Opinion
Page __
__ Cal.App.2d __ 229 P.2d 364 TYLER v. LARSON. Civ. 17869. California Court of Appeals, Second District, Third Division April 10, 1951.Rehearing Granted May 4, 1951.
Subsequent opinion 235 P.2d 39.
[229 P.2d 365] Robert M. Wiley, Hemet, for appellant.
Hobart & Hobart and Holmes E. Hobart, all of Los Angeles, for respondent.
VALLEE, Justice.
Appeal on the judgment roll from a judgment which reforms a deed from one in joint tenancy to one as tenants in common.
The complaint alleged, and the answer admitted, that on November 30, 1945, decedent Jennie Pover was the sole owner of a parcel of realty and the furnishings therein, that she had a substantial bank account, and was the recipient of an old age pension. These allegations must be taken as true and as having been found by the trial court. Code Civ.Proc. § 462; In re Estate of Cover, 188 Cal. 133, 147, 204 P. 583.
Ellen R. Larson, appellant, is the youngest daughter of Jennie Pover. On November 30, 1945, Jennie executed a deed conveying the parcel of realty to herself and Ellen as joint tenants. The deed was recorded the same day. From November 1, 1945, or prior thereto, until the death of Jennie, a confidential relation existed between Jennie and Ellen. Jennie was competent and of sound mind at the time she executed the deed. There was no fraud, misrepresentation, duress, or undue influence in connection with the execution of the deed. Ellen did not give Jennie any consideration for the deed. Jennie died on February 1, 1947.
The court found that at the time Jennie executed the deed she believed and understood that it would have the effect of giving Ellen only a half interest in the property, and that she would retain a half interest, and that her intent was to make Ellen a tenant in common and not a joint tenant. The court further found 'that after the execution of said deed on November 30, 1945, that the decedent on several occasions in the presence of the defendant, Ellen R. Larson, referred to her property and expressed her desire and intention to make a will disposing of her estate; that the said Ellen R. Larson at no time asserted or claimed in the presence of said decedent and that decedent had disposed of all her real property and had no real property to dispose of by will, if she did not survive Ellen R. Larson; that the only real property owned by the decedent during all of this period of time was the real property herein described.' The judgment strikes the words 'as joint tenants' from the deed and substitutes the words 'as tenants in common.' Ellen appeals.
The assignment of error is that the findings do not support the judgment. As this is an appeal on the judgment roll, we must take as true the facts admitted by the pleadings and those found. The only conclusion that can be drawn from the findings is that the deed, made freely and voluntarily, was, by mistake on the part of Jennie alone, made to herself and Ellen 'as [229 P.2d 366] joint tenants.' Although an amendment to the complaint filed during the trial alleged that Ellen 'knew that the decedent at the time of the execution of said deed did not intend to have said deed convey other than an undivided one-half interest in the property,' the court did not so find. There is no finding that Ellen had knowledge of any facts that would have led her to believe or suspect that her mother was laboring under a mistake. There is no finding from which it can be implied that Ellen knew or suspected anything other than that her mother intended to convey the property in joint tenancy. In sum, there is no finding that Ellen knew of or suspected her mother's mistake at the time of the execution of the deed.
Civil Code section 3399 provides: 'When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised, on the application of a party aggrieved, so as to express that intention'. (Italics added.) A mistake of one of the parties alone is not sufficient ground for reformation. Baines v. Zuieback, 84 Cal.App.2d 483, 489, 191 P.2d 67; cf. Socol v. King, 36 Cal.2d 342, 223 P.2d 627. Every presumption favors the view that a written instrument expresses the true intent and meaning of the parties. Moore v. Vandermast, Inc., 19 Cal.2d 94, 98, 119 P.2d 129; Oakdale Mercantile Co. v. Baer, 128 Cal.App. 350, 354, 17 P.2d 779; California Trust Co. v. Cohn, 9 Cal.App.2d 33, 40, 48 P.2d 744. This is particularly true where, as here, one of the parties is dead and the plaintiff necessarily must rely on the weakest and most unsatisfactory class of evidence--recollection of declarations of a deceased person--to establish her state of mind. Khoury v. Barham, 85 Cal.App.2d 202, 211, 192 P.2d 823.
We do not understand respondent to seriously contend that Ellen knew or suspected that Jennie, at the time the deed was executed, 'did not intend to have' the deed convey other than an undivided half interest. His argument seems to be that Ellen is estopped from asserting that the deed did not have the legal effect intended by Jennie because the court found 1) that after the execution of the deed, Jennie, on several occasions in the presence of Ellen, referred to her property and 'expressed her desire and intention to make a will disposing of her estate'; 2) that Ellen did not assert or claim in her presence that she 'had disposed of all her real property and had no real property to dispose of by will'; 3) that the only real property owned by Jennie was that described in the deed; and 4) that a confidential relation existed between them. The argument seems to be that under the facts thus found there was a duty upon Ellen to tell Jennie that she (Jennie) had made a mistake. There is no finding that Ellen knew or suspected, at the time the declarations were made, that Jennie intended a tenancy in common and not a joint tenancy 'at the time' the deed was executed. It cannot be inferred that Ellen 'at the time' the deed was executed knew or suspected that Jennie at that time intended a tenancy in common and not a joint tenancy from the mere fact that Jennie, after the deed was executed, said in the presence of Ellen that she intended to make a will disposing of her estate. As we have said, Jennie had property other than that described in the deed, which was subject to disposition by will. Jennie's statements that she intended to make a will disposing of her estate cannot be said to have led Ellen to suspect that Jennie had made a mistake in making the deed read 'as joint tenants.' Jennie may well have referred to the making of a will to dispose of her other property. The facts found do not show a duty on Ellen to speak, an essential element of estoppel from silence. People v. Ocean Shore Railroad, 32 Cal.2d 406, 421, 196 P.2d 570, 6 A.L.R.2d 1179.
A finding that Ellen knew or suspected at the time the deed was executed that Jennie intended a tenancy in common and not a joint tenancy was essential to reformation of the deed. Its absence is fatal. In view of the fact that the complaint [229 P.2d 367] alleged that Ellen so knew, and the failure of the court to so find, would seem to be conclusive that the court did not intend to so find. We hold that the findings are insufficient to support the judgment.
Reversed.
SHINN, P. J., and WOOD, J. concur.