The action was to quiet title. Judgment passed for defendants and from that judgment and from the order denying her motion for a new trial plaintiff appeals.
Certain of the matters hereinafter stated appear only inferentially from the record, and there may possibly be error in the declarations concerning some of them. The essential facts, however, are made sufficiently plain. A.C. Tedford at the time of his death was living with Emily J. Tedford, who was, or was reputed to be, his wife, and in the household were children of Emily. Tedford and Emily seemed to have been tenants in common of the land here in controversy. However that may be, the contention of plaintiff is that they made deeds to the property in controversy, each to the other, deposited those deeds in escrow with one Doctor Fasig, to be delivered to the survivor upon the death of either; that this delivery to Fasig was not irrevocable; that after the death of Tedford, upon request, Doctor Fasig delivered the sealed package to Emily, who placed of record the deed from Tedford to herself. It is contended that there was no delivery, under the authority of Young's Estate, 123 Cal. 337, [55 P. 1011], and Kenney v. Parks, 125 Cal. 146, [57 P. 772]. Upon the other hand, however, for respondents, it is shown, that quite independent of this transaction, Mr. Burrey, the attorney for the Tedfords, visited them a few days before Tedford's death, that Tedford declared to him that he had made a deed of the property to his wife Emily, that his wife *Page 216 had the deed, that at Mr. Burrey's suggestion Mrs. Emily Tedford brought the deed into the room, restored it to the possession of Mr. Tedford, who then, in the presence of Mr. Burrey, made redelivery of it to Mrs. Tedford, who took it, retained possession of it, and caused it to be recorded. This evidence, notwithstanding the conflict, believed as it was by the trial court, supports the judgment which it rendered. The asserted error of the court in permitting the introduction in evidence of a will of the deceased Tedford is without significance for, if error, the admitted evidence was entirely foreign to the testimony of Mr. Burrey upon which the court based its decision.
Upon motion for a new trial, affidavits of newly discovered evidence were offered, and counter affidavits thereto filed. These affidavits are to the effect that plaintiff, who appears to be the true wife of the deceased, had but recently discovered that Tedford made a will a few days before his death, and this affidavit is accompanied by the production of the will and by affidavits of those who were witnesses to its making. The counter affidavits are to the effect that the people who declared themselves to have been witnesses were not at the Tedford home during the time prior to his death at which it is declared the will was made, and that Tedford at that time was incapable of writing a will. The will itself discloses no attempt to devise specifically the property in controversy. It is a mere inference, even assuming the validity of the will, that it contemplated the devise of this particular real estate. The action is in equity. All this evidence would be addressed to the judge sitting as a chancellor. It is clear that he either discredited these affidavits or believed, as he well might, that if they were true they would not countervail against the testimony of Mr. Burrey of a delivery of the deed to this precise property. It was not error, therefore, to deny the motion for a new trial.
For these reasons the judgment and order appealed from are affirmed.
Lorigan, J., and Melvin, J., concurred.
*Page 217Hearing in Bank denied.