Brett v. Dooley, 8623

• Decision Date: 02 July 1958
• Docket Number: No. 8623,8623
• Citation: 327 P.2d 355,80 Idaho 237
• Parties: George R. BRETT and Beryl D. Brett, husband and wife, Plaintiffs-Respondents, v. Earl F. DOOLEY and Mary M. Dooley, husband and wife, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 355

327 P.2d 355

80 Idaho 237

George R. BRETT and Beryl D. Brett, husband and wife, Plaintiffs-Respondents, v. Earl F. DOOLEY and Mary M. Dooley, husband and wife, Defendants-Appellants.

No. 8623.

Supreme Court of Idaho.

July 2, 1958.

Henry J. Felton, Warren Felton, Lewiston, for appellant.

Paul C. Keeton, Lewiston, for respondent.

McQUADE, Justice.

Respondents brought this action to set aside and vacate a deed which had been filed in the county recorder's office of Nez Perce County, State of Idaho. The trial court found the facts to be that the grantors did not intend delivery of the deed to the grantees until the purchase price had been paid, and entered a judgment declaring the deed null and void.

Fay D. and Frances White, husband and wife, sold the realty in dispute to Francis D. and Mary Astley under the terms of a certain contract. Thereafter, Francis D. and Mary Astley, husband and wife, entered into a contract to sell Earl F. and Mary Margaret Dooley, husband and wife, the property, located in Lewiston Orchards, Nez Perce County, State of Idaho. The latter purchase price for the premises was $5,250, to be paid $50 down and $50 per month. Mrs. Dooley caused a warranty deed and a contract to be prepared at the request of Mrs. Astley. The warranty deed and contract were prepared simultaneously, and were both executed on the same day by the Astleys. Although the contract was to be deposited with the American Bank and Trust Company of Lewiston, Idaho, as escrow agent, Mrs. Astley retained the contract and accepted the payments. The warranty deed was not deposited with the designated escrow agent, but was mailed by Mr. Astley to the Dooleys. On May 9, 1953, Mr. and Mrs. Astley executed a second warranty deed and assignment of their interest in the White-Astley escrow contract in favor of Mary Astley's son, George R. Brett, and his wife, Beryl D. Brett. Soon thereafter Mrs. Dooley wrote Mr. Brett, saying they would send subsequent payments to him in compliance with Mrs. Astley's wishes and that they understood the Astleys had transferred their equity to the Bretts.

Brett corresponded with the Dooleys on May 31, 1953, relative to back payments due under the escrow contract. In a letter dated June 4, 1953, Mrs. Dooley, in answer to Brett, acknowledged the contract and expressed concern about payments for which she had not received receipts from Mrs. Astley. In August of 1953, the Dooleys and the Bretts agreed as to the balance due under the contract, and further agreed that Mr. Glenn W. Hall would be the escrow holder. From August, 1953, until January, 1956, the Dooleys made payments to the escrow holder.

In January, 1956, the Dooleys filed with the county recorder their deed from the Astleys. In February, 1956, the Dooleys commenced a bankruptcy proceeding, and listed the amount due under the contract as an unsecured claim. The Bretts were not cognizant of the deed held by the Dooleys until advised by the escrow holder that it had been recorded. At the trial, the Dooleys' explanation of the deed was that Mrs. Astley made them a gift of the Astley equity in the property.

Appellants, the Dooleys, complain in general terms about the introduction of the contract and statements of the deceased, Mary Astley, pertaining to the transaction and which were admitted in evidence.

This Court, in Crenshaw v. Crenshaw, 68 Idaho 470, 199 P.2d 264, 267, stated:

'The trial court committed no error in admitting evidence of the statements and conduct of Sarah A. Crenshaw before and after the making of the deed in question, in as much as the essential thing to be determined was whether the deed was ever delivered. The general rule applicable here has been stated in Whitlow v. Durst, 20 Cal.2d 523, 127 P.2d 530, 531, as follows:

"When intent is a material element of a disputed fact, declarations of a decedent made after as well as before an alleged act that indicate the intent with which he performed the act are admissible in evidence as an exception to the hearsay rule, and it is immaterial that such declarations are self-serving. Thus, in cases involving the delivery of deeds, declarations of the alleged grantor made before and after the making of the deed are admissible upon the issue of delivery, and it is immaterial that such declarations are in the interest of the party producing them.' (Citing cases.)'

It was also said by this Court in the Crenshaw case, supra:

'Before a deed can operate as a valid transfer of title, there must be a delivery of the instrument and it must be effected during the life of the grantor. Weuster v. Folin, 60 Kan. 334, 56 P. 490. See also Gonzaga University v. Masini, 42 Idaho 660, 249 P. 93.

"The mere placing of a deed in the hands of the grantee does not necessarily constitute a delivery. The question is one of intention whether the deed was then intended by the parties to take effect according to its terms'. Weigand v. Rutschke, 253 Ill. 260, 97 N.E. 641, 642.'

The appellants are adamant in...