Opinion
Rehearing Granted July 17, 1930
Appeal from Superior Court, Los Angeles County; Daniel Beecher, Judge.
Action by Dora M. Tasker against Antonio M. Nieto and others. From an adverse judgment, defendants Antonio M. Nieto and wife appeal.
Reversed.
COUNSEL
George Baltimore and Robert J. Adcock, both of Los Angeles, for appellants.
John F. Poole, of Los Angeles, for respondents.
OPINION
PLUMMER, J.
Judgment was entered in this action in favor of the respondent Fanny R. Cunningham, and against the plaintiff and the defendants Nieto. From this judgment, the defendants Nieto appeal.
The plaintiff began this action to quiet title to certain property situate in the city and county of Los Angeles, described as follows, to wit: "The northerly portion of lot 81, Leonis Tract, deed book 824, pages 123-126, records of Los Angeles county, having a frontage of 24.95 feet on the westerly side of Utah street, and being 21 feet at the westerly end, 123.60 feet at the southerly side and 106 feet at the northerly side." The defendants Nieto and the respondents Cunningham answered, claiming title to the property described in the complaint, and respectively praying for judgment in their favor.
At the conclusion of the trial the court made the following findings, omitting such portions as are not material:
Finding No. 1.
"That the defendant Fanny R. Cunningham was during all the time herein mentioned, and now is, the owner in fee simple and entitled to the possession of the following described real property situate in the County of Los Angeles, State of California, to-wit: ‘The northerly one-half of Lot 81, Leonis Tract, as per map recorded in deed book 824, pages 123-126, records of Los Angeles County.’ "
Finding No. 2.
"That the claims of said plaintiff Dora M. Tasker, and said defendants Antonio M. Nieto and Magdalena M. Nieto, *** in and to said real property, are without any right whatever, and that said plaintiff Dora M. Tasker, and said defendants Antonio M. Nieto and Magdalena M. Nieto, *** have no estate, right, title, interest in, or claim or lien upon said property, or any part thereof."
Finding No. 4.
"That the allegations of plaintiff’s complaint herein, and the answers or cross-complaint of defendants Magdalena M. Nieto and Antonio M. Nieto, in conflict with the foregoing findings, are not true."
From these findings the court drew its conclusions of law that the defendant Fanny R. Cunningham was entitled to a decree quieting her title to said property against the claims of the plaintiff and the other defendants in this action, and enjoining and debarring them from asserting any estate, right, title, or interest in and to said property, or any part thereof.
While the answers of the defendants Nieto set up, among other defenses, title by adverse possession, it appears from the transcript that the case was tried upon the theory, also, that the defendants Nieto claimed an interest in said premises by reason of a certain agreement of purchase, to which reference will hereafter be made.
The transcript shows that the defendants Nieto obtained a deed to the property involved some time during the year 1903, and at all times from said date down to the trial, or shortly before the trial, had been in possession of said lot of land, and of the improvements thereon, and had for many years occupied the same as the place of their residence. The transcript likewise shows that neither the plaintiff Dora M. Tasker nor the respondent Fanny R. Cunningham, nor the defendant W.P. Cunningham, ever had any actual possession of the property.
While several other questions have been argued in this case, only one vital question is really tendered for the court’s consideration. The record shows that the property was sold on account of delinquent taxes in the year 1914; that W.P. Cunningham was the purchaser thereof, and that W.P. Cunningham thereafter conveyed his interest to Fanny R. Cunningham, and that subsequently to this sale, and in the year 1916, the property was again sold by the city treasurer of the city of Los Angeles, on account of the failure of the owner of the lot to pay the amount due and delinquent on bonds issued for street assessment work, and that at such sale the Empire Securities Company of Los Angeles became the purchaser, which company conveyed to Dora M. Tasker, plaintiff herein, who thereafter entered into an agreement of purchase and sale with the defendants Nieto. This agreement of sale provided for payment in installments. It was claimed by the plaintiff upon the trial that the installments had not been paid as provided for in the agreement of purchase and sale, and that therefore the defendants Nieto had forfeited their interest in the property. The court made no finding upon this issue, and therefore what we have to say relates only to the testimony introduced, touching the question of payments. As set out in the transcript, the testimony is overwhelmingly in support of the contention of the appellants Nieto that everything due upon the contract of purchase, or agreement entered into between the plaintiff and the defendants Nieto, had been paid by the defendants Nieto, including the installments mentioned therein, and all taxes that had subsequently accrued upon the premises. While there is some testimony to the effect that the respondent Cunningham paid taxes upon the lot, it is of such an uncertain character as scarcely to raise a conflict with the testimony of the defendants Nieto and their witnesses, to the effect that the installments due on the contract with the plaintiff, Tasker, were all paid, and that the money to pay the taxes was also paid by the defendants Nieto and the plaintiff, Tasker, and the receipts set out in the transcript indicate that the plaintiff, Tasker, alone paid the taxes after acquiring a deed thereto.
From what we have said, irrespective of the claim of the defendants Nieto of having acquired title to the premises in 1903, they had an interest in the real property involved by reason of the agreement of purchase and sale with the plaintiff, Tasker, and if the deed made by the treasurer of the city of Los Angeles to the Empire Securities Company was a valid conveyance, then and in that case the judgment should have protected the interests of the appellants Nieto, and should have been to the effect that the respondent Cunningham had no title whatever to the premises in dispute.
We do not need to consider any of the questions raised as to the validity of the tax deed delivered to the Cunninghams in 1914, because if the deed to the Empire Securities Company is valid, it cuts out all prior claims to the property.
While it is claimed by the appellants that no judgment should have been entered in favor of the respondent Cunningham quieting the title as against the appellants, for the reason that the Cunninghams never served any pleadings upon the appellants or in any way indicated that they claimed title as against the appellants, and also that the tax deed to the Cunninghams is void, no particular consideration needs to be given to these points in this opinion by reason of our views to be hereafter stated relative to the deed made by the city treasurer of Los Angeles to the Empire Securities Company.
The attack upon this deed made by the respondent, and which appears to have been successful in the court below, is that there is no grantee named in the instrument. We will quote the language of the respondent; it is: "There are numerous technical statutory reasons why the assessment deed under which Tasker and Nietos claim title, is void on its face, as set forth in the case of Chapman v. Jocelyn, 182 Cal. 298, 187 P. 962, and it should not have been admitted, but its greatest failure is that it has no grantee; attempts to convey to no one." As respondent specifies only one failure in the appellants’ chain of title, we do not feel called upon to examine the challenged deed only so far as the alleged failure is set forth.
The granting clause of the deed to the Empire Securities Company is in the following words: "Now, Therefore, this indenture witnesseth: That for and in consideration of the sum of $78.90 in hand paid to N.T. Powell, said City Treasurer, the receipt whereof is hereby acknowledged, I, N.T. Powell, City Treasurer of the City of Los Angeles, have granted, bargained, sold, conveyed and confirmed, and do by these presents grant, bargain, sell, convey and confirm unto the said _______ and to his heirs and assigns forever, the property herein referred to." (Then follows a description of the property involved in this action.)
It is this portion of the instrument of conveyance urged upon our attention as establishing its invalidity. In relying upon this portion of the deed of conveyance to the Empire Securities Company, it appears that not only the respondent, but the appellants and the trial court entirely overlooked the fact that there is a clear distinction between a writing in which no grantee is named and an instrument of conveyance in which no grantee’s name appears in the granting clause. In the former case the writing does not rise to the dignity of a conveyance of real estate. On the other hand, the law is well settled that it is not necessary that the name of the grantee appear in the granting clause. If the name of the grantee elsewhere appears, the conveyance is good. No California case has ever held that a deed is invalid because the name of the grantee does not appear in the granting clause. On the contrary, the authorities are legion that, if the name of the grantee elsewhere appears in the instrument, the fact that the name is wanting in the granting clause is wholly immaterial. A few of these cases we will hereafter cite.
First, we will examine the California cases which apparently have led all parties into error in this cause. The first case cited in support of the theory that the grantee’s name must appear in the granting clause is that of Wilson v. White, 84 Cal. 239, 24 P. 114, 115. That case, however, did not consider the question here presented, as the issue there was as to the validity of a deed naming a fictitious grantee. The court there said: "It is involved in the very inception of a deed that there must be a grantee, to whom delivery is made, and in whom the title can vest. If there be no grantee, and the deed is to a mere fictitious name, it is obvious that it is a nullity. But if there be a person in existence, and identified, and delivery is made to him, it makes no difference by what name he is called." This case did not consider the particular place in the instrument where the grantee’s name must appear.
In Wunderlin v. Cadogan, 75 Cal. 617, 17 P. 713, the name of the grantee claiming the property did not anywhere appear in the instrument. The court there said: "A deed which does not contain the name of the grantee is void as a conveyance." This, of course, is a clear statement of the law, but is not a statement that the grantee’s name must appear in any particular portion of the conveyance.
In Winter v. Stock, 29 Cal. 407, 89 Am.Dec. 57, the question simply was in whom a deed of land made to L.B. & Company, vested the property, and it was held that such an instrument conveyed the property to L.B. alone.
In Harris v. Barlow, 180 Cal. 142, 179 P. 682, a writing purporting to be a deed was executed in blank, the party of the second part was not named, and the name of no one appeared in the instrument as the grantee. It appears that the person owning the property executed an instrument in blank, passed it to a second party with oral instructions to insert the name of the purchaser, who would become the grantee. The conclusion necessarily followed that the writing did not constitute a deed of conveyance.
The text referred to in 9 California Jurisprudence, page 121, § 24, sets forth only the general rule without regard to its application to particular cases, to wit: "It is involved in the very conception of a deed that there must be a grantee to whom delivery is made, and in whom title can vest. Hence, a deed which fails to name a grantee, or a grantee who may be ascertained, *** is a nullity." Citing the authorities which we have above mentioned. It will thus be seen that none of the cases relied upon as establishing the invalidity of the challenged deed support any such contention. Not one of them indicates that the name of the grantee must necessarily appear in the granting clause. As applied to the cases under consideration, they state the law. As applied to the circumstances involved in this action, they are wholly inapplicable.
Before referring to the cases which show conclusively that if the grantee’s name appears anywhere in the instrument of conveyance, or in such a manner as to indicate who the grantee is, the conveyance is valid, even though the name of the grantee does not appear in the granting clause, we will call attention to the challenged deed. A reading of this instrument shows that the grantee’s name appears five times in the instrument. In the very beginning of the instrument we find the following: "This indenture made and entered into this 26th day of December, in the year of our Lord, one thousand nine hundred and sixteen, by and between N.T. Powell, City Treasurer of the City of Los Angeles, party of the first part, and Empire Securities Company of the City of Los Angeles, California, the party of the second part." Further on: "And Whereas, the said property hereinbefore described was by C.H. Hance, the then City Treasurer of the City of Los Angeles, in accordance with law and in pursuance of said notice, offered for sale at public auction on the 16th day of October, 1915, at the office of the City Treasurer, City Hall, to pay the amount of said bond due and unpaid, including costs and charges due thereon, and that at said sale the Empire Securities Company was the bidder," etc. (setting forth the amount of the bid). And further on in the same instrument: "Hence, as City Treasurer of the City of Los Angeles, struck off to the Empire Securities Company the property above described, who then and there paid therefor the said sum of Sixty-nine and 97/100 dollars; " being the amount of the unpaid portion of the bond, interest charges, etc. Again: "And Whereas, on the 18th day of December, 1916, the Empire Securities Company, the purchaser of said property at said sale, filed an affidavit in the office of the said City Treasurer," etc. And, finally, after setting forth the granting clause to which we have referred, the habendum clause of the instrument reads as follows: "To have and to hold, all and singular the hereinbefore and last-mentioned and described premises, together with the appurtenances unto said, the Empire Securities Company, party of the second part," etc. In five successive instances it thus appears that the grantee has been named.
There is no dissenting opinion in the long line of cases having to do with the naming of the grantee, which holds that a deed is sufficient in naming a grantee if his name appears as shown by the challenged conveyance.
In the case of Berry v. Billings, 44 Me. 416, 69 Am.Dec. 107, in considering a deed where the grantee’s name appeared in the habendum clause, and not in the granting clause, the Supreme Court of Maine held that a "deed of land ‘to have and to hold’ to B and his heirs, is good, although the grantee is not named in the premises." The word "premises" is then defined as that portion of the instrument which would include the granting clause.
In Henniges v. Paschke, 9 N.D. 489, 84 N.W. 350, 81 Am.St.Rep. 588, the Supreme Court of North Dakota, having under consideration an instrument where the granting clause failed to name the grantee, held as follows: "A deed of real estate, to be effective as a conveyance, must designate a grantee; but it is not indispensable that the grantee’s name should be stated, if the instrument so identifies him that there is no reasonable doubt respecting the party constituted grantee. Hence, a deed which recites that the consideration was paid by a named person, sufficiently designates him as the grantee, and is valid."
In Devlin on Real Estate (3d Ed.) volume 1, § 219, the rule we are considering is thus stated: "Where there is no repugnance between the granting clause and the habendum, a party not named in the former may take under the deed if named in the latter. Thus, there is no repugnance between the two clauses when the party who is to take is not named in the grant, but may be ascertained from the habendum."
In Jones on Real Estate, § 224, the same rule is thus stated: "It is not essential that the grantee should be formally named in the granting part of the deed; it is only necessary that taking the whole instrument together, there is no uncertainty as to the grantee. If the instrument shows who he is; if it designates him and so identifies him that there is no reasonable doubt respecting the party constituted grantee, it is not a vital consequence that the matter which establishes his identity is not in the common or best form, or in the usual or most appropriate position in the instrument."
In the case of Weekley v. Weekley, 75 W.Va. 280, 83 S.E. 1005, the Supreme Court of Appeals of West Virginia upheld an instrument as a deed of conveyance which failed to name the grantee in the granting clause, but otherwise designated the grantee so as to leave no doubt as to the person to whom the intended grant was made. The opinion in that case sets forth a rule of construction which is applicable here: "The modern and authoritative rule for construing deeds requires enforcement of the grantor’s intention, when manifested by the plain import of the language used; and, to ascertain such intention, the instrument must be examined and considered in its entirety, and not otherwise. If, when so examined and considered, such intention appears, effect must be given to it," etc.
In Vineyard v. O’Connor, 90 Tex. 59, 36 S.W. 424, 425, the Supreme Court of Texas, having the same question before it, used the following language: "It is not indispensable that the name of the grantee, if given, should be inserted in the premises. If the instrument shows who he is,— if it designates him, and so identifies him that there is no reasonable doubt respecting the party constituted grantee,— it is not a vital consequence that the matter which establishes his identity is not in the common or best form," etc. The opinion in that case cites a number of authorities to the effect that, even though the deed is not in the best form, if the grantee’s name appears, and the party to whom the conveyance was intended to be made is shown, without reasonable doubt, it is immaterial where the grantee’s name appears.
In Campbell v. Everhart, 139 N.C. 503, 52 S.E. 201, 203, the Supreme Court of North Carolina, having before it an instrument where the grantee’s name appeared, but not in the granting clause, thus expressed its views: "It has always been true, both in the case of deeds and of wills, that if the instrument shows who the grantee is, or if it designates and so describes him that there is no uncertainty respecting the party who is intended to take under the will or deed, it is not a vital consequence that the matter which establishes his identity is not in the common or best form." Citing the authorities to which we have heretofore referred, and also 3 Washburn on Real Property, 282.
In the case of Snow v. Gallup, 57 Tex.Civ.App. 572, 123 S.W. 222, 228, the Court of Civil Appeals of Texas, considering the subject of where a grantee’s name should appear, followed the law as set forth in the cases which we have cited. As the deed in the Snow Case appears in the opinion, we quote it as showing how a grantee may be ascertained. We take the following from the opinion: "It is urged by the tenth assignment that the deed claimed by defendant to be from Cherry to Farrier, under which defendant claims, is void because it does not name the grantee. The instrument referred to is as follows: ‘The State of Texas, County of Liberty. Know all men by these presents that I, Wm. Cherry, of aforesaid county and state, for and in consideration of $600 to me in hand paid, the receipt whereof is hereby acknowledged by H.M. Farrier of aforesaid state and county, do by these presents bargain, sell and guarantee the title of a certain parcel or tract of land being and situate in Tyler county [here follows a description of the land]. I hereby guarantee and forever defend against all claims whomsoever to the said H.M. Farrier, his heirs and assigns forever.’ " The court further said that, although not artistically drawn, the instrument was valid. Farrier was named in the habendum clause as the one to hold the property.
In 18 C.J., page 174, § 56, the rule in its various applications to the naming of a grantee, is thus stated: "A deed in order to pass title must designate the grantee without uncertainty, although it is not necessary that the grantee be described by name if otherwise identified or made susceptible of identification by proof aliunde. Further, it is sufficient if the identity of the grantee is made certain by the instrument as a whole, although he is not named in the premises. Where, however, a grantee is named either in the granting clause or in the premises generally, another person who is named in the habendum clause cannot take as a grantee, except in the case of the creation of an estate by remainder, or in the case of a declaration of a use. This rule applies as well to other parts of the instrument as to the habendum where the granting clause expressly names the grantee. These rules, however, do not apply where no grantee is named in the premises. If the deed in its entirety distinguishes the grantee from the rest of the world, it is sufficient. A latent ambiguity as to the name of the grantee may be explained by parol." A reference to the footnotes cited in the text just referred to shows that a list of cases numbering about twenty are cited upholding the rule as stated by the text-writer. It would unnecessarily lengthen this opinion to refer to the cases upon which the rule just quoted from Corpus Juris is based. It is sufficient to say that the authorities are all one way, and the conclusion is unescapable that the deed under consideration sufficiently names and identifies the grantee. And the conclusion is also unavoidable that the findings of the court in this case are not supported by the testimony. We may also add that finding No. 4 is void for uncertainty.
As presented to us the record shows no defect in the appellant’s title, the parties shown to have had actual possession of the premises for over twenty years.
The judgment of the trial court is reversed.
We concur: FINCH, P.J.; THOMPSON, J.