Allenbach v. Ridenour

279 P. 32, 51 Nev. 437, 1929 Nev. LEXIS 32

• Court: Nevada Supreme Court
• Decided: July 5, 1929
• Docket: 2822
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The main point in the case is whether or not there was a sufficient delivery of the deed from D.W. Ridenour to C.D. Ridenour, herein referred to generally as Carl. This question is not so much a question of fact as a question of law, our contention being that under the evidence a sufficient delivery was shown, that is to say, sufficient to satisfy the law. It must be borne in mind all the time that at the commencement of this action Carl Ridenour was in the possession of the property and his deed had been recorded. A deed that is recorded and is in the possession of the grantee is presumed to have been delivered, and the burden of proof is upon the party assailing the deed. Little v. Little, 130 P. 1022; Stewart v. Silva, 192 Cal. 409. We start off, then, with a burden of proof on the plaintiffs to show a nondelivery of the deed.

We are assuming that there is no occasion for citing authority to the effect that a person in his lifetime may deliver a deed in escrow to be delivered to the grantee on the death of the grantor, and that such a deed will convey the title. This much was assumed by counsel for both sides during the trial. The only question of difference is the plaintiff's claim that the deed must be delivered in such a manner that the grantor cannot thereafter obtain the possession of it, that is to say, that it must be so physically situated that it would be impossible for the grantor to regain possession of it. On the other hand, defendants maintain that the delivery of the deed is a pure question of intent. In other words, whenever the grantor has manifested his intention to deliver the deed, that is a sufficient delivery, and that the grantor may thereafter obtain the possession of the deed and, if he intended in the first place that the deed should be delivered, his possession thereafter does not prevent the deed from taking effect. Kelsa v. Graves, 68 P. 608; Brown v. Westerfield, 53 Am. St. Rep. 536; Hastings v. Vaughn, 5 Cal. 319; Stone v. Daley,181 Cal. 571; Moore v. Trott, 162 Cal. 274.

The rule is that when a deed is placed in the hands of a third party the grantor must intend it to be beyond his control, and when the courts say it must be beyond the control of the grantor they mean it must be beyond his right to control it, not beyond his control in the sense of having the mere physical custody of it.

There is one thing that is established in this case, and that is that Dave Ridenour intended this property to pass to Carl, and that he thought it had done so, and that is sufficient delivery, even under the authorities cited by plaintiffs.

Our contention is that even though conceding that the deed was never delivered, the will refers to the deed as having been executed, and if the deed were actually in existence at the time the will was made and can be identified by parol proof, it becomes a part of the will and becomes effective as a devise after the death of D.W. Ridenour. Or, again, if the deed from David W. Ridenour to C.D. Ridenour had been witnessed by two witnesses, we could probate the deed as a will. Noble v. Tipton, 3 L.R.A. (N.S.) 645; Alexander on Wills. vol. 1, p. 77, sec. 66; Estate of Willey, 128 Cal. 1; Estate of Plumel, 151 Cal. 77; American and English Encyclopedia of Law, vol. 30, p. 578. See, also, Estate of Vandehurst, 171 Cal. 553; Estate of Skerrett,67 Cal. 585; Estate of Doane, 190 Cal. 412; Estate of Shillaber,74 Cal. 144; Estate of Soher, 78 Cal. 477.

There is also such a thing in law as a devise by implication. See Estate of Franck, 190 Cal. 31; Estate of Blake, 157 Cal. 456.

If plaintiffs were mistaken or imposed on by the agreement whereby they were to have two thousand dollars each extra out of the estate and the boys were to have the ranches, their remedy was to rescind the agreement. In order to effect a rescission, the parties rescinding must restore everything received by them under the contract. No such restoration or offer to restore was made by the plaintiffs. The only thing that can be said is that they expressed a willingness to allow the two thousand dollars each received by them to be taken out of their share of any property coming to them from the estate. In the case of Hite v. Mercantile Trust Co., 156 Cal. 765, an offer of this kind was held insufficient. In order to effect a rescission the parties must rescind promptly and restore everything received under the agreement. Kelly v. Owens, 120 Cal. 507; Westerfield v. New York etc. Co., 129 Cal. 84; Matteson v. Wagner, 147 Cal. 744; Hill v. North Pacific Ry., 113 Fed. 919.

Since writing the above, our attention has been called to a decision of the supreme court of California, Bauer v. Bauer,201 Cal. 267, which leads us to believe that the complaint in this case does not state a cause of action, and that the Second judicial district court of the county of Washoe, State of Nevada, sitting as such, did not have any jurisdiction to try the cause or render a judgment, and that the judgment in this case is void ab initio. The decision referred to was based upon the provisions of sections 1581 and 1582 of the Civil Code of California, which correspond to sections 6021 and 6022 of the Rev. Laws of Nevada. This Bauer case is exactly on all fours with the case at bar, and the question to be determined is whether or not the court had jurisdiction to try the case or whether such jurisdiction was exclusively in the probate court. The demurrer to the complaint in the Bauer case was sustained without leave to amend, for the reason that no court other than the probate court had jurisdiction to adjudicate the title as between the administrator and the estate. In other words, the jurisdiction of the probate court was exclusive.

Whatever may be said of the judgment as to the real estate, it is clear that the court had no jurisdiction to enter a judgment against the defendants in this action for two thousand dollars, the rental value of the premises. That is purely a matter of accounting in the probate court. Robertson v. Burrell, 110 Cal. 568; Holland v. McCarthy, 177 Cal. 510. In the above cases it was clearly held that the heirs could not bring suit for personal property. The trial court, after hearing all of the evidence and observing the demeanor of the several witnesses, reached the conclusion that there was not a sufficient delivery of the deed to pass the title to the defendant C.D. Ridenour, named as grantee therein. Therefore the question before the appellate court is this: Is there sufficient evidence in the record to justify the trial court in finding that there was not a sufficient delivery of the deed? We do not deem it necessary for us to cite any decisions of our own supreme court to the effect that if there is any evidence upon which the trial court could have reached the foregoing conclusion, that conclusion and the findings and judgment based thereon will not be disturbed by this court.

This court, as did the trial court, in passing upon the question as to whether there had been a delivery of the deed, must first start with a strong presumption of nondelivery, which is almost irresistible, because the deed was first found and discovered in the possession, or rather, among the effects of the grantor himself after death. Such a presumption of nondelivery under these circumstances is referred to by the supreme court of California in the case of Stone v. Daley, 181 Cal. 571. Of course, in that case there was other evidence which the court held conclusively showed that a delivery had first been made to a third party and that the grantor, at that time, intended that there was a complete delivery, and that the instrument was to become effective in praesenti, and the fact that it was thereafter returned to the grantor for the special purpose of safekeeping, and in order that the grantor's husband should not know of the existence of the deed until after her death, did not detract from the delivery that was first made to the third party.

In support of the trial court's finding that the said deed, after its making and signing by the grantor, remained in the exclusive and continuous possession and control of said grantor, we direct the court's attention to the fact that no one other than David or D.W. Ridenour, the grantor, ever had access to the safe-deposit box in which the deed was found after the grantor's death.

It has always been universally held that intention must be joined with the act of delivery before title passes. Counsel confuses intention to deed with intention to deliver, in the authorities he has cited. The trial court very aptly illustrated our point as follows: "However clear testator Ridenour's intentions may have been, that intention should have found expression in the manner and form provided by law. * * * He retained personal control of the deed, and the requirement of law that a deed, to be operative, must be delivered to the grantee, or to someone for delivery to him, being also shown not to have been complied with, the intention of the testator vanishes into the realm of things improperly done, and, in law, useless and void."

In the case of Noble v. Tipton, an Illinois case, cited in 3 L.R.A. (N.S.) 645, the facts are very similar to the instant case; it was held that there was no delivery of the deed during grantor's lifetime, and inasmuch as the grantor retained control over it and it was not to be delivered until after his death, there was no delivery.

The case of Lang v. Cullinan, cited in the Noble case, supra, is directly in point with the contention here made by appellants' counsel on the effect of the testator's statement in the Ridenour will that he had deeded the ranch to C.D. Ridenour; and the court in the Lang case held squarely that such reference in the will had no bearing on the question of delivery.

We are unable to find a single authority which supports counsel's argument when that argument is analyzed and the authorities themselves are properly applied; and we therefore repeat that according to the universal rule mere intention to deed or to convey does not constitute a delivery.

The grantor, by the clause in his will, if there were no other evidence in this record, has clearly negatived any inference of an intention to deliver presently, by expressly stating that the will had been or would be placed in escrow in the Scheeline Bank "to be delivered upon my death." This could only show that it was intended as a testamentary disposition of the property, and, therefore, the deed would have to be dealt with as such, and in order to pass title would have to conform to our statute on wills. This, of course, it does not do, and there being no delivery, the instrument is void and ineffective for any purpose.

We agree that in this case the burden rests with the plaintiff to prove nondelivery, but, as is said in the case of Hawes v. Hawes, 53 N.E. 79, this presumption is inconclusive and may be overcome by other evidence. The record being clear that the deed was first found among the effects and in the safe-deposit box of the grantor himself, a presumption is raised, as stated by the authority of Stone v. Daley, supra, that there was no delivery, and for that reason we submit that we have met the requirement of the law in assuming the burden of proof of nondelivery, and that that presumption of nondelivery must be overcome by the other side, especially in view of all of the other facts and circumstances in the record showing conclusively that the grantor exercised full dominion and ownership over the property. See, also, Wiggins v. Lusk, 12 Ill. 132.

It seems to us that it would be idle to enter upon a discussion of the numerous cases cited by counsel for the appellants, because, in our opinion, the facts in the instant case are entirely dissimilar to those in the cases cited by counsel; but rather will it be more profitable and convenient to this court just to cite authorities which conclusively establish the law and the almost universal rule of what is necessary in order to constitute a valid delivery. Perhaps one of the earliest cases in the State of California upon the question is that of Bury v. Young, 33 P. 338. In that case the supreme court of California pointed out what seems to be the distinction running through practically all of the cases, and has been followed through all of the later California cases, and may be said to be the pioneer case upon the subject in that state. In the case of Moore v. Trott, much cited by counsel, and in the first opinion in that case from the supreme court of California, that court laid down what we believe, from a reading of all of the authorities, to be the true test as to whether or not there is a delivery, at the top of page 578 of 104 P., and again at page 579 of the opinion.

In a few of the cases cited by counsel for the appellants, the deed was eventually found among the effects of the grantor; but the court will bear in mind that there was positive and uncontradicted evidence that the deed had, at some time during the life of the grantor, been unconditionally delivered to a third party.

In the case of Williams v. Kidd, 151 P. 1, decided on July 30, 1915, the supreme court of California held that there had been no delivery of the deed, because the grantor, when he delivered the deed to the third party, did not surrender control over it and thereafter continued to exercise his ownership over the property by offering to sell the property to other parties. This is just what D.W. Ridenour did in this case; he continued to exercise ownership over the property by leasing it, collecting the rents, paying the taxes and offering to sell it to the lessee. The facts in the case of Williams v. Kidd made it a much stronger case than this one in support of a delivery, as it appeared there that the deed had been actually delivered during the lifetime of the grantor. But the court held that it was under such circumstances that the grantor still retained control over it.

For other cases in California, see Long v. Ryan, 137 P. 29; Rice v. Carey, 151 P. 135; Rees v. Rees, 216 P. 1006.

Even though we might assume for the sake of argument that at some time or other during the lifetime of D.W. Ridenour his wife had possession of the deed, still, in the absence of any testimony that he had made an unconditional surrender of the deed to her with no right to recall or revoke it, there would and could be no valid delivery. We might say that the authorities are unanimous in support of that proposition, and we cite just a few recent decisions from different states which hold to that effect, as follows: Seely v. Curts, 180 Ala. 445, 61 So. 807; Stevens v. Stevens (Ill.), 99 N.E. 917; Linn v. Linn (Ill.), 104 N.E. 229; Latshaw v. Latshaw (Ill.), 107 N.E. 111; Gomel v. McDaniels (Ill.), 109 N.E. 996; Deitz v. Deitz (Ill.), 129 N.E. 508; Johnson v. Johnson (Ill.), 133 N.E. 667; McColley v. Binkley (Ind.), 121 N.E. 847; Kirby v. Hulette (Ky.), 192 S.W. 63; Smith v. Thayer (Mass.), 125 N.E. 171; Weber v. Schafer (Mich.),210 N.W. 248; Vanhuff v. Wagner (Mo.), 287 S.W. 1038; Abbe v. Donahue (N.J.), 90 N.J. Equity 597, 107 A. 431; Allen v. Leet (N.Y.),217 N.Y. Sup. 274; Gross v. List, 33 Ohio C.C. 579; Snodgrass v. Snodgrass (Okla.), 231 P. 237; Thrush v. Thrush (Ore.),125 P. 267, and 126 P. 994; Eckert v. Steward (Tex.), 207 S.W. 317; Rhines v. Young (Wash.), 166 P. 642; Zimmerman v. Zimmerman (Wis.), 161 N.W. 396; Padden v. Padden (Wis.),177 N.W. 22; Darling v. Williams (Wis.), 207 N.W. 255; Fisher v. Oliver (Cal.), 164 P. 800.

An exhaustive search of the Nevada decisions fails to disclose that our supreme court has ever had occasion to decide upon the main question of what constitutes a delivery of a deed under circumstances present in this record. The nearest approach to an application of the rules on this subject is found in the famous case of In Re Miller's Estate, 43 Nev. 12.

As to counsel's contention that even though conceiving that the Ridenour deed was never delivered, the will refers to the deed as having been executed, and if the deed was actually in existence at the time the will was made and can be identified by parol proof, it becomes a part of the will, and becomes effective as a devise after the death of Ridenour, we cite: Jarman on Wills (50th ed.), p. 540 of vol. 1; Noble v. Tipton, 3 L.R.A. (N.S.) 645; Page on Wills, sec. 468; Underhill on Wills, sec. 475; Koger v. Koger, 92 S.W. 1167; Smith v. Smith, 31 L.R.S. (N.S.) 922; Zimmerman v. Hafer (Md.), 32 A. 316.

There is no incorporation of this deed in the Ridenour will by reference. The language of the will merely refers to what the testator believed had been done, to wit, a conveyance by him to his son of the property in question through the medium of the deed he referred to; hence, none of the authorities cited by counsel upon this point have any application whatsoever to the language in the Ridenour will. The very fact that the testator said he had "conveyed" negatives all possible inference that he intended to bequeath or devise. The subject is dealt with in 40 Cyc., pages 1390 and 1391, under the heading "Devise or Bequest by Implication."

Counsel for appellants suggests that the agreement of the Ridenour sisters to accept $2,000 each in lieu of their interests in the ranches is sufficient to estop the plaintiffs from a recovery in this case, or perhaps it would be more accurate for us to quote counsel as saying in his brief that the plaintiffs could not rescind the agreement because they had failed to restore everything received by them under the contract. It is hardly necessary for us to cite any authorities to the effect that where the parties are mistaken as to the subject matter of a contract a court of equity will decree a rescission of the contract. We shall content ourselves by directing the court's attention to the text in 13 C.J., p. 376, supported by innumerable authorities. The very authorities cited by counsel for the appellants clearly demonstrate the unsoundness of his proposition when applied to the instant case.

The only authority which the appellants produced in support of their contention that the district court was without jurisdiction to hear this matter is the California case of Bauer v. Bauer,201 Cal. 267, 256 P. 820, which case is easily distinguished from the instant case. In the instant case, the deed having been taken subsequent to the death of the grantor or testator, it was not such an action, in its very nature, which could have been maintained by the testator during his lifetime. Section 6022 of our statute, relied upon by counsel, does not make it imperative that the action shall be commenced by the representative of the testator or intestate. It merely says that such an action "may" be commenced, but where, as in this case, title to the property being of record in the testator at the time of his death, all of the rights of the heirs in and to the property immediately vested upon the testator's death. Wren v. Dixon, 40 Nev. 172 and 208; Winters v. Winters, 32 Nev. 324; Gossage v. Crown Point M. Co.,14 Nev. 156.

It is idle indeed to argue that the above section can have any bearing upon this case when, as is shown by the pleadings, the defendant claims adversely to the estate in his individual capacity, and refuses to recognize the rights of the plaintiffs as heirs to the property.

We fail to find wherein the sections in question, 6021 and 6022 of our Rev. Laws, can in any way assist the appellants in their contentions here, because obviously the sections do not require that such actions, even though brought by the executor or administrator, be commenced and maintained in the probate proceedings. We do not believe that we need to go beyond one single decision in this state in order to answer the contention of the appellants on this question. That is the case of In Re Singleton, 26 Nev. 107, 64 P. 513. As we read this case it is on all fours with the facts in the instant case.

Perhaps one of the best definitions of the jurisdiction of our probate courts is found in the opinion written by Mr. Chief Justice BEATTY in the case of Lucich v. Medin, 3 Nev. 93, on p. 99. The language of Mr. Chief Justice BEATTY was cited and followed with approval in the Washington case of In Re Alfstad's Estate, 67 P. 596. For further authorities upon the same question we cite the following: Weeks v. de Young (Texas), 290 S.W. 852; Johnson v. Hampton, 297 S.W. 891; In Re Klumpke's Estate (Cal.),139 P. 1062; Fancher v. Kenner (Ark.), 160 S.W. 166.

In support of his contention that whatever may be said of the judgment as to the real estate, the court had no jurisdiction to enter judgment against appellants for the rental value of the property, counsel cites two California cases. In our opinion neither of these cases has any application whatever to the facts in this case. In the first case cited, Robertson v. Burrell,110 Cal. 568, 42 P. 1086, the language of the court indicates that the same was based upon the statute relating to partnerships. The next case cited by counsel is that of Holland v. McCarthy,177 Cal. 510. We have searched for this case in the Pacific Reporter and have been unable to find it, unless it be the case of Holland v. Kelly, 171 P. 421, which it is very possible is the one that counsel refers to. The court in that case, after discussing the various sections of the California code, uses language, on page 422 of 171 P., which throws the instant case squarely within the exception recognized by the California code.

It would seem absurd for the appellants to contend by the citation of the California authorities that the right of action for these rents lies exclusively in the administrator, in view of the circumstances of this case. See Gossage v. Crown Point M. Co., supra; 11 Cal. Jur., sec. 42.

It is a waste of time for either side in this case to cite authorities upon the question of jurisdiction of the probate court to try the question involved in this proceeding unless we bear in mind the broad distinction between the cases, as defined and pointed out by Mr. Justice BELKNAP in the Singleton case, supra. Upon this distinction the Singleton case is cited by the supreme court of Utah in the case of Snyder v. Murdock, 73 P. 22.

OPINION Respondents, surviving daughters of D.W. Ridenour and Mary Jane Ridenour, brought this action against the surviving sons of the latter, individually and as administrators of their parents' estates, to have a deed canceled and to compel them as administrators to list and inventory the lands described in said deed as the property of said estates, and for further relief. The principal question in the case is whether or not a delivery of the deed was made by the father, D.W. Ridenour, to his son, C.D. Ridenour. The trial court found that there was no delivery of the deed. From the judgment in favor of the daughters, and the order denying a new trial, defendants have appealed.

The following is a summary of the facts about which there is no dispute: D.W. Ridenour died in the city of Reno, in this state, on the 2d day of September, 1922, and left a will devising all his property to his wife, Mary Jane Ridenour, for life, with remainder to his four children, Hattie Ridenour Allenbach, Echo Ridenour Gerow, S.D. Ridenour, and C.D. Ridenour, share and share alike. On the 23d day of August, 1919, he had made and acknowledged before a notary public a deed conveying the property involved in this suit to his son, C.D. Ridenour. A few days after the death of D.W. Ridenour, all of said children and their mother went to the Scheeline Bank in Reno, and there found the deed in a safe-deposit box of said bank standing in the name of D.W. Ridenour. The deed was taken out and delivered to C.D. Ridenour, and he placed it on record, went into possession of the property, and has remained in such possession up to the present time. The will of D.W. Ridenour was admitted to probate in the month of September, 1922. Mary Jane Ridenour died on the 11th day of November, 1925. In the month of January, 1926, C.D. Ridenour and S.D. Ridenour were appointed administrators of the estates of D.W. Ridenour and Mary Jane Ridenour, respectively.

1. The evidence offered by respondents to establish nondelivery is substantially as follows: As has been observed, the deed, signed and acknowledged by the father, was found in his safe-deposit box in the bank a few days after his death. The grantee did not know until that time that such a deed had been executed. Only one key to the box had been issued by the bank, and that to the father. According to the custom of the bank, he was the only person entitled to have access to the box. The cashier of the bank testified very positively that the mother never had access to the box. After the execution of the conveyance the property was always assessed to the father, and he continued to pay the taxes up to the time of his death. Subsequent to the execution of the deed he granted a lease on the property and an option to purchase the same. On the 23d day of August, 1919, D.W. Ridenour executed a will, in which he made this declaration: "I have also by deed conveyed to my son, C.D. Ridenour, of Reno, Nevada, the certain ranch in Washoe County, formerly known as the Lyell ranch, together with all live stock, farming implements and other personal property belonging to me, kept and used in connection with the said ranch, which said deed has been or will be placed in escrow with said Scheeline Banking Trust Company to be delivered upon my death." 2. We think the evidence is sufficient to support the finding of nondelivery. Upon the evidence the court could legitimately conclude that the deed, from the time it was signed until the subsequent death of the father, was never out of his possession or control. It is established by the great weight of authority that the delivery of a deed to a third person for the use of the grantee will not be effectual, unless it is made in such a manner as to show that the grantor has voluntarily relinquished all control over the instrument. So long as the grantor retains any right to recall the deed from the hands of the depository, there is no delivery. It is unnecessary to cite authority in support of this rule.

The evidence offered by respondents supports their view that a delivery of the deed in the lifetime of the grantor was not intended. The declaration of the testator in his will that the "deed has been or will be placed in escrow with the said Scheeline Banking Trust Company to be delivered upon my death" supports that view. So do his acts subsequent to the execution of the deed, indicating ownership of the property. The payment of the taxes on it to the time of his death, the execution of a lease upon the property, and giving an option to purchase, all tend to show that the father did not understand that he had parted with the title. At the most the execution of the deed and the testator's declaration in his will concerning it indicate that it was his intention that upon his death his son should have the property.

3. A delivery of the deed in the lifetime of the grantor, however, was necessary to pass the title. "And it is unquestionably the general rule," as stated by the court in Fisher v. Oliver, 174 Cal. 781, 164 P. 800, "that, where a deed remains in the possession of a grantor, to be delivered to take effect after his death, the deed is void for want of delivery during his lifetime." This general rule is thus stated in 18 C.J. 208: "A deed executed by the grantor with the intention of having it take effect after his death, but which he retains in his possession or control, will be ineffectual to pass title for want of delivery."

Considering the case from the standpoint of appellants' evidence, we are of the opinion that the testimony of the two witnesses produced by the appellants, which is to the effect that some time before his death he told them that he intended to give the ranch to his son, C.D. Ridenour, and the acts and declarations of the father, testified to by the appellants and their wives, signifying his desire to give the ranch to his son, have little or no bearing upon the question of delivery. Noble v. Tipton, 219 Ill. 182, 76 N.E. 151, 3 L.R.A. (N.S.) 645. The statements, if true, are entirely consistent with the intention expressed in the will that the son was to have the property upon the testator's death.

But, if it were clearly established that he had intended a delivery of the deed in his lifetime, this alone would not be sufficient to pass title. For, as the court said in Fisher v. Oliver, supra: "For, saving under exceptional circumstances which do not here arise, ownership of real estate, so far as that ownership is to be parted with by deed, necessitates a delivery of that deed to terminate the grantor's title."

Concerning the requisite of delivery, it is pertinently stated in 8 R.C.L. p. 974: "Certainly no title passes in its absence, even though the intent to deliver is clear and the failure to deliver due to accident."

Further considering the case from the standpoint of appellants' evidence, we find that S.D. Ridenour testified that his father told him he had deeded the two ranches to him and his brother, C.D. Ridenour, and that the mother had the deeds; that after his father's death his mother told him that the father told her he had deeded the two ranches to him and his brother, and that she had the deeds and had had them for a long time; that after his father's funeral his mother told the witness that she had the key to the safety-deposit box, and had had it for a long time. Mrs. S.D. Ridenour testified as to the mother having three keys on a ring and telling the witness that one was the key to the bank box, and also that the mother on one occasion when the father was out of town received from him a check and note and said: "I must go down and put these things away. I don't like to keep anything like this in the house, because some one got in and got Mr. Ridenour's suit case open." Mrs. C.D. Ridenour testified that she heard the mother say she had the key to the safety-deposit box.

It is argued that the declarations of the father and mother, that he had deeded the ranches to the boys and that she had the deeds, show a delivery of the deed in question by the grantor in his lifetime to the mother. The fact that the deed was found in the safety-deposit box shortly after the fathers death is sought to be accounted for upon the theory that the mother either gave the deed back to the grantor, and he placed it in the box, or, having the key to the box, she placed the deed there herself. It is argued that the declaration of the father, testified to by S.D. Ridenour, to the effect that he had deeded the property to the sons, and that the mother had the deeds, stands in the record undenied. This is true as to any direct evidence to that effect, but there is other evidence sufficient to make a substantial conflict in the evidence on the point of such a delivery in the lifetime of the grantor. This conflict, under well-settled principles, precludes this court from disturbing the finding of the trial court to the effect that the deed from the date of its signing until the death of the father remained continuously and exclusively in his possession and under his dominion and control.

The circumstances in evidence, which, in our opinion, make such a conflict, are substantially as follows: Both respondents testified that the mother told them, shortly after the opening of the box, that she never knew of the deeds. This is certainly opposed to the testimony of S.D. Ridenour, in which he stated that both parents told him the father had deeded the ranches to him and C.D. Ridenour, and that the mother had the deeds, and the testimony of the respondents as to this declaration of the mother is certainly opposed to the theory that the deeds may have been delivered to the mother and by her returned to the father. The declaration of the mother that she never knew of the deed also conflicts with the theory that she had the key to the box and may have placed the deed in it herself after it was delivered to her. The testimony of the bank cashier that she had no access to the safety-deposit box is in flat opposition to that theory. The declaration of the will of the testator that "said deed has been or will be placed in escrow with said Scheeline Banking Trust Company, to be delivered upon my death," was relevant to be considered, as bearing against the claim that a delivery had been made to the mother. So, on the whole testimony, we cannot say, in opposition to the finding of the trial court, that the testator actually parted with the deed as claimed, with the intent of placing it beyond his control.

It is insisted that the case of Moore v. Trott, 162 Cal. 274,122 P. 462, is an authority of weight in appellants' favor. That case is readily distinguished from the instant case on one feature at least. In the Moore case there was no question of the deposit of the deed with a third person for the use of the grantee in case the grantor died. The grantor recovered from his illness, and on the first appeal (Moore v. Trott, 156 Cal. 353,104 P. 578, 134 Am. St. Rep. 131) it was held that the evidence was insufficient to show that the grantor had effectually parted with control over the instrument. The grantor, after his recovery, did not take the deed from the depository, and it remained with the latter until the grantor's death. On the second appeal (162 Cal. 274, 122 P. 462) it was held that delivery had been rendered effective by subsequent acts and declarations of the grantor showing his intent to part with control of the deed, although the depository was not informed of the grantor's changed intention. The court was of the opinion that the added evidence was sufficient to support the finding of delivery, saying that it was "fairly inferable that after his [Moore's] return from the Los Angeles hospital, finding himself in failing health, he intended that the deeds which he had left with Tietzen should absolutely be delivered, without power of revocation upon his part, and that he expressed this intent to the grantee under such circumstances as to perfect the delivery." But in the case presented here there is substantial evidence to sustain the finding of the trial court to the effect that the deed was never placed in the possession of a third party.

The case of Stone v. Daily, 181 Cal. 571, 185 P. 665, relied on by the appellants, is also easily distinguished. In that case, as in the case before us, the deed was in the possession of the grantor when she died, but it appeared in the former case, by evidence amounting to positive proof, that the grantor had formerly made an absolute delivery to a third person, and had merely retaken the deed into her possession in accordance with her previous intention to insure its not being recorded, because she did not wish her husband to know anything about it.

The question of whether or not there has been a delivery must be determined upon the facts of each particular case, and, at least in the respect pointed out in the foregoing cases, the facts are dissimilar to the situation presented here. When title to real estate is claimed by the grantee by a deed found to have been in the possession of the grantor at the time of his death, and of which the grantee had no previous knowledge, as in this case, evidence to overcome the presumption of nondelivery flowing from the facts must be strong and convincing. The situation is stated in Wiggins v. Lusk, 12 Ill. 132, in which the court said:

"The evidence introduced on the part of the plaintiff showed, that the deed, after being acknowledged, was retained by the grantor, and was found among his papers, after his decease. The grantee was not present when the deed was executed, and it is very evident that he was not aware of its existence, until after the death of the grantor. It is an irresistible inference from this proof, that the grantor never parted with the control over the deed; in other words, it effectually rebuts any presumption arising from the other facts of the case, that the deed was ever delivered to the grantor [grantee], or to any one for his use. It was, no doubt, at one time, the intention of the grantor to convey the land to McDowell, but he died without carrying the intention into effect. His design was but in part executed; it was never consummated, so as to give the deed any legal operation."

Stress is placed on the following declaration in the will: "I have also by deed conveyed to my son, C.D. Ridenour, of Reno, Nevada, that certain ranch in Washoe County, formerly known as the Lyell ranch," etc. We see no force in the claim that this declaration tends to prove a delivery of the deed. It is merely a conclusion of the grantor. What he meant is explained in the statement which immediately follows, to wit: "Which said deed has been or will be placed in escrow in the Scheeline Banking Trust Company to be delivered upon my death."

The same contention was made in Noble v. Tipton, 219 Ill. 182,76 N.E. 151, 3 L.R.A. (N.S.) 645. The recital in the will in that case was that the testator had deeded the home farm to his son. The court was of the opinion that such a recital did not aid in establishing that there had been a valid delivery of the deed.

Another point made by the appellants is that, because the deed was recorded and was in the possession of the grantee, it is presumed to have been delivered, and the burden of proof was on the respondents to show nondelivery. In reply to this contention it is necessary only to say that there was substantial evidence in the record to justify the trial court in concluding that any presumption flowing from these facts was rebutted.

4. It is contended that, even though the deed was never delivered, the will refers to the deed as having been executed, and the deed being actually in existence at the time the will was made, and being identified, it becomes a part of the will as a devise after death. The contention is untenable. It is based on the declaration in the will heretofore mentioned to the effect that the testator had by deed conveyed the Lyell ranch, together with certain personal property, to his son, C.D. Ridenour. It is obvious that the reference in the will to the deed does not adopt the deed as a part of the will, nor does it otherwise appear therefrom that the testator intended to give the property described in the deed by will. It expresses merely the opinion of the testator that he had conveyed by deed to take effect on his death. It cannot, therefore, be taken as a devise by implication.

The case of Noble v. Tipton, supra, is directly in point. In the latter case the recital in the will was that the testator had deeded the home farm to his son Thomas. It was held that this recital could not give the effect of a devise. The rule on the subject, recognized and applied, was declared to be as follows: "* * * Where a recital in a will is to the effect that the testator has devised something in another part of the will when in fact he has not done so, the erroneous recital may operate as a devise by implication of the same property, for the reason that it shows an intention to devise the property by the will; but where the recital is to the effect that the testator has by some other instrument given to a certain person named in the recital, property, when in fact he has not done so, such a recital does not disclose an intention to give by the will, and in such a case resort must be had to the other instrument and not to the will."

The rule as stated above is uniformly accepted. In Page on Wills, sec. 468, it is stated as follows: "But where the testator in his will, recites erroneously that he has conveyed certain of his real estate by deed to a certain named person, it does not show an intention to dispose of the property by will, but merely testator's opinion as to the legal effect of some pre-existing instrument. If, therefore, such pre-existing deed is for any reason invalid, the reference to it in the will cannot be held to amount to a devise by implication of the property described in such will to the grantee therein."

To the same effect are Koger, et al. v. Koger, et al. (Ky.)92 S.W. 1167; Zimmerman v. Hafer, 81 Md. 347, 32 A. 316; Smith v. Smith, 113 Md. 495, 77 A. 975, 31 L.R.A. (N.S.) 922, 140 Am. St. Rep. 435; Underhill on the Law of Wills, sec. 475; 40 Cyc. pp. 1390, 1391. The instant case falls precisely with the rule so uniformly recognized.

5-7. Another question presented by appellants arises from the agreement in writing made by both the parties to this action and their mother, which is pleaded by the answer. It reads as follows:

"Whereas, the said Mary J. Ridenour is the widow of David W. Ridenour, deceased, and the remainder of the parties hereto are the children of the said David W. Ridenour, deceased, and said Mary J. Ridenour; and

"Whereas, the said David W. Ridenour, deceased, by last will and testament bequeathed what is known as the `Susanville Ranch' and personal property to S.D. Ridenour, and bequeathed what is known as the `Lisle Ranch' in Washoe County, Nevada, to C.D. Ridenour, and bequeathed all of the rest, residue, and remainder of the property to the said Mary J. Ridenour, for life, with the remainder to the said C.D. Ridenour, S.D. Ridenour, Hattie Allenbach and Echo Gerow.

"Now, therefore, it is hereby agreed by and between all of the parties hereto that the said Mary J. Ridenour, if she sees fit, may advance to the said Hattie Allenbach the sum of $2,000 out of the funds of said estate, and to the said Echo Gerow the sum of $2,000 out of the funds of said estate; and

"It is further agreed that, if none of the parties hereto shall make a contest, or objection, to the probating of said will and the distribution of the property as therein stated, then and in such case the sums hereby advanced to the said Hattie Allenbach and to the said Echo Gerow shall not be deducted from portions hereinafter coming to the last-named parties under the terms of said will, but shall be regarded as a clear gift to each of them, and the said Hattie Allenbach and the said Echo Gerow hereby both agree that in consideration of the above they will make no protest and present no objection to the probating of said will or the distribution of said property in accordance therewith.

"In witness whereof, the parties hereinabove named have hereunto set their hands the day and year hereinabove first written.

"Mrs. D.W. Ridenour. "S.D. Ridenour. "C.D. Ridenour. "Mrs. Harriet Allenbach. "Mrs. J.W. Gerow."

It is alleged in connection with the agreement that at the time it was made the parties to it had met shortly after the death of the father for the purpose of discussing the provisions of his will, and it was thereupon fully understood between the parties to this action and their mother that the father intended by the terms of his will that C.D. Ridenour should have the property in question, that upon the execution of the agreement the mother paid to the daughters the sum of $2,000 each, and that said daughters have ever since retained the same and have never called for a rescission of the agreement or offered to return the money. It is therefore claimed by appellants that respondents are estopped from a recovery in the case.

It is obvious that the agreement, which is admitted in the reply, is based on the assumption that the father had bequeathed the ranches to appellants. That this was a mistaken belief was pleaded in the reply, and the court found, in accordance with the allegations thereof, that all of the parties to the agreement mistakenly believed that the father had bequeathed the ranches to his sons; that this was the sole consideration of the agreement; that if it had not been for their mistaken belief in this regard the respondents would not have signed the agreement; that subsequent to the signing of said agreement the mother paid to each of the plaintiffs (respondents) the sum of $2,000 out of the funds of her husband's estate; that the plaintiffs have offered to allow judgment and decree to go against them in this action, adjudging and decreeing that the said sum of $2,000 advanced to each of them be deducted from the distributive shares or portions of the mother's estate. The court further found that there was sufficient money in the estate to withhold the sum of $1,000 from the distributive share of each of the respondents. The trial court concluded that respondents were entitled to have the agreement rescinded, and it was so decreed. There is sufficient evidence to support the findings.

The jurisdiction of a court of equity to decree the rescission of a contract for the mutual mistake of fact, or where even one of the parties was laboring under such a mistake, is too well recognized to require discussion. The mistake in this case, namely, the belief that the father had bequeathed the ranches to his sons, affected the substance of the agreement. It was, in fact, the basis of the agreement, and in such cases, whether the mistake is unilateral or bilateral, equity has jurisdiction to furnish relief. But appellants insist that, in order to effect a rescission, the parties rescinding must restore everything received by them under the contract, and that respondents in this case have not restored or offered to restore the $2,000 they each received under the agreement. It is a general rule, heretofore recognized by this court, that a party cannot rescind a contract and at the same time retain possession of the consideration, in whole or in part, which he received under it. Bishop v. Stewart,13 Nev. 41.

But the rule is not applicable to a case like this. A party is not obliged to return that which he will be entitled to retain, even though cancellation be decreed. 6 Pomeroy, Equity Jurisprudence, 688. The respondents were entitled, under the law applicable to the facts of this case, to ultimately receive and retain, as a part of their distributive shares of the estate of their deceased parents, the moneys advanced to them. The court found that there would be more than sufficient money in the estates to withhold the amount they had received. There is evidence to support this finding. Respondents in their reply offered to allow judgment and decree to be entered against them in that respect. The court, by its judgment, in deducting the said amounts from what they were otherwise entitled to receive, has placed the parties in the same position as they were before the $2,000 was advanced to them. Restoration of the amounts received under the agreement would, under such circumstances, have been unnecessary to do justice, and the law does not require idle acts. It would be an idle act to restore that which ultimately a party would be entitled to receive and retain. This case is therefore clearly distinguishable from the class of cases illustrating the general rule requiring the restoration of money received before the commencement of an action. Under the facts the court could and did accomplish restoration by its decree. Thackrah v. Haas,119 U.S. 499, 7 S.Ct. 311, 30 L.Ed. 486; Harris v. Equitable Life Assurance Society, 64 N.Y. 196; Kley v. Healy, 127 N.Y. 555,28 N.E. 593; Collier v. Collier, 137 Ga. 658-667, 74 S.E. 275, Ann. Cas. 1913A, 1110; Winter v. K.C. Cable Ry. Co., 160 Mo. 159,61 S.W. 606; Reggio v. Warren, 207 Mass. 525, 93 N.E. 805, 32 L.R.A. (N.S.) 340, 20 Ann. Cas. 1244; 24 Am. Eng. Encyc. of Law (2d ed.) pp. 621, 622; 9 C.J. sec. 107, p. 1215; 6 Pom. Eq. Juris. sec. 688.

We have examined all of the cases cited by appellants in support of their position, but do not find any of them in point on the facts of this case. In Kelley v. Owens, 120 Cal. 502,47 P. 369, cited by appellants, the rule we hold applicable was expressly recognized in the following language: "There are exceptional cases where restoration or an offer to restore before suit brought is not necessary — as, for instance, * * * where it clearly appears that the defendant could not possibly have been injuriously affected by a failure to restore."

Such is the case before us. It is also recognized in Richards v. Fraser, 122 Cal. 456, 55 P. 246, quoted from in Matteson v. Wagoner, 147 Cal. 739, 82 P. 436, cited by appellant in the following statement: "One who attempts to rescind a transaction on the ground of fraud is not required to restore that which, in any event, he would be entitled to retain," quoted approvingly from Kley v. Healy,127 N.Y. 555, 28 N.E. 593.

In Hill v. Northern Pacific Railway Co. (C.C.A.) 113 F. 914, cited by appellant, the court quotes approvingly from Vandervelden v. Chicago N.W. Ry. Co. (C.C.) 61 F. 55, in which the class of cases to which the instant case belongs is referred to as follows: "There is a class of cases wherein the facts are such that the court, without a repayment or tender on the part of the plaintiff has it within its power to protect fully the interests of the other party in case of rescission, and in such cases the court may proceed to a hearing without requiring repayment or a tender." We hold, therefore, that restoration or offer to restore was not a condition precedent to respondents' right of action.

8. In his closing brief counsel for appellants for the first time raises an objection to the jurisdiction of the district court acting as a court of equity in this case. He claims that it had not the power to hear and determine the subject matter in controversy as such a jurisdiction was exclusively in the probate court. The question has been determined, and we think correctly, in Re Singleton's Estate, 26 Nev. 106, 64 P. 513. In that case it was held that the probate court, in the absence of a statute, has no jurisdiction to adjudicate disputed rights against an estate. Such is the nature of this case. Appellant C.D. Ridenour claims the property involved against the title of the estate. He claims it by deed, which has been shown to be void for want of delivery. We think In Re Singleton's Estate was correctly decided and deem it unnecessary to elaborate upon it. It declares the law of this case.

9. It is contended further that, whatever may be said of the judgment as to the real estate, the court had no jurisdiction to enter judgment against appellant C.D. Ridenour for the rental value of the property, and requiring him to account for the same to the administrator of the estate. As to this it would seem to be sufficient to revert only to the settled principle that a court of equity, having jurisdiction of the subject matter of a suit is entitled to retain jurisdiction for the purpose of giving complete relief. 21 C.P. pp. 134, 135. And in so doing it may establish purely legal rights and grant legal remedies, which would otherwise be beyond its power. 21 C.J. 138.

Although the recovery of rents is usually a matter solely of legal cognizance, when a court of equity has taken jurisdiction to set aside a title, it may also take an account of rents received through such title and award them to the rightful owner. Whetstone v. McQueen, 137 Ala. 301, 34 So. 229; Conklin v. Foster, 57 Ill. 104; Holeton v. Thayer, 86 Ill. App. 526; Martin v. Martin, 44 Kan. 295, 24 P. 418; Canton v. McGraw, 67 Md. 583,11 A. 287.

The judgment is affirmed.