(185 P.) and thereafter the company recognized and thereupon be declared the owner of an unacknowledged plaintiff as the sole owner of divided one-tenth interest in the land. The the contract, and accepted all the payments reply alleges that on March 6, 1906, Willis from her, and October 26, 1915, executed to Shaw purchased the contract from Richardher a warranty deed. son for the sum of $1,747.35, and admits that November 20, 1909, Mrs. Shaw made a dec- defendants each acquired a one-tenth interlaration of trust which was duly recorded, est with Shaw in this contract; that at the and, among other things, recites that the time of the purchase of the contract by Willis Union Pacific Railroad Company on October Shaw from Richardson there were deferred 31, 1905, contracted to sell the land to Rich-payments thereon as follows: ardson, and March 6, 1906, Richardson assigned the contract to Willis Shaw, and March 21, 1908, Willis Shaw assigned the contract to his wife Emma F. Shaw, and further recites: "Whereas, G. A. Bergtold, H. O. Conklin, and Emma Russell have paid for and each own an undivided one-tenth of said contract, and hold such interests under declarations of trust from Willis Shaw, trustee, dated March - 2, 1906: In 1906 1907 1908 1909 1910 1911 1912 1913 1914 ........ .$ 85.78 243.43 ........ 160.20 225.12 215.58 196.22 186.68 ......... 178.08 .................... 168.54 that defendants' interests were taken subject to the pro rata payment by each of a one"Now, therefore, this instrument is to de-tenth of these annual payments due under the clare that I hold title to said contract and the contract to the company, together with onelands above described, when conveyed to me, in trust for the following named persons in tenth of the taxes; that she became the ownproportions as follows, to wit: For G. A. er of the contract by assignment from Willis Bergtold, one-tenth; for H. O. Conklin, one- Shaw to her in 1908; that, after she became tenth; for Emma Russell, one-tenth; and for the owner of the contract, she paid all the myself, Emma F. Shaw, seven-tenths-but deferred payments and taxes, and in 1915 such interests are subject to the pro rata the company executed and delivered to her payment of the unpaid purchase money and a warranty deed to the land. She then alother terms of said contract. And it is furleges that in 1909, and each and every year ther understood and agreed that if any or either of said parties shall make default in any thereafter, defendants and each of them depayment of his or her share, as it becomes due faulted and made no payment whatever, and under said contract, and such default in pay- that they were each served with written noment shall continue for thirty (30) days after tice of their default in the first year in which written notice, then such defaulting party shall it occurred, but neglected and failed to make forfeit all his or her right, title, and interest any of the payments. in and to said contract, and in and to the pay ments then made thereon to that time. The others in interest, or either of them, may make such payment, and thereupon such defaulted interest shall belong to those paying for the same, in proportions of their respective payments on such defaulted payment." Mrs. Shaw, after receiving the deed, began this action against defendants to quiet title in her to the land. The complaint is in the usual form-that she is the owner in possession of the land, and that defendants each claim some right, title, or interest therein, which is unfounded. Defendants allege that, about March 2, 1906, they each acquired a one-tenth interest in the contract and they plead the declaration of trust made by plaintiff November 20, 1909, and allege that they at all times have been ready and willing to pay their pro rata share, but were unable to obtain from plaintiff a statement of the amount due from them to her. They then allege that they never received any notice of default whatsoever, and that they each own a one-tenth interest in the land. They pray that they be allowed to make such payments to plaintiff as are due or have become due to her on account of her payments on the contract, and the taxes, and that they each made the payments to the company on the In 1906, 1907, 1908, and 1909 the trustee contract, and the taxes, and notified the defendants of their pro rata share which they remitted to the trustee. After Mrs. Shaw became trustee, she refused to give defendants any statement of the amounts due, though often requested to do so, and defendants made no further payments to her. In December, 1909, one of the defendants wrote to her as follows: "In regard to the several talks that we have had over the telephone in reference to my onetenth interest in all of section 1, township 11, range 52, Logan county, Colorado, of which you are the trustee, I hereby notify you that I am ready to pay my portion of the payment that was due the railroad company in October, and I also hold for Mrs. Russell money to pay her one-tenth interest. I would respectfully ask you to call at my office and bring the railroad contract, together with the receipts, at which time I am ready to pay the amount for each of us. I must insist that you produce the receipt from the railroad company, and also the tax receipts for the year 1908." September 8, 1910, he wrote her again: "I herewith notify you that myself and Mrs. Russell are ready to pay our portion of the in stallment which falls due in October, 1910, on all of section 1, township 11, range 52, Logan county, Colorado. I wish to say that I still request that you bring in to me the receipts showing everything paid to the railroad company on both sections, together with the tax receipts for 1908 and 1909. As you are trustee of this section, I will request that you bring these papers in. Our money is ready at any time, the same as I notified you on December 16, 1909." December 9, 1911, he again wrote her: "This is to notify you that I am ready to make my payment of my interest in all of section 1, township 11, range 52, Logan county, Colorado, and also make the payments for Mrs. Emma C. Russell." Defendants were asking for statements, and offering to repay plaintiff, and she refused to furnish them with any statement, and testified that she "never at any time furnished these people with a statement of the amount due." Conn. 468, 476; Smith v. Jewett, 40 N. H. 530, 534. [2-4] 2. The forfeiture claimed in the declaration of trust could only be enforced through Plaintiff some legal procedure. voluntarily, when she accepted the assignment of the contract and made the declaration of trust, assumed the burden, the same as Willis Shaw, of making the whole payment each year to save the property, and her own interests, and being reimbursed by defendants, and was protected by a lien on the land for all the money she advanced, and interest thereon. The payments made by plaintiff for defendants should have been treated by the court as advancements made by the trustee. If, as tenant in common, she was obliged to make these payments on the contract in order to save her own estate, that is no reason why she should be entitled to enforce a forfeiture of their interests. She is presumed to have made such payments to preserve the trust estate. The court should have applied the rule of compensation for disbursements. A return of the money she pensation. She had a remedy by foreclosing under the declaration of trust, the rights of the defendants in the contract and land, unless they made the payments due her within some reasonable time to be fixed by the court; or its seems to us, she could have brought a suit in partition, in which her rights would have been protected for any payments she made in preserving the common estate. Instead of this, she usurped the power of the court and claimed to own the interests of the defendants, and asked a court of equity to aid her in holding it. Trice Doud & Fowler, of Denver (George W. Wil-advanced, with interest, would be just combur, of Chicago, Ill., of counsel), for plaintiffs in error. Munson & Munson, of Sterling, for defendant in error. 646, 61 L. R. A. 176; Warren v. Adams, 19 Colo. 515, 525, 36 Pac. 604; Hallack v. Traber, 23 Colo. 14, 16, 46 Pac. 110; McPherrin v. Fair, 57 Colo. 333, 141 Pac. 472; King v. Cushman, 41 Ill. 31, 89 Am. Dec. 366; Davis v. Hamlin, 108 Ill. 39, 49; Rankin v. Barcroft, 114 Ill. 441, 3 N. E. 97; Brantly v. Kee, 58 N. C. 332, 333; Hansbrough v. Peck, 5 Wall. 497, 18 L. Ed. 520. GARRIGUES, C. J. (after stating the facts as above). [1] 1. Plaintiff is asking a court of equity to aid her in acquiring defendants' property by forfeiture, as it would do by granting her the relief asked in this case. Defendants each paid for and owned an undivided one-tenth interest in the contract, and the declaration of trust provided that in case they failed to make the subsequent pay-V. Comstock, 121 Fed. 620, 622, 57 C. C. A. ments, and the default continued after she had given them 30 days' notice in writng, they were to forfeit to her, and she was to hold and own, their interests in the contract and the land. If, in an action to quiet title, plaintiff can hold defendants' interests, it is because of their failure to perform a condition subsequent, namely, their default in refunding the payments to her. These people were engaged in a joint venture, and the relationship of trustee and cestuis que trustent existed. She was not a vendor; she never owned defendants' interests in the contract and land, except as she claimed them by forfeiture. Her contention is the defendants' interests belong to her because they did not refund, after 30 days' notice, the money she advanced on the contract, and she asks the court, in an action to quiet title, to aid her in enforcing the forfeiture. A court of equity will not enforce a forfeiture. Story's Eq. vol. 2, par. 1319, 14th Ed.; Keller v. Lewis, 53 Cal. 113; Crane v. Dwyer, 9 Mich. 350, 80 Am. Dec. 87; M. & C. R. R. Co. v. Neighbors, 51 Miss. 413, 421; Warner v. Bennett, 31 3. It may be, in the action to quiet title, that the court could have ascertained the amount due plaintiff from each defendant, and given each a reasonable time to make the payment, and provided if it was not paid by a day fixed, that any defendant failing to pay the amount should be debarred from asserting any further interest in the land, us prayed in the answer, or may do so now; but it was not justified in entering a decree giving defendants' interests in the land to plaintiff, upon repayment by her to them of what they had paid. [5] 4. The evidence fails to show that the notice was given. The essential part of the evidence is documentary, and much of it by (185 P.) (181 Cal. 571) depositions, and the finding of the trial court on these matters is not conclusive on us. We❘ STONE et al. v. DAILY. (S. F. 8604, 8605.) are in as good a position to judge of such evidence as the trial court. Mrs. Shaw does (Supreme Court of California. Nov. 24, 1919. Rehearing Denied Dec. 22, 1919.) not claim that she served the notices personally. She claims they were prepared and 1. DEEDS 60-DELIVERY ON CONDITION OF served for her by one Ledbetter, and on this point testified: "I did not read it [the notice]. I never saw it. I do not know of my own knowledge that notice was sent. I did not see them posted [mailed]. I heard them dictated, partially, and then I left when he [Ledbetter] was about half through. I do not know whether these notices were ever mailed or not." [6] Ledbetter testified he prepared and mailed the notices for her, and, if he did so, the presumption would be that they were received; but this presumption was overcome by the unqualified denial of each defendant that he ever received any notice whatsoever. There is no claim that notices were delivered in person or sent by registered mail. [7] 5. It is claimed that defendants should have made their payments to the railroad company on the contract, and that each should have paid to the county treasurer onetenth of the taxes each year. This was not contemplated by them, and it is doubtful if they could have done so. The company did not know or recognize them as parties to the contract. Its contract was with Richardson, and it recognized the assignment from him to Willis Shaw, and from Willis Shaw to plaintiff. It neither had notice of, nor recognized, any interests therein belonging to defendants. They were strangers to the contract and to the land so far as the company was concerned. It received payments from the party who was legally bound to make them, and made the deed to her. It could have made the deed to no one else. The railroad company never could have declared a forfeiture and canceled the contract as to defendants for nonpayment by them, because they were not parties to the contract. It was the agreement, when they made their initial payment of $175 to Willis Shaw, that he was to make the subsequent payments on the contract and they were to refund to him, and under her declaration of trust plaintiff is as much bound by this agreement as Willis Shaw. The amount due each year was different. Mrs. Shaw refused to give them the amount due, and if a defendant by some means could have ascertained the amount each year and tendered one-tenth of the payment to the company and one-tenth of the taxes to the county treasurer it would have been refused. Judgment reversed and cause remanded. BAILEY and ALLEN, JJ., concur. SURVIVORSHIP. Where deed is handed to a third person instructed to keep it till death of either grantor or grantee, and then to deliver it to the survivor, the delivery is not effectual, not being absolute, but conditional upon grantee's surviving grantor. 2. DEEDS~56(2)—DelivERY BY HANDING TO GRANTEE DEPENDENT ON INTENT. Handing of deed by grantor to grantee with property is yours," while a valid delivery, if statement, "Here is the deed, and now the done as a final act and with intent then and there irrevocably to vest in grantee the title, was not a valid delivery if such handing over of the deed was with intent that it should not constitute a final delivery, but that the deed should then be deposited with a bank to be held by it and given, on the death of grantor or grantee, to the survivor; the question being one of intent.. 3. DEEDS 194(1) INFERENCE FROM LATER ACTS AGAINST HANDING OF DEED TO GRANTEE BEING DELIVERY. From the fact that immediately after grantor handed the deed to grantee with statement, posited it with a bank to deliver, on the death "Now the property is yours," the parties deof one of them, to the survivor, a strong inference arises that such handing to the grantee was not intended as an absolute delivery. 4. DEEDS 194(1)-INFERENCE AS TO DELIVERY FROM ACKNOWLEDGMENT OF RECEIPT. No inference of absolute delivery of deed arises from fact that the grantee signed an acknowledgment of receipt indorsed on the deed by grantor's attorney, for there would have been no occasion for the indorsement if it had been intended that the deed should remain in the grantee's hands. 5. DEEDS ~60 - DELIVERY WITH REQUEST THAT DEED BE NOT RECORDED DURING GRANTOR'S LIFE CONDITIONAL DELIVERY. If when grantor handed the deed to grantee, with request that it be not recorded during grantor's life, it was the belief of the parties that the deed would not be effective unless recorded, the delivery was not valid, though the parties intended it, at the moment, as the final consummation of the matter; the intention being that delivery should not be absolute, but, upon condition that the deed be not recorded first, that it be not recorded or effective at all. until grantor's death, and in case grantee die 6. DEEDS ~56(7) EFFECT OF RETURN TO GRANTOR FOR SAFE-KEEPING AND KEEPING FROM RECORD. Where grantor delivered deed to third person for grantees with intention to irrevocably vest title in grantees, the absolute and effective character of the delivery was not affected by the fact that the grantor, in accordance with For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes her previous intention, immediately retook pos- and, according to his testimony, the deed to session of the deed and kept it, where she def- him was made because he felt and repreinitely understood and intended that her retak-sented to his wife that he needed some proing and possession should be merely for pur-tection in his old age in case his wife should poses of safe-keeping and to insure that the deed be not recorded, and thereby to keep it from her husband's knowledge, and that she had no right or power to recall the instrument or change its character as an immediately effective instrument of conveyance. In Bank. die first. Mrs. Daily thereupon consulted her attorney about making a deed to Daily, reserving a life estate in herself. Her attorney advised her to make a will, saying that if she made a deed she could not take it back, but that if she made a will she could change it. She replied that she did not wish to Appeal from Superior Court, Lake County; change it, but wished to give it (presumably Emmet Seawell, Judge. the property) to Daily. Her attorney told her to think the matter over, and a short Action by Cora L. A. G. Stone and others against George L. Daily. From the judg-time later she returned and requested him to ment both parties appeal. Reversed for new trial on issue of delivery of deed for plain prepare a deed. He thereupon prepared the deed in question here, purporting to convey the property to Mr. Daily, but reserving to Mrs. Daily the right to use and occupy it during her lifetime. Mr. Daily was called in, and the deed signed and acknowledged by Mrs. Daily. Upon this being done, Mrs. Daily, according to the testimony of the attorney and Daily himself, handed the deed to Daily, saying, "Here, George, is the deed, and now the property is yours." Mrs. Daily requested that the deed be not recorded, and Daily asked the attorney to keep it. The latter did not wish to do so and suggested leaving it with the bank. He prepared an envelope for the purpose of inclosing the deed and indorsed upon it the following: "We George L. Daily and Rebecca J. Daily, husband and wife, do hereby deposit this sealed envelope and its contents in the Bank of Lake hereby instruct the said Bank of Lake to hold at Lakeport, Cal., and we and each of us do the said envelope and its contents so long as we may live; and during such time not to deliver the same to either of us nor to any other person, nor suffer the seals to be broken; upon the death of either of us to deliver the same to the survivor on demand. Dated January 11, 1900." OLNEY, J. This is a suit to quiet title to certain real property formerly belonging to one Mrs. Rebecca J. Daily, now deceased. The defendant is the surviving husband of Mrs. Daily, and claims the property by reason of a deed of gift by her to him which for convenience we may call the Daily deed. The plaintiff, Mrs. Cora L. A. G. Stone, is a daughter of Mrs. Daily by a former husband, and is her only child, and the other plaintiffs are Mrs. Stone's children, Mrs. Daily's grandchildren. The plaintiffs claim under a deed of gift by Mrs. Daily to them, made subsequent to the Daily deed, and which for convenience we may call the Stone deed. The plaintiffs contend that the Daily deed, while signed and acknowledged by Mrs. Daily, was not, in fact, delivered by her so as to become an effective instrument of conveyance. The defendant makes a similar contention with reference to the Stone deed, and the sole questions in the case are as to the respective deliveries of these two deeds. The trial court found that neither deed was delivered, with the result that neither the plaintiffs nor the defendant were the owners of the property, except as they might be the heirs at law of Mrs. Daily, and gave judgment to that effect. From this judgment both sides appeal. There is little, if any, conflict in the evi-ceived January 11, 1899," and had Daily sign dence. The dispute turns on the conclusions, it. The year 1899 was written by mistake both of law and of fact, to be drawn from instead of 1900, but the difference is immatethe facts which appear in evidence. The land rial. in question is a ranch in Lake county, which [1-3] Upon the foregoing facts it is plain Mrs. Daily owned at the time of her mar-that if the delivery which must be relied on riage to Daily, and upon which she lived at in order to make the deed effective was the that time, and continued to live until her final delivery to the bank under the instrucdeath. The deed to Daily was made in Jan-tions indorsed upon the envelope, there was uary, 1900, a year after the marriage. Daily no such absolute delivery as must exist in orwas 47 years of age at the time, and his wife der to give the instrument life. The instruc This indorsement was signed by both Mrs. Daily and her husband, and the envelope with the deed inclosed was thereupon deposited with the bank designated, where it remained until Mrs. Daily's death, when it was delivered to the defendant. As a part of the transaction, and apparently looking to the deposit of the deed with the bank, the attor ney indorsed on the back of the deed, "Re (185 P.) We of the delivery, and make it one conditional to put the decision upon this ground. can assume, what we believe to be the case, "The all-controlling fact in this case, which defeats plaintiff's claim, is that when the deeds were made and delivered to the cashier of the bank the respective grantors did not absolutely part with all future dominion and control over them, but, upon the contrary, the actual intention and understanding of each grantor was that upon the death of the other the survivor should take back his own deed, and that no title should vest under it." See, also, Canale v. Copello, 137 Cal. 22, 69 Pac. 698; Keyes v. Meyers, 147 Cal. 702, 82 Pac. 304; Long v. Ryan, 166 Cal. 442, 137 Pac. 29. Other than the depositing of the instrument with the bank under the instructions mentioned, there is no act appearing in evidence which could be said to constitute a valid delivery of the Daily deed, unless the act of Mrs. Daily in handing the deed to her hus. band in her lawyer's office just prior to its inclosure in the envelope and deposit with the bank, and saying to him: "Here, George, is the deed, and now the property is yours," constituted such a delivery. A valid delivery might have been so made. If there had been in fact a handing over of the deed by Mrs. Daily to her husband as a final act and with the intent then and there irrevocably to vest in him the title to the property, there was a valid delivery. That afterwards, no matter how shortly afterwards, the parties changed their minds and sought to make another arrangement, as evidenced by the deposit with the bank, would make no difference. The transfer of title would have occurred, would have been a fait accompli, and could be undone only by a retransfer by Daily. The question is, Did Mrs. Daily hand the deed to her husband as a final act, intended irrevocably to vest title in him, regardless of whether he survived her or not? The trial court by its finding that there was no delivery of the deed impliedly found that this was not done, and in view of the fact that the only evidence upon the point was the testimony of two witnesses at to the details of an occurrence of many years before, the legal effect of which might be changed by a very slight and wholly unintentional inaccuracy of recollection, it would be difficult in any case for us to hold that the testimony was sufficient to overthrow the adverse finding. It is not necessary, however, The question is one of intent; Was the delivery in the lawyer's office intended to be final and absolute? In the first place, while it is possible to have had such a delivery in spite of the fact that immediately thereafter a very different arrangement was made by depositing the deed with the bank, the inference to the contrary arising from such deposit is very strong. The handing over of the deed to Mr. Daily and the agreeing upon its deposit with the bank were both parts of one continuous occurrence, of which the deposit in the bank is the final result. Such deposit is certainly what the parties finally intended; in fact, Mr. Daily so testifies; and the inference is very strong that anything done previously was merely preliminary and not final. There is no evidence to overcome this inference. In addition is the strongly confirmatory circumstance that the deposit with the bank accords with what the parties intended to do when Mrs. Daily went to her lawyer's office, and the absolute delivery of the deed to Daily does not. Mr. Daily himself testifies that the understanding between him and his wife before the deed was drawn was that the property was to be his only in case his wife died before him. If the deposit with the bank were effective, it would have accomplished just this, while the absolute delivery of the deed to him would not. [4] We attach no significance favorable to delivery to the indorsement upon the deed signed by Daily acknowledging its receipt, but rather the contrary. There would have been no occasion for the indorsement if the deed were to remain in Daily's hands. The only reason apparent for making it is that the deed was not to remain in his hands, i. e., it was contemplated when the indorsement was made that the deed was to be deposited with the bank as was actually done immediately afterwards. If this be so and the receipt were given as a part of the formality of Mrs. Daily handing over the deed to Daily, it would indicate that at that very time the parties were contemplating the deposit with the bank, and the handing over was but a preliminary to this final result. [5] In the second place, Mr. Daily testifies that at the time the deed was handed to him Mrs. Daily requested that it be not recorded, and there is a strong inference at least from much that appears in evidence that Daily and his wife both had the not uncommon belief that the deed would not be effective unless |