Opinion
Rehearing Granted March 22, 1928.
Department 2.
Action in ejectment by Clara K. Schade, as executrix of the estate of Jennie C. Hurd, deceased, against Addie L. Stewart. Judgment for plaintiff, and defendant appeals.
Reversed
Appeal from Superior Court, Los Angeles County; Victor R. McLucas, judge.
COUNSEL
Matthews & Walter, of Los Angeles, for appellant.
Hugh A. McNary, of Los Angeles, for respondent.
OPINION
SHENK, J.
This is an appeal from a judgment in favor of the plaintiff in an action in ejectment. The plaintiff brought the action in her representative capacity as executrix of the estate of Jennie C. Hurd, deceased. She prayed for a judgment of possession and damages for unlawful withholding. The decedent in her lifetime had been he owner of the real property in question. She sold it to the defendant, who executed, as part of the purchase price, a note payable in installments and a trust deed conveying the title to said property as security to Title Guarantee & Trust Company, a corporation, as trustee. At the time of the death of the decedent said note and trust deed were a part of the assets of her estate. She left a will in which the Salvation Army, a corporation, was named as a legatee. In addition to this provision she named some sixteen natural persons as legatees and devisees. The defendant failed to make her payments required by said promissory note. The plaintiff, as executrix, declared the defendant in default, and directed the trustee to sell the property pursuant to the terms of the trust deed. The sale was held, and the plaintiff, as executrix, bid in the property, and received a purported deed thereto in which Title Guarantee & Trust Company was named as grantor, and the ‘heirs or devisees of Jennie C. Hurd, deceased,’ were named as grantees. At the trial, the defendant objected to the introduction of this deed in evidence on the ground, among others, that the same was void for uncertainty in the designation of the grantees. The objections were overruled, and the court received the deed in evidence as proof of the plaintiff’s title and right of possession. At the close of plaintiff’s case, the defendant moved the court for a nonsuit, which was denied. The alleged errors of the court in admitting the deed in evidence and in denying the motion for a nonsuit form the principal grounds now urged for a reversal of the judgment.
The plaintiff cites and relies on numerous authorities to the effect that a deed naming the ‘heirs of a deceased person’ as grantees is a sufficient designation, and that a designation of the ‘executors’ of a deceased person is also sufficient, on the theory that that is certain which may be made certain. Newlove v. Mercantile Trust Co., 156 Cal. 657, 105 P. 971; Peeples v. Rudulph, 153 Ga. 17, 111 S.E. 548; Hoover v. Malen, 83 Ind. 195; Shaw v. Loud, 12 Mass. 447; Hill v. Jackson (Tex.Civ.App.) 51 S.W. 357. The plaintiff also relies on section 1582 of the Code of Civil Procedure as authority for bringing the action as personal representative. That section provides that an executor or administrator may bring an action for the recovery of real or personal property in all cases in which the same might have been brought by the testator or intestate. But the plaintiff has cited no authorities holding that the ‘heirs or devisees’ of a deceased person is a sufficient designation. Nor have we discovered any authority where it has been held that a deed so uncertain in the description of the grantees as the one here involved is sufficient to pass the title. Since a conveyance of real property must be in writing, the parties who are to take as grantees must be sufficiently ascertained by the written instrument or it is a nullity, and fails to pass the legal title. Rixford v. Zeigler, 150 Cal. 435, 438, 88 P. 1092, 119 Am. St. Rep. 229. Assuming that a deed to ‘the heirs’ alone of a deceased person is sufficient, it still cannot be ascertained from an inspection of the present deed whether it is a conveyance to ‘the heirs,’ who constitute one class, or to ‘the devisees,’ who may constitute another entirely different set of grantees. It is difficult to perceive how a court, upon an inspection of the document, could find and adjudge who the grantees were intended to be. If the designation had been to the ‘legatees and devisees’ of the deceased, the conveyance might have been sufficient under the authority of Webb v. Den, 17 How. (58 U. S.) 576, 15 L.Ed. 35, a case relied upon by the plaintiff. Again, if the designation in the present deed had been to the ‘heirs and devisees’ of the decedent, the situation might have been different. This, of course, we do not decide. But, when the words are, as here, used in the disjunctive, it is impossible to tell to which class it was intended to convey the title.
We are satisfied that the said deed was and is void for uncertainty, and passed no title. It must therefore be held that the proof failed to show title or right of possession in the plaintiff, and the motion for a nonsuit should have been granted.
The foregoing determination renders it unnecessary to pass upon other points made by the parties.
The judgment is reversed.
We concur: RICHARDS, J.; LANGDON, J.