Bloor v. Bloor

• Decision Date: 09 January 1919
• Docket Number: 14932.
• Citation: 177 P. 722,105 Wash. 110
• Court: Washington Supreme Court
• Parties: BLOOR v. BLOOR et al.

177 P. 722

105 Wash. 110

BLOOR v. BLOOR et al.

No. 14932.

Supreme Court of Washington

January 9, 1919

Department 1.

Appeal from Superior Court, San Juan County; W. H. Pemberton, Judge.

Suit by Isabella K. Bloor against Loren C. Bloor and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded with directions to dismiss.

Ernest B. Herald, of Seattle, for appellants.

Joiner & English, of Anacortes, for respondent.

CHADWICK J.

On April 24, 1916, J. T. Bloor and his wife, Isabella K. Bloor executed several mutual deeds purporting to convey, the one to the other, all of the community property then owned by them. The deeds, when executed, were given to, or rather left with, O. J. Bruhns, a justice of the peace, 'to keep.' Mrs. Bloor testifies, and of course it must have been so understood, that the deeds were to be kept until the death of one of the parties, and the appropriate deeds were then to be put on record or delivered to the survivor. It was the intention of Mr. Bloor to arrange the community affairs so as to avoid the expenses of an administration in the event of his wife's death, and to save his wife the like trouble and expense in the event that she should survive him. He had inquired among some of his neighbors and friends, and was advised that the better and least expensive way to dispose of his estate would be to prepare 'community deeds.' After the death of Mr Bloor, the respondent went to Mr. Bruhns, and with him to the auditor's office, and filed the deeds from the deceased husband to the respondent for record. The children of Mr. Bloor by a former wife, the appellants here, having murmured against the title, respondent brought this action to quiet her title to all of the lands described in the deeds.

There is a serious question in the minds of some of the judges as to whether a delivery such as the law damands in cases of this kind was ever had, but we have decided to treat the deeds as if they were in fact delivered, within the rule of Nichols v. Oppermann, 6 Wash. 618, 34 P. 162, Atwood v. Atwood, 15 Wash. 285, 46 P. 240, and Showalter v. Spangle, 93 Wash. 326, 160 P. 1042, because we are conscious of the fact that a custom has grown up among the people of this state to fix the status and disposition of community property in a testamentary way by the execution of mutual deeds, the one or the other to be delivered to the survivor in case of death. We had a similar state of facts in Eves v. Roberts, 96 Wash. 99, 164 P. 915, in that deeds had been executed with like intent. In that case we held that there had been no delivery, but we did raise and leave unanswered the question that occurs in this case.

It is fundamental that a deed will not operate as a conveyance unless there is a present intention to part with the title, although possession may be withheld for a time certain or during the lifetime of the grantor.

'It is essential to the delivery of a deed that there be a giving by the grantor and a receiving by the grantee with a mutual intention to pass a present title from the one to the other. It may be made through the hands of an agent, and it may be accepted through the hands of an agent; but there must be a mutual intention presently to pass the title. This mutual intention is the cardinal requisite. * * * This is as essential to a deed of gift as to any other. It is elementary that a deed cannot perform the functions of a will, hence cannot be effectually delivered after the grantor's death. When, however, the grantor delivers the deed to a third person in escrow, to be held until the grantor's death and then delivered to the grantee, the grantor retaining no dominion or control over it, the delivery is valid, and an immediate estate is vested in the grantee at the date of the delivery in escrow, subject to the grantor's life estate.' Showalter v. Spangle, supra.

It is not enough that a deed be put in safe-keeping. Atwood v. Atwood, supra. It must be put beyond the dominion and control of the vendor, so that as between all parties except purchasers for value and in good faith the title is presently vested, and it can be said as a matter of law that it has passed out of the one hand into the other, subject only to the grantor's life estate, which equity will preserve pending the contingency upon which the deed is to be put in the hand of the grantee for record, and with right of immediate possession.

Deeds to community property by husband to wife, and by wife to husband, in anticipation of death, are necessarily intended to operate as testamentary bestowals of property. Were the separate property of the grantor involved, or had member of the community made a deed to a third party, no particular complication would arise, although the question of delivery would occur in almost every case, for those who have direct or collateral interest in the property of deceased persons, and in virtue of their interest have incubated the vice of great expectations, are prone to question the disposition of property where their expectations have not been met.

But the conveyance of community property by the method here employed raises complications which are not so easy of solution. For although a husband may now deed directly to the wife and the wife to the husband (Rem. Code, § 8766), if deeds to the same property are executed simultaneously, they must of necessity negative one the other, for they must take effect as of the date they are executed if they are effective at all. We said in Eves v. Roberts, supra:

'Had they been filed for record at the same time, the one would have canceled the other.'

The leaving of such deeds with a third party, the one to become effective, and the other a nullity, in the order of time, cannot change the legal effect of the instruments, or give them better standing than if they were executed, delivered, and filed for record on the same day. For it is not the future effect, but the present intention, that sustains deeds of gift or of testamentary character. Therefore it must be held that mutual deeds to the same property cancel the subject-matter, for it cannot be said that one having an entire title--we understand that community property is held by the half and by the whole, subject to division and partition in case of death---can convey by one deed and take by another in the same transaction, and establish a new relation to, or change the character of, the title.

Deeds made and delivered, or delivered, although it be to a third party, and put beyond the control of the grantor, are sustained solely upon the ground that they are present conveyances. This result is impossible, where husband and wife execute mutual deeds to community property, for from the very nature of things one of the two deeds, they being made the one in consideration of the other, must fail and become a nullity, for it is not within the foreknowledge of the parties which one may die leaving the other surviving.

The common law, so far as it throws light upon our present inquiry, the decisions of this and other courts, and our statutes, compel the holding that this manner of disposing of community property in anticipation of death cannot be sustained, for the transaction is tinctured by an element of weakness which goes to the very marrow of the transaction, for, notwithstanding the written documents, the intention of the parties at the time is that a part of their contract must fail; otherwise, they would not have agreed, as of necessity they must have agreed, that one half of their contract should in the end be a nullity as of the time of its execution.

This same question has arisen in the state of California. In Kenney v. Parks, 125 Cal. 146, 57 P. 772, the deeds were delivered to a certain bank. The court said:

'Was the delivery of the husband's deed to the cashier sufficient to pass the title to the wife? Upon mature consideration we have arrived at the conclusion that no title whatever passed. While it is not so expressed in the agreement, yet the intention of both parties is plain that the party surviving should have his or her deed returned in case the other party should die, and that no title to the property described in the deed of the party surviving should vest. In other words, the plaintiff having survived her husband, her deed is to be returned to her and the title to her property remain vested in her. Under the laws of this state, the title to the property vested presently when the deeds were delivered, or did not vest at all. Yet as to the plaintiff's property it is apparent that no title ever vested in the husband under her deed. Such being the case as to her property, it is most difficult to see how title to his property by his deed, ever vested in her. The general principles of law involved in this case are quite fully discussed in Bury v. Young, 98 Cal. 446 [33 P. 338, 35 Am. St. Rep. 186]. In the decision of that case may authirities are cited supporting the conclusion declared, and with that conclusion we are entirely satisfied. It is there said: 'The essential requisite to the validity of a deed transferred under circumstances as indicated in this case is that when it is placed in the hands of a third party it has passed beyond the control of the grantor for all time.' In the present case, by the agreement of the grantor and grantee, it was understood that the grantor's deed was to be returned to him upon the happening of a certain event, to wit, the death of the other party. And at this time it may be assumed that the plaintiff's deed has been

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