Blanchard v. Gordon

• Decision Date: 20 September 1966
• Docket Number: No. 40788,40788
• Citation: 418 P.2d 678
• Parties: Manford W. BLANCHARD, Plaintiff in Error, v. Mattie GORDON, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 678

418 P.2d 678

1966 OK 164

Manford W. BLANCHARD, Plaintiff in Error, v. Mattie GORDON, Defendant in Error.

No. 40788.

Supreme Court of Oklahoma.

Sept. 20, 1966.

Syllabus by the Court

1. The inhibition provided for under 12 O.S.1961 § 384 is leveled against persons asserting a cause of action, the title to which was acquired immediately from a deceased person, and not against persons asserting a defense to such cause of action.

2. The inhibition provided for under 12 O.S.1961 § 385, subsection 3, does not apply to testimony of one spouse in behalf of the other, concerning a transaction where the one giving testimony was acting as the agent of the other.

3. Plaintiff in error on appeal may not rely upon certain testimony in an effort to establish an issue in his case and at the same time assert prejudicial error on account of the admission of such evidence by the trial court.

4. Where grantee named in deed, execution of which is unquestioned, was placed in possession thereof by grantor, the presumption in favor of valid delivery passing title can be rebutted only by clear and positive evidence to the contrary.

5. The relation of brother and sister alone is insufficient to prove the character of confidential relation necessary to invoke the rule shifting the burden of proof to the defendant in a suit to cancel a conveyance for undue influence. In addition thereto, there must be proof of the substitution of the will of the sister for that of the brother, the lulling of the brother into a sense of security, the domination of the grantor by the grantee in business decisions, or other comparable elements.

6. In actions of equitable cognizance, this court will examine the record and weigh the evidence, but the decree or judgment will be sustained on appeal unless it is found to be against the clear weight of the evidence or is contrary to law or established principles of equity.

Appeal from the District Court of Choctaw County; Howard Phillips, Judge.

Action for cancellation of conveyance made by deceased father of plaintiff to sister of the grantor. From a judgment for defendant, plaintiff appeals. Affirmed.

Hal Welch, Hugo, for plaintiff in error.

Tom Finney, Idabel, Lon Kile, Hugo, for defendant in error.

PER CURIAM:

This case comes up on appeal by Manford W. Blanchard, plaintiff in error, from an adverse decision rendered against said plaintiff in error, and in favor of Mattie Gordon, defendant in error, in the District Court of Choctaw County, Oklahoma, in an action wherein plaintiff in error sought to set aside and cancel a certain deed to real estate consisting of residential property in Hugo, Oklahoma. The parties will be referred to as they appeared in the court below.

It is undisputed that prior to execution of the deed in question Ben L. Blanchard was the owner of said real estate, consisting of a 50 foot lot with a dwelling thereon. On May 6, 1960, he executed a quitclaim deed covering said property, which deed was thereafter placed in the possession of the defendant, but was not recorded until May 1, 1961, the day immediately following the death of the grantor. From a time prior to the execution of said deed, and until his death, the grantor was an invalid, and resided in the house on the property in question. From early in 1959 until about three weeks before his death, the defendant, sister of Ben L. Blanchard, stayed with him in the same house, and looked after him. About three weeks before the death of Ben L. Blanchard the defendant became ill and entered a hospital in Dallas.

Although not involved in the present appeal, the record in this case reveals that the deceased grantor left a will, wherein he purported to leave his estate to the defendant, but said will omitted to mention the plaintiff, son of said Ben L. Blanchard, and the probate of the will is the subject of an appeal not yet decided at the time this appeal was perfected.

After trial of this cause to the court, without a jury, a judgment was entered in the District Court of Choctaw County, finding generally in favor of the defendant and against the plaintiff. The trial court specifically found that the deed complained of by plaintiff was executed and delivered by the grantor during his lifetime to the defendant and that at the time of the execution and delivery of said deed to the defendant the grantor was not acting under menace, duress, undue influence or fraud, and that upon said execution and delivery of the said deed the full, legal and equitable title in and to the disputed real estate became vested in the defendant. The court in its judgment proceeded to quiet title to said real property in the defendant as against all claims by the plaintiff.

Thereafter, plaintiff's motion for new trial was overruled by the trial court, and this appeal was duly perfected.

Upon the trial of the case in the court below both the defendant and her husband were permitted to testify over objections by plaintiff as to their competency. The competency of the defendant as a witness was challenged by the plaintiff as being in violation of Title 12 O.S.1961, § 384, which provides as follows:

'No party to a civil action shall be allowed to testify in his own behalf, in respect to any transaction or communication had personally by said party with a deceased person, when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where such party has acquired title to the cause of action immediately from such deceased person; * * *.'

The trial court correctly overruled the objection to the competency of defendant as a witness, for the reason that the defendant, grantee in the deed in question, was defendant and not asserting a cause of action. In Clammer v. Fullerton, Okl., 259 P.2d 823, we held that the inhibition of the statute in leveled at persons asserting a cause of action, not, as here, against persons asserting a defense to a cause of action. As in the case last cited, the defendant here does not occupy the position of one who 'has acquired title to the cause of action' from the deceased person. Defendant here was not asserting any cause of action, but was merely trying to defend herself against the cause of action asserted by the plaintiff. Watson v. Johnson, Okl., 411 P.2d 498, 503; Shaw v. Shaw, Okl., 282 P.2d 748; Berry v. Janeway, 206 Okl. 555, 245 P.2d 71.

Plaintiff asserts a violation of Title 12 O.S.1961, § 385, Sub-section 3, in that the trial court permitted defendant's husband to testify over the objection of plaintiff as to his competency. However, the cited statutory provision contains a specific exception to the effect that their husband or wife may testify concerning transactions in which one acted as agent for the other. Under the circumstances shown here the trial court correctly permitted the husband to testify as a competent witness, since it is apparent that he was acting as agent for his wife in the transaction which was the subject of his testimony, i.e., the placing of the deed in the safe deposit box which was theirs jointly. City of Bristow v. Schmidt, 170 Okl. 338, 40 P.2d 656.

Although asserting the incompetency of defendant and her husband as witnesses in the trial of this case, plaintiff's argument for reversal is based largely on portions of the testimony given by said witnesses. Under the rule laid down by this court in Fisher v. Pugh, Okl., 261 P.2d 181, plaintiff is not permitted to take such inconsistent position in respect to the testimony of these witnesses. As was stated in the case last cited:

'* * * However, plaintiff likewise predicates the claim of reversible error upon the admission of the very evidence which it is contended was prejudicially admitted.

'Thus the situation may be defined in the following manner. If the objectionable testimony could be relied upon as sufficient to destroy the presumption of delivery of the deeds to defendants at the time of execution thereof then the trial court properly could consider this evidence in reaching his determination as to whether delivery had been made. If the testimony was incompetent it was then for the trial court to determine as a matter of law whether plaintiff had discharged the burden of rebutting the presumption of delivery. Most certainly it cannot be seriously urged by plaintiff that he is entitled to have such testimony considered for one purpose, but that the admission thereof must be considered erroneous for any other purpose. If the testimony objected to is to be held erroneous for one purpose, then it cannot be considered for any other purpose. Under no circumstances can plaintiff rely upon certain testimony in an effort to establish the issue in his case and then, in the same breath assert prejudicial error based upon the selfsame evidence. * * *.'

However, as above indicated, the trial court correctly ruled that defendant and her husband were both competent witnesses, and even taking into consideration such portions of their testimony as might be thought favorable to plaintiff, in his view of the case, and we do not concur in all of his conclusions in that regard, we still find no ground for reversal.

Plaintiff argues that the finding of the trial court as to delivery of the deed with intent to pass title was against the clear weight of the evidence. We do not agree. Although there are certain circumstances which might be construed as consistent with retention of title by the grantor, even though the deed was physically in possession of the grantee, these same circumstances are not inconsistent with passage of title to the grantee.

The evidence indicates that when the deceased gave the deed to his defendant sister, he cautioned her about keeping it in a safe place. From this, plaintiff reasons that the delivery was one for safe keeping only with no intention to pass title. However, we consider such circumstances to be entirely consistent with...