Carey

Claiming under pre-1951 joint tenancy deeds to herself and her deceased husband, plaintiff sought to quiet title. Defendant is the daughter of the decedent by an earlier marriage. Her answer pleaded in full a 1953 deed from her father to her. Plaintiff did not file an affidavit denying “genuineness and due execution’’ of the 1953 deed (Code Civ. Proc., § 448). Plaintiff’s pretrial statement asserted that an issue for trial was whether the 1953 deed to defendant was “effectively delivered by [decedent] to defendant with intent to pass any title”. Defendant’s pretrial statement asserted that the sole issue for trial was whether this deed was “procured by fraud, deceit, duress on or mistake of” decedent. The pretrial conference order listed for trial the issue “whether the deed . . . was properly made, executed and delivered.” It is uneontradicted that plaintiff’s attorney specifically stated at the conference that he asserted the issue of “requisite intent in making delivery” of the deed; the pretrial judge stated that this issue was included in the order as drawn; defense counsel neither objected to the order nor suggested that the issue of intent at time of delivery was barred by…