¶1I concur in the judgment of reversal, because, after a more exhaustive examination of the evidence, I think that it does not support the findings as to the circumstances under which the deeds to plaintiff from the mother were made. I do not think, however, that the findings (that prolific source of artificial and needless troubles) are themselves insufficient to support the judgment. They find the real facts as alleged in the answer; and if there is any difference between the answer and the findings, it is a difference only as to legal effects. But I dissent *478from that part of the prevailing opinion which is to the point (as I understand it) that when one member of a family, being sick, and apprehending immediate death, makes a conveyance of his real property to another member of the family, with the intention, and upon the understanding of both, that it is not to be operative in the event of the recovery of the grantor, if the latter passes the deed over into the hands of the grantee, then the latter has the title irrevocably; and, although the grantor recover his health immediately, he has, and can assert, no further interest, legal or equitable, in the land described in the conveyance, upon the ground that the terms of a written instrument cannot be varied by parol evidence. I do not think that what Mr. Devlin says in his chapter on escrows has any applicability to the question here involved. As to the point under discussion, I think, in the first place, that the correct legal view is, that, in contemplation of law, there was no delivery at all; and, in the second place, if it be assumed that there was a delivery, then, upon the recovery of the sick grantor, the grantee holds the legal title in trust for the grantor, who has the equitable estate. I do not see how such case can, in principle, be distinguished from Brison v. Brison, 75 Cal. 525. I agree with the opinion on the point that a judgment may be taken against a surety on an appeal bond (under our code) without notice. My views on that matter were expressed in my opinion on the former hearing.
86 Cal. 471
Mowry v. Heney
Decided November 26, 1890
California Supreme Court · decided 1890-11-26
<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.</p>
Relies on Brison v. Brison
Good law ✅— No negative treatment on recordhow we know
Decided 1890-11-26
How this case has been cited
Cited by 44 later decisions — most recently August 1987 · most notably Hotaling v. Hotaling (1924), Bias v. Reed (1914)
40 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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