Boteilho v. Boteilho, 5780

• Decision Date: 17 May 1977
• Docket Number: No. 5780,5780
• Citation: 564 P.2d 144,58 Haw. 40
• Parties: Walter BOTEILHO, Plaintiff-Appellant, v. Janet BOTEILHO, Edward Boteilho, Alfred Boteilho, and Nelson Boteilho, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 144

564 P.2d 144

58 Haw. 40

Walter BOTEILHO, Plaintiff-Appellant, v. Janet BOTEILHO, Edward Boteilho, Alfred Boteilho, and Nelson

Boteilho, Defendants-Appellees.

No. 5780.

Supreme Court of Hawai'i.

May 17, 1977.

Syllabus by the Court

1. A party seeking to enforce an oral contract to convey real property must establish its terms by clear and convincing evidence.

2. If part performance is relied upon to remove the oral agreement from the operation of the statute of frauds, clear and convincing proof of performance in pursuance of the alleged agreement must be adduced by the party seeking to enforce it.

3. A contract to be enforceable must be certain and definite as to its essential terms.

4. The delivery of a deed is essential to its validity, for it takes effect only from the time of its delivery. It is delivery which gives the instrument force and effect.

5. The fact of recordation of an instrument has relinquished all right of control over the of delivery, although it is not conclusive evidence thereof.

6. Where the grantor intends that the deed should become presently effective to convey title, and by her words or conduct has relinquished all right to recall or to document, reserving no right to recall or to alter it, delivery is deemed to be complete.

7. A manual transfer of the document to the grantee, while the best evidence of delivery, is not an absolute requirement. Delivery may be actual or constructive.

Frank D. Padgett, Richard L. Rost, Honolulu (Padgett, Greeley & Marumoto, Honolulu, of counsel), for plaintiff-appellant.

Steven K. Christensen, Hilo, for defendants-appellees.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

MENOR, Justice.

This action is in the nature of a suit for specific performance of an alleged oral agreement to convey real and personal property to the plaintiff. The cause was tried by the court without a jury. The plaintiff appeals from the judgment in favor of the defendants.

The plaintiff-appellant, Walter Boteilho, is the son of Janet Boteilho, one of the defendant-appellees herein. The other defendant-appellees are Edward Boteilho, Alfred Boteilho, and Nelson Boteilho, brothers of the appellant and sons of Janet Boteilho.

We address ourselves to two principal issues in this appeal. First, whether the trial court erred in holding that the appellant had failed to prove that a valid enforceable contract existed between himself and appellee Janet Boteilho. Second, whether the trial court erred in finding that there had been no effective delivery of the June 23, 1972 deed from the appellee Janet Boteilho to the appellant.

I.

The appellant, Walter Boteilho, alleged in his complaint that his mother, Janet Boteilho, had promised that if he would help her in operating her ranch in the Kula area on the Island of Maui she would, at the time of her death, leave him an equal share of her lands and, in addition, all of her cattle. He further alleged that in reliance upon her promise, he did assist his mother with her ranching operations; but that sometime in 1969, Janet, Boteilho began to dispose of her lands and her cattle, and made no effort in the process to comply with her earlier promise to the appellant.

The trial court found that 'this promise, if indeed made, was vague and there are no other details disclosed,' and concluded that '(t)here is insufficient evidence to show an effective oral contract between Janet and Walter Boteilho for him to receive any portion of her lands in return for his managing the ranch from 1952 to 1972.'

To be enforceable a contract must be certain and definite as to its essential terms. Francone v. McClay, 41 Haw. 72 (1955). A party seeking to establish a parol contract to convey real property must prove its existence and its terms by clear and convincing evidence. Coelho v. Fernandez, 46 Haw. 578, 384 P.2d 527 (1963); Opunui v. Kauhi, 8 Haw. 649 (1882). Part performance to remove it from the operation of the statute of frauds requires a similar quantum and quality of proof. Doms v. Barrow, 29 Wash.2d 366, 187 P.2d 627 (1947). The trial court concluded that the appellant had failed to meet his burden of providing the existence and terms of the alleged oral agreement. We agree. The finding of fact by the trial court that Janet Boteilho's 'promise, if indeed made, was vague' and lacking in essential details was not clearly erroneous. H.R.C.P. Rule 52(a).

II.

In 1969, attorney Wendell F. Crockett prepared a series of deeds for Janet Boteilho whereby she conveyed various parcels of her property to her children, while reserving to herself a life estate therein. One of these was a deed to the appellant conveying to him Lots 3-A, 3-B, and 3-C, being portions of Lot B, Grant 2817 and Grant 965, Boteilho Estate 3, situated at Omaopio, Kula, Maui, Hawaii. These documents were executed by Mrs. Boteilho on November 24, 1969. They, were retained by attorney Crockett and, pursuant to instructions from the appellant who was then acting in behalf of his mother, they were never recorded.

Early in 1972, the appellant's brother, Nelson Boteilho, who had returned to Maui the previous year, visited Mr. Crockett's office to review these 1969 deeds. Thereafter, a family conference was convened at which the appellant, his brothers, and his sister were present. At that meeting it was decided that in order to avoid estate taxes, Janet Boteilho should execute new deeds without reserving a life estate to herself. Accordingly, sometime in May 1972, Nelson Boteilho, on behalf of his mother, instructed attorney Crockett to prepare a new series of deeds without the reservations. Mr. Crockett prepared the documents as directed, and these were executed by Janet Boteilho on June 23, 1972. The newly executed deed to the appellant conveyed to him the same Lots 3-A, 3-B. and 3-C, but without the reservation of a life estate to his mother.

The appellant was not present when Janet Boteilho executed these various documents. Subsequently, however, on June 27, 1972, Mr. Crockett wrote to the appellant advising him that his mother ahd signed a deed conveying to him Lots 3-A, 3-B, and 3-C. None of the deeds in this series of deeds executed by grantor on June 23, 1972, were ever recorded. As of the time of trial the deed to the appellant had not been located. Attorney Crockett explained that he had received later instructions from Nelson Boteilho to prepare still another series of deeds covering the same parcels of land described in the deeds of June 23, 1972, and that he had probably discarded the appellant's deed after he had scribbled certain changes on it preparatory to drafting the new series of deeds. The new deed to the appellant conveyed to him Lots 3-A and 3-B, but not Lot 3-C. There is no indication in the record that Nelson Boteilho was expressly authorized by Janet Boteilho to arrange for the modification; nevertheless, the modified deed to appellant was in fact executed by Janet Boteilho on July 31, 1972. It, too, was never recorded. Still later, this document was also partially defaced by attorney Crockett, and another deed to the appellant was drawn to replace it. This last deed merely changed the lot designations from '3-A and 3-B' to '1 and 2.' This instrument was never signed by Janet Boteilho.

The appellant contends that the deed of June 23, 1972, effectively conveyed to him Lots 3-A, 3-B, and 3-C, and that any attempted modification of the conveyance thereafter, or the loss or destruction of the document, could not alter the effect of the transfer.

The delivery of a deed is essential to its validity, for it takes effect only from the time of its delivery. Hewahewa v. Lalakea,27 Haw. 544 (1923); Victor v. Pili, 26 Haw. 658 (1922). It is delivery which gives the instrument force and effect. The issue, therefore, is whether there was a delivery to the appellant, as grantee, of the deed of June 23, 1972. The trial court found that 'there was no effective, legal delivery of any of the deeds that defendant Janet executed in favor of the plaintiff (appellant) Walter.' We hold that under the circumstances of this case, the trial court erred.

The trial court apparently considered the absence of recordation in this case to be the determinative consideration. ¹ In its findings of fact the trial court noted:

Attorney Crockett drafted four successive deeds for grantor Janet to grantee Walter, each time making slight modifications. Janet executed the first three of these deeds but not the last one. It is apparent that attorney Crockett considered himself as Janet's attorney; that he was following Janet's instructions, as conveyed to him by her agent; and that he was not to record any deed until so instructed.

However, the finding that Mr. Crockett 'was not to record any deed until so instructed' is not supported by the evidence and is clearly erroneous. The three principals most directly involved with these 1972 documents had no clear recollection, at time of trial, of the relevant circumstances surrounding these transactions. Mr. Crockett was uncertain in his testimony. His only contacts with Janet Boteilho had been the occasions when she visited his office to execute the various documents. Requests for their preparation were either made by the appellant (in 1969) or by Nelson Boteilho (in 1972). Nelson Boteilho, who was present when it was signed by his mother, had no clear recollection of the June 23, 1972 deed, and Janet Boteilho insisted that she had made no conveyances to the appellant in 1972. The only possible support for this particular finding was Mr. Crockett's responses to the following questions put to him by the appellees' counsel:

Q What about the deeds you drew in 1972 at behest of Helson Boteilho? You retained those, did you not?

A Yes, I retained those because the main, oh, they were retained-was after we prepared those documents, why, Nelson discovered that they hadn't gotten the proper authorization for ...