EDNAH W. MARPLE, Respondent, v. C. E. JACKSON, Sheriff, etc., Defendant; FREDERICKA L. BLACKBURN et al., Appellants, 184 Cal. 411

LAWLOR, J. This is an appeal by the defendants, Fredericka L. Blackburn and Oliver V. Blackburn, her husband, from a judgment in favor of the plaintiff, Ednah W. Marple, in an action to enjoin the sale under execution of certain real estate situated in Orange County, alleged to be the separate property of the plaintiff. The record on appeal is presented in typewriting. On April 20, 1916, Mrs. Blackburn secured a judgment in the superior court of Los Angeles County against plaintiff’s husband, R. S. Marple, in the sum of $1,028.95. On July 6, 1917, execution was issued on the judgment, directing C. E.

Jackson, sheriff of Orange County, to levy execution upon these premises. It is the sale of the property under this execution which respondent here seeks to enjoin. She bases her claim of title on a deed from R. S. Marple to her, which recites that it is made in consideration of love and affection. This deed bears the date, May 12, 1906, and was acknowledged on that day, but was not recorded until February 14, 1916. Appellants denied that the premises were the separate property of respondent, and alleged that they were the separate property of R. S.

Marple, basing their claim on the grounds (1) that the deed from Marple to respondent was void for want of delivery, and (2) that, as a voluntary transfer made without valuable consideration, it was made by Marple in contemplation of insolvency and with the intention of defrauding his creditors.

The cause was tried by the court which found inter alia that all the allegations of the complaint were true, and, as heretofore noted, rendered judgment in respondent’s favor, adjudging that the premises were her separate property and restraining appellants from proceeding with the levy of the execution" upon said premises. 1. At the trial respondent introduced in evidence the gift deed and rested. Appellants thereupon called respondent and later her husband as witnesses.

After the latter had answered some preliminary questions respondent objected to his examination regarding either the delivery of the deed or the surroundng circumstances on the ground that, under subdivision 1 of

section 1881 of the Code of Civil Procedure, “a husband cannot testify against his wife.” The objection was sustained, and appellants’ first contention is that this ruling was erroneous. Subdivision 1 of said

section reads in part: “A husband cannot -be examined for or against his wife without her consent ; nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage. ’ ’ In People v: Langtree, 64 Cal. 256, [30 Pac. 813], the defendant was charged with burglary. In discussing the question whether the court erred in excluding the testimony of a Mrs.

Brandon, which testimony tended to establish the innocence of the defendant and the guilt of the witness’ husband, it was said, after quoting the above code section: “This is the provision of the code upon the subject, and it must prevail. ... ‘A wife cannot be examined, for or against her husband, without his consent.’ ... If examined in an action or proceeding to which he was a party, she would undoubtedly be examined for or against him. Any witness examined in an action or proceeding is examined for one party and against the other therein. ...

If the husband of this witness had been a party to the action on trial, she could not have been examined at all without his consent. ’ ’ We quote from Fitzgerald v. Livermore, 2 Cal. Unrep. 744, [13 Pac. 167] : “The wife of the plaintiff was called as a witness for the defendant and gave testimony against the plaintiff without his consent. Her testimony was material. . . . We think the evidence . . . was incompetent.” In our opinion there was no error in the ruling complained of. While it is true that, as was said in People v.

Langtree, supra, quoting from Schouler on Husband and Wife, 85, “the prevailing tendency ... is to regard the domestic confidence or the ties of a spouse as of little consequence compared with the public convenience of extending the means of ascertaining the truth,” yet, under the unequivocal language of the first sentence of the code section, it is clear that, without respondent’s consent, Marple was not a competent witness. For this reason it will be unnecessary to consider whether the evidence of the circumstances surrounding the delivery of the deed falls within the privilege as to communications.

The testimony was inadmissible, not because the communication was privileged, but because Marple was incompetent to testify against his wife—a party to the action. Poulson v. Stanley, 122 Cal. 655, [68 Am. St. Rep. 73, 55 Pac. 605]; People v. Loper, 159 Cal. 6, 13, [Ann. Cas. 1912B, 1193, 112 Pac. 720], and Savings Union Bank etc. Co. v. Crowley, 176 Cal. 543, [169 Pac. 67], are cited by appellants in support of their contention.

But in each of those cases the question was as to the nature of the particular communications with regard to which testimony was sought to be elicited, and in none of them was the spouse, for or against whom the testimony was offered, a party. Mitchell v. Superior Court, 163 Cal. 423, 426, [125 Pac. 1061], is also cited by appellants on this point.

That case, however, was a contempt proceeding which, as the court said, was in its nature “ancillary to the divorce action [previously instituted 'by the wife] and subject to the rules with reference to the competency of witnesses in that cause.”' It was held, therefore, that, inasmuch as the wife was a competent witness against the husband in the divorce action, it was proper to allow her, upon her own affidavit, to institute contempt proceedings against him on account of his failure to comply with the court’s direction to pay her alimony. The case is plainly distinguishable from the one at bar. 2.

We shall next consider appellants’ contention that “the facts clearly show that there was never any delivery of the deed.” It is alleged in the complaint that respondent was the owner of the premises by virtue of the deed of May 12, 1906. From the finding that all of the allegations of the complaint are true, it must be implied that the court found the deed was duly delivered. The appellants question the sufficiency of the evidence to support the finding. At the outset it is to be observed that the deed was duly executed and acknowledged, and hence, under

section 1055 of the Civil Code, it must be presumed prima facie to have been duly delivered on the date it bears (Branson v. Caruthers, 49 Cal. 374, 380). The question then becomes, Was this presumption overcome by appellants? The respondent testified that she could not remember the precise date of the delivery of the deed, but that it was “twelve or fourteen years ago”; that there were present at the time of the delivery, besides herself and her husband, a Mr. and Mrs. Sanborn, a Miss Hyatt, and Charles D.

Ballard, a notary public; that prior to that occasion she had loaned her husband considerable sums in return for which he had promised “to deed me property ... as soon as he got hold of some”; that she knew nothing about the preparation of the instrument itself; that she “couldn’t just remember,” but thought she had received the deed from Ballard and had then laid it “up on the bookcase”; that the next morning she and her husband took the deed and deposited it in a safe deposit box; that the key to this box was sometimes in her husband’s and sometimes in her own custody; that they both frequently opened the box and examined its contents, but that she was always accompanied by her husband on such occasions; that, just before the trial of the action in which appellants secured the judgment which, according to the complaint, they threaten to enforce against these premises, she and her husband took the deed from the box and she personally filed it for record on February 14, 1916; that the reason why the deed was not recorded prior to that time was that when it was executed her husband had expressed the desire not to have it recorded, saying: “I don’t like to have it appear I haven’t anything in my own name”; that it was after consulting an attorney that she did record the deed; and that at all times her husband had the management and control of the property.

Ballard, testifying for respondent, stated that he had prepared the deed at Mr.

Marple’s request, and, as to the circumstances surrounding the alleged delivery, that the only thing he could recall was “that my signature over here at the left of the signature of the grantor is a signal to me that this deed was delivered to the grantee in my presence or by me, because I never put my signature under the insignia ‘Signed, sealed and delivered,’ unless it was either delivered by me ... or by the grantor in my presence.” There were introduced in evidence an assessment “list” containing Marple’s sworn statement that he was the owner of these premises, and two mortgages on the property, each executed by respondent and her husband.

It is declared in Devlin on Deeds,

section 284, that “where a grantor executed a deed ... to his wife, the fact that she placed the deed after delivery where her husband equally with herself could have access to it does not change its legal effect as a conveyance.” And it was held in Lewis v. Burns, 122 Cal. 358, [55 Pac. 132]: “The presumption is that a deed duly executed was delivered at its date; and the fact that it was not recorded until after the death of the grantor does not render the deed insufficient evidence of its delivery at its date.” Stone v.

Daily, 181 Cal. 571, [185 Pac. 662, 665], was a case where the question before the court was as to the delivery or nondelivery of two deeds. We quote: “The retaking of possession and subsequent retention of the instrument by Mrs. Daily is not conclusive, even though it appear that it was not an afterthought but contemplated by her from the beginning. It is a very strong circumstance indicating that she did not intend such delivery as would put the deed beyond her control and power of recall, and would ordinarily be controlling.

But the final question always is, What was the intent with which the formality of a delivery was gone through with?

And if it appear indubitably that it was gone through with for the purpose of conveying the property then and there, and that the grantor desired thereafter to retain, and did retain the instrument, not that she might control or suspend its taking effect, but for the purposes of custody and safekeeping merely, as for instance to insure its not being recorded because she did not wish her husband to know of it, any contrary inference as to her intent arising from her continued possession of the instrument is of necessity overcome, and the fact of such continued possession becomes immaterial. . . . “The case, then, is one where the formality of a delivery is gone through with with the intent of making an immediate effective conveyance, but after delivery the grantor retains possession of the deed for purposes of safekeeping.

That such a delivery is valid and is not affected by the fact that the instrument subsequently remains in the possession of the grantor is well established. ...” In the light of these authorities we think it clear that the finding must be upheld. As has been shown, the production of the deed raised a disputable presumption that it had been duly delivered. It is true the grantor continued to manage and control the property and that at his request the deed was not recorded. But we have respondent’s statement that she had received the deed.

It may well be the court concluded, from Marple’s request not to record the deed, that both parties intended that title should pass and that they desired not to make known the transaction because it might injure Marple’s credit. The court may also have inferred that the placing of the instrument in the deposit box was for safekeeping. And, under the ruling in Bias v.

Reed, 169 Cal. 33, 42, [145 Pac. 516], “the force of an executed conveyance is not to be impaired by subsequent acts or declarations of the grantor.” In any event, we are not prepared to hold the court was not justified in finding that appellants had not overcome the presumption in favor of delivery. Appellants’ contention is without merit. 3. Nor, in our opinion, can appellants’ contention that the transaction involving the execution and delivery of the deed was fraudulent as to creditors be sustained.

On this point the court found it was not trae that, as alleged in the answer, the transaction was tainted with fraud. As already stated, respondent testified that it was in return for loans which she had made to her husband that the latter executed and delivered this deed. It cannot be held that appellants have advanced any sums in reliance upon the facts that the record title stood in the name of Marple, or that he continued to manage and control the property. Nor is there any showing that the grantor was insolvent or even financially embarrassed at the time the deed was executed and delivered.

Appellants did not secure their judgment against Marple until after the deed had been recorded.

It should be noted, moreover, that the action in which appellants’ judgmeat was recovered was an action, not upon any contractual obligation, but for personal injuries sustained through having been struck by Marple’s automobile, and was prosecuted against both Marple and respondent, so that the obligation which is the basis of appellants’ claim was not incurred upon the faith that Marple was the owner of these premises, and respondent cannot be estopped, as against appellants at least, to claim that this is her separate property.

In each of the eases cited by appellants on this point the transfer was held fraudulent because the complaining creditors had advanced funds to the grantor in reliance on the fact that the record title stood in his name. As we have seen, such is not the case here. It must he held that the evidence is sufficient to support the finding that there was no fraud either in the execution and delivery or in the recordation of the conveyance in question. The judgment is affirmed. Shaw, J., and Olney, J., concurred.