The record-union., 1891-03-18
SUPREME COURT DECISIONS.
Filled March 10, 1871
DEPARTMENT TWO.
Appellant,
No. 1888.
PARKER EFT AL,


In the court below the judgment was in
favor of defendants, and from this judg-
ment and an order denying his motion
for a new trial the plaintiff appeals.
The findings of the court show that the
land IN controversy was originally con-
veyed to the mother of the plaintiff-that
is, she was named as grantee in the deed
conveying it, but that the property was
paid for with the community funds and
property Oft the mother and her husband,
who was the father of plaintiff The
mother, Mary Dean, died January 26, 1877,
leaving surviving her her said husband
and three children. On October Sd fol-
lowing, the father died, but prior to his
death he on the 5th day of February, 1877,
fled in the proper Probate Court petit
tion signed by him, praying for letters of
administration on the estate of his de-
ceased wife, in which it was stated
that the land in controversy was her
separate property. The findings further
show that this same property was
afterwards, in 1882, in the matter of the
estate of said Mary Dean, sold to one
Thomas O'DonneH, which sale was con-
frmed by the court, and said O'Donnell
conveyed to defendants.
The court also found: THAT before the
death of said John Dean, he, the said
John Dean, and on the 18th day OF May,
1S77, made and executed deed of said
property described in the complaint to
James p. Dean, the plaintiff herein, for a
consideration of one dollar, but that said
deed was never delivered; no considera-
tion was ever paid by the grantee therein
named; the said deed was never recorded,
and the defendants herein never We're
aware of or had any notice of the exist
ence of said deed until after their pur-
chase of the property in dispute in this
action; nor did the said John Dean have
or own any interest in said property at
the time he executed said deed, or at any
time thereafter, by reason OF said action
in filing said petition.''
AS conclusion of law the court found
t'that the said act of John Dean in filing
said petition, setting forth therein that
the said property was,his wife's separate
property and causing the same to be sold
hereunder, forever estops said John
Dean, his heirs and successors from
claiming the same, and has the effect
teven if it were community property of
making it the separate property of Mary
Dean; that plaintiff neither has, nor owns
any right, title or interest of any nature
whatsoever in or to said property, but
that the absolute title in fee thereto, and
ownership thereof is in the defendants" !"
/. If the latter part of what is termed
the conclusions of law" should be con-
sidered rather the finding of an ultimate
fact, the sutficiency of the evidence to
justify it cannot be considered ON this ap-
cause, or specification wherein the evil
dence fails to sustain it. But we think
that looking at the entire findings, this
should be regarded simply as a conclu-
sion, which the learned Judge of the court
below drew as one of law, from the
specific findings of fact, which preceded
1t, and that, therefore, we may review it;
and, if in law, the conclusion is not prop
erly drawn from such preceding facts, the
error may be corrected.
q 1t is apparent that the court in its
sixth finding above set out does not use
the word executed in its strict legal
sense, and the proper construction of that
finding is that the deed referred to there
in was signed, but not, in fact, delivered.
g. The facts found by the court do not
support the judgment The court finds
in effect that the property in controversy
was community property of the husband,
John Dean, and his wife, Mary Dean,
and that the husband survived the WIFE
This being so, upon the death of the wife
the property belonged to the surviving
husband, without administration Civil
Code. Sec. 140l), and the estate of Mary
Dean never had any title to or interest in
this property to convey to any persons,
and the facts alleged in the answer of de-
PENDANTS as matter of estoppel, and found
by the court, are not such as to estop the
plaintiff here from showing that the prop
erty IN controversy was never the sepa-
rate property of the said Mary Dean,
under whom the defendants claim. The
facts necessary to be shown, in order to
call into exercise the principle Of equita-
Bile estoppel, are stated by Field, C. j., in
Blddle BoggS VS.. Merced Mining Com
pany IA Cal. $50, as follows: ''BSrst, that
the party making the admission by his
declarations or conduct was appraised of
the true state of his own title; second
that he made the admission with the ex
press intention to deceive or with such
carelessness or culpable negligence as to
amount to constructive fraud; third, that
the other party was not only destitute of
all knowledge of the true state of the
title, but of the means of acquiring such
knowledge; and, fourth, that he relied di-
rectly upon such admission and will be
injured by allowing its truth to be dis
proved"
In referring to this quotation the court
IN Smith VS.. Penny IA Cal. 1861, says:
This specification of the facts which are
essential to the operation of the estoppel
was approved in Davis VS.. Davis (26 Cal.
23), and in many other cases in this court,
except that in some of the cases, the third
Speclncatlon was modified in one particu-
lar, it not being deemed requisite that the
other party should be shown to be desti-
tute of all possible means of knowledge
OF the true state of the title, but only of
convenient or ready means to that end. -
(See also Bigelow on Estoppel, p. 49,
4. one OF the questions to be deter
mined was whether a certain deed, signed
by the father of plaintiff and purporting
to convey to plaintiff the land in contro-
yersy, was ever delivered, the evidence
showing that it had been placed by the
father in the custody of one Daniel
O'keefe, who was a witness upon the
trlal. While giving his testimony, the
defendants put to Okeefe this question.
Supposing the father had come in year
after he left the deed with you-or two or
three weeks afterwards-and asked YOU
Tor the deed again, would you have given
1t To him ?''
This question was objected to upon the
ground that it was immaterial, irrelevant.
and incompetent. The objection was
overruled, the plaintiff excepting to such
ruling, and the witness answered: "Yes,
sir.''
The objection to this question should
have been sustained, as the evidence
sought by it was clearly irrelevant The
matter to be determined was what was
the Intention of plaintiffs father in leav-
ing this deed with the witness, and for
the purpose of arriving at this intention,
evidence of any declarations made, OF
conversations had in relation to that sub
ject, by the said John Dean, at that or any
subsequent time, would have been COM
petent; but what the witness would have
done, if the deed had afterwards been
called for can have no tendency to show
whether the father did or did not intend
in what he did to make delivery of the
deed for the benefit of his son.
.. The case must be remanded for new
trial, and as we cannot know that the evi-
dence upon another trial, in relation tc
the delivery of the deed referred TO, will
be in all respects the same as appears in
this record, we do not deem it proper tc
pass upon the question whether the sixth
finding of the court is supported by the
evidence. Whether there was delivery
for the benefit of the plaintiff is question