested a present estate in her property in O. B. Palmer. We have already summarized that evidence and it is unnecessary to repeat it here. Under the rule last quoted we must also draw those inferences here and must conclude that the findings of fact and that portion of the judgment establishing a valid lien in favor of the Swartzbaughs on an undivided one-half interest in the property described in the complaint and judgment is supported by substantial evidence and must be affirmed.

It is not questioned here and it was not questioned in the court below that plaintiff was and is the owner of an undivided one-half interest in the property described in the complaint. The trial court so found and that finding is supported by the evidence. It follows that plaintiff was entitled to have her title to an undivided one-half interest in the prop

The portion of the judgment establishing the lien of the judgment in favor of J. C. Swartzbaugh and Jack Swartzbaugh on the one-half interest of O. B. Palmer in the property described in the complaint and judgment is affirmed.

The portion of the judgment denying plaintiff any relief and refusing to quiet her title to an undivided one-half interest in the same property is reversed with instructions to the trial court to modify its conclusions of law and judgment in accordance with the views just expressed and to enter judgment accordingly.

Neither party will recover costs of appeal.

Barnard, P. J., and Griffin, J., concurred.'

Appellant’s petition for a hearing by the Supreme Court was denied March 27, 1942.