Wittenbrock v. Cass

Citations

• 110 Cal. 1
• 42 P. 300
• 1895 Cal. LEXIS 1006

Syllabus

<p>Trust—Statute of Frauds—Verbal Agreement.—A verbal agreement between a mother and son that he and his family should live with her on premises which she had bought and paid for with her own money, and that he should have the title thereto after her death, provided that he would pay the taxes and insurance on the property and keep the house in good repair, and would furnish her with all necessary care and with hoard and lodging during her life, does not, upon the performance of the conditions, raise a constructive trust which is excepted from the rule that a trust in realty can only he created by an instrument in writing, and the alleged verbal agreement cannot be enforced as against a mort, gage executed by the mother for money loaned, although the mortgagee had notice of the verbal agreement.</p> <p>Id.—Deposit of Deed in Escrow—Parol Evidence of Conditions.—In an action to foreclose the mortgage to which the son was a party, evidence is admissible to show that the mother executed to him a deed of the property prior to the mortgage, and placed it in the hands of another person as a depositary, to be delivered after her death, and that the mortgagee had notice of the execution and deposit of the deed at the time he received his mortgage; and parol evidence is admissible to show all the -facts and conditions upon which the deed was deposited.</p> <p>Id,—Validity of Deed Delivered in Escrow—Intention of Grantor— Question of Fact.—The essential requisite to the validity of a deed transferred in escrow under such circumstances is, that when placed in the hands of a third party it has passed beyond the power of the grantor for all time, and that question is to be determined by the grantor’s intention in the matter, and is a question of fact to he solved by the light of all the circumstances surrounding the transaction.</p>