Anderson v. Ruberg

• Decision Date: 18 February 1944
• Docket Number: 29190.
• Citation: 145 P.2d 890,20 Wn.2d 103
• Parties: ANDERSON v. RUBERG et al.
• Court: Washington Supreme Court

145 P.2d 890

20 Wn.2d 103

ANDERSON v. RUBERG et al.

No. 29190.

Supreme Court of Washington

February 18, 1944

Department 1.

Action by Lenus L. Anderson against Herman Ruberg, Clarence Ruberg Hugo Ruberg, Richard Ruberg, Victor Ruberg, Mrs. Edward N Neyens and others, to quiet title to tract of land. From a decree in favor of plaintiff, the named defendants appeal.

Affirmed.

Appeal from Superior Court, Asotin County; E. V. Kuykendall, judge.

Cannon McKevitt & Fraser and Frank J. Blade, all of Spokane, for appellants.

C. Orno Shoemaker, of Clarkston, for respondent.

GRADY Justice.

This action was brought by Lenus L. Anderson against Herman Ruberg and others to quiet his title to the tract of land described in the amended complaint, and the question to be determined is whether a deed thereto, executed by him to his wife during her lifetime, was delivered so as to make it a valid conveyance. The case was tried Before the court, and findings of fact and condlusions of law were entered adversely to the claims of the defendants, upon which was based a decree quieting the title of plaintiff to the property. The defendants appeal from the decree.

In our approach to this case, we accept the claim of the appellants that, as the main question involved in this appeal is what was the intention of the grantor and grantee at the time of the execution of the deed with reference to its delivery, we should not give to the findings of fact made by the trial judge the same effect as we would a direct finding of a physical fact on disputed testimony. With this thought in mind, we have examined the whole record, and it is now our opinion that the preponderance of the evidence and the proper inferences to be drawn therefrom establish the following facts, which we deem the material ones:

At the time the respondent married Clara Ruberg, the mother of the appellants by a former marriage, he was the owner of the property in question. On the fifth day of March, 1937, the respondent signed a deed to the property, naming his wife, Clara Anderson, as grantee. The express consideration was the love and affection borne by him towards his wife, and the deed recited that it was for the purpose of providing for her comfort and support. The deed also provided that the property conveyed should be held and enjoyed by her as her separate property and estate, but the grantor reserved unto himself life use of the same. The deed was prepared by an attorney after consulting the respondent and his wife to ascertain their desires. At the same time, the attorney prepared, and the respondent signed, the following escrow instruction:

'March 1937

'To The American Bank and Trust Company,

'Lewiston, Idaho.

'Gentlemen:

'I, Lenus L. Anderson, grantor in that certain deed of gift dated March 5, 1937, to my wife, Clara Anderson, of Lot 3 of Block 00 of Vineland, Asotin County, Washington, do deposit said deed in The American Bank and Trust Company of Lewiston, Idaho, and hereby direct said Bank to hold it until my death and then deliver same to the grantee therein named, the said Clara Anderson, and I hereby relinquish all control over the same.

'Lenus L. Anderson'

When signed, the attorney handed the deed and escrow instruction to the respondent, and he, accompanied by his wife, went to their place of abode, which was this property. Instead of taking these documents to the American Bank and Trust Company, the respondent and his wife decided to, and he did, place them and carbon copies thereof in a small safe which they had purchased sometime Before . The safe was kept in the pantry off the kitchen and was not locked. Papers and money belonging to each of them were kept therein and each had access to it.

About three years later, Mrs. Anderson, without the knowledge of respondent, brought the deed to Olus Nelson, a friend and neighbor, and asked him to take the deed and put it in his deposit box at a bank for safekeeping, and further requested that, if anything happened to her, he turn it over to Herman Ruberg. She told him that Herman Ruberg was then to deliver it back to Mr. Anderson; but if anything happened to Mr. Anderson, the deed was to be returned to her.

After Mrs. Anderson's death, Nelson gave the deed to Herman Ruberg, with the understanding that he would give it to Mr. Anderson. Ruberg gave the deed to his sister, one of the appellants, and she caused it to be placed of record.

There were but few witnesses called who had any testimonial knowledge as to the facts material or relevant to the issue presented, and the court allowed the appellants a wide latitude in the presentation of their testimony. Many collateral matters were inquired into as bearing on the intention of the parties to the deed relative to its delivery, and, while we have given them our consideration, we do not consider them of sufficient probative value to affect what we believe to be the decisive factors of the case.

The appellants strongly urge that, in his testimony, the respondent made clear what his intention was as to the delivery of the deed to his wife when he testified on cross-examination as follows:

'Q. So you and your wife agreed to keep it in your safe at home. A. Yes.

'Q. And you put it in your safe at your home, in the pantry. A. Yes.

'Q. With the same intention as thought you had put it in the American Bank. A. Oh, yes.

'Q. That's right, isn't it? All right. A. If I could say a few words more----

'Mr. Blade [counsel]: Just a moment.

'Mr. Shoemaker [counsel for Mr. Anderson]: Just follow the attorney, Mr. Anderson. I might make a suggestion here. He also calls the safe at home his bank.'

The examination of the witness...