Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. VP011394, Robert S. Wada, Judge.
Wellington Y. Kwan for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
CROSKEY, J.
Several years before he died, a father signed a grant deed placing title to his home in the names of himself and his daughter, as joint tenants. The deed was never recorded and the father kept it for safekeeping. After his death, the deed was discovered, and the daughter filed a petition in probate for title to the house to be transferred to her. A bench trial was held, in which the sole issue was whether the deed had been “delivered” to the daughter, within the meaning of Civil Code section 1054. The trial court concluded that the deed had been effectively delivered, and ordered the property transferred to the daughter, as the surviving joint tenant. A son appeals, contending that the evidence is insufficient to support the finding of delivery as a matter of law. We disagree and affirm.
The order directing conveyance of the property is an appealable order. (Prob. Code, § 1300, subd. (a).)
DISCUSSION
Civil Code section 1054 provides that a grant of property “takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor.” To constitute a valid delivery, there must be physical delivery of the deed, acceptance by the grantee, and an intention on the part of the grantor to immediately transfer title. (Gonzales v. Gonzales (1968) 267 Cal.App.2d 428, 435.) The key issue is the grantor’s intent. (Perry v. Wallner (1962) 206 Cal.App.2d 218, 221; Oakland Bank of Commerce v. Hayes (1958) 159 Cal.App.2d 257, 262.) If the grantor intends to not reserve any power to recall or modify the deed, the deed is validly delivered. If, however, the grantor intends to retain control of the deed or the property until the grantor’s death, with the intent that the grantee take title at the grantor’s death only if the grantor has not recalled the deed or made other disposition of the property, there is no delivery. (Manwell v. Board of Home Missions and Church Extension (1932) 122 Cal.App. 599, 606-607.) If the grantor hands the deed to the grantee and says the property now belongs to the grantee, with the intent to irrevocably convey title, delivery is sufficient and the property is conveyed, even if the grantor changes his or her mind moments later. (Stone v. Daily (1919) 181 Cal. 571, 575.) “In order to effect the delivery of a deed of conveyance to the grantee it is not necessary under all circumstances to pass the instrument of conveyance over to the grantee. Whether a deed was delivered is a question of intent which may be inferred from words spoken or acts done or both.” (Hill v. Donnelly (1942) 56 Cal.App.2d 387, 392.)
The failure to record a deed prior to the grantor’s death does not preclude a finding of delivery; it is simply one circumstance to be taken into account in determining whether the grantor intended the deed to be presently operative. (Gonzales v. Gonzales, supra, 267 Cal.App.2d at p. 436 & fn. 7.) Nor is a finding of effective delivery precluded if, after the deed was initially given to the grantee, the grantor retained the deed for safekeeping. (Stone v. Daily, supra, 181 Cal. at p. 581; Gonzales v. Gonzales, supra, 267 Cal.App.2d at pp. 436-437.) That the grantor retains possession of the deed itself is immaterial when there is an intent that the deed be legally operative. (Drummond v. Drummond (1940) 39 Cal.App.2d 418, 423-424.) However, continued possession of the deed by the grantor, standing alone, can support a conclusion of nondelivery. (Miller v. Jansen (1943) 21 Cal.2d 473, 477-478.)
If delivery is otherwise established, the grantee’s title is not vitiated by the grantor’s collection of rent on the property or continued residence on the property. (Knudson v. Adams (1934) 137 Cal.App. 261, 269; Drummond v. Drummond, supra, 39 Cal.App.2d at p. 424). Although the grantor’s continued exercise of dominion over the property will not negate delivery as a matter of law, it is a circumstance to be considered in determining whether the deed was delivered. (Meyer v. Wall (1969) 270 Cal.App.2d 24, 29.)
The determination of whether the grantor intended to be immediately divested of title, and therefore delivered the deed, is a question of fact to be determined by the trial court from a consideration of all the evidence. (Perry v. Wallner, supra, 206 Cal.App.2d at p. 221.) “Thus, delivery or nondelivery of a deed is a question of fact to be determined by the surrounding circumstances of the transaction. Where there is substantial evidence, or where an inference or presumption may be drawn from the evidence to sustain the court’s finding of delivery or nondelivery, the finding will not be disturbed on appeal.” (Ibid.)
In this case, there was substantial evidence of the following: The property, a house in Whittier, was, prior to 1999, held in joint tenancy by the father, Porfirio Alberto Gallegos, and his two daughters, Sofia and Gloria. In 1999, Sofia married, and title was transferred back to the father alone. The father indicated to Gloria that he would place her back on title at a later date. In 2005, the father telephoned Gloria and told her to come to the house; he had important papers for her to sign. When Gloria arrived, the father was present with a notary. He told Gloria that he was putting her back on the deed to the house. He showed her a grant deed, placing the property in both their names as joint tenants. He signed the deed, then asked Gloria to sign a preliminary change of ownership report, which she did. Both documents were signed on August 26, 2005. Gloria’s father told her that her name was “back on the deed to the house.” He kept the papers, telling Gloria that he would take care of everything.
Gloria’s father continued to live on the property. His son, Alberto, also lived there, as did two renters. The father continued to collect the rent; he deposited the rental income in a joint checking account he shared with Gloria. Gloria sometimes deposited her own money into the joint checking account, and considered the funds in the account to belong to both of them. Prior to 1999, and after 2005, Gloria, at her father’s direction, received the income tax benefits from owning the property.
Shortly before the father’s death, he reminded Sofia, “when I die, you know this house goes to Gloria.” Sofia told him that she could not control what happens; her father said, “Don’t worry, I have it all taken care of.” The father’s ex-wife also testified that he had indicated that Gloria would get everything upon his death.
When the father died, Gloria believed that she was already on record title to the house. She was surprised to discover the deed had never been recorded. When her sister-in-law eventually found the original deed in the father’s documents, Gloria filed a petition for the house to be conveyed to her.
While there was evidence to the contrary, the above facts, supported by the testimony of Gloria, Sofia, and the father’s ex-wife, are sufficient to justify the trial court’s finding of delivery of the joint tenancy deed to Gloria. On August 26, 2005, the father executed the grant deed with the intent that title immediately be conveyed to himself and Gloria as joint tenants. This is demonstrated by the fact that he told Gloria that she was “back on the deed to the house.” The conclusion is reinforced by the facts that: (1) rental income from the property was placed in a checking account the father shared with Gloria; and (2) he directed her to take advantage of the income tax benefits associated with ownership of the house. The evidence demonstrates that the father believed that, on August 26, 2005, title to the house passed to himself and Gloria as joint tenants. As such, the deed was validly delivered. That the deed was not recorded and the father kept the deed for safekeeping do not undermine the valid delivery.
In his brief on appeal, the son, Alberto, argues no less than four times that the failure to record the deed meant that there was no delivery as the father could revoke it at any time. As stated above, a lack of recordation is not the determinative factor; the grantor’s intent is.
DISPOSITION
The judgment is affirmed. Respondent Gloria Gallegos shall recover her costs on appeal.
We Concur: KLEIN, P. J., KITCHING, J.