Cox v. McLean
| Decision Date | 05 August 1936 |
| Docket Number | 6428 |
| Citation | 268 N.W. 686,66 N.D. 696 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Burleigh County; William H. Hutchinson Judge.
Suit by Gordon V. Cox, as executor of the last will and testament of Nettie B. Friederici, deceased, against Cora S. McLean. Judgment for plaintiff, and defendant appeals.
Reversed.
Syllabus by the Court.
1. A certificate of acknowledgment of the execution of a deed regular on its face, is sufficient proof of the execution of the deed.
2. Where a grant of land, made by deed and duly executed, is produced by the grantee at the trial and offered in evidence, it is presumed to have been delivered at its date, and such date is presumed to be the true date.
3. Before one may overcome the presumption that a deed in the possession of the grantee was delivered to and accepted by the grantee, clear and convincing evidence must be produced to rebut the presumption of delivery of the deed to the grantee and the ownership of the instrument in the grantee.
4. Where a deed has been duly executed and is in the possession of the grantee, the presumption of ownership of the instrument and of delivery to the grantee is not overcome because of failure to record the instrument for ten years after its execution.
Charles L. Crum, for appellant.
A deed produced at the trial and offered in evidence by the grantee is presumed to have been delivered to such grantee on the day of its date and its date is presumed to be the true date. Leonard v. Fleming, 13 N.D. 629, 102 N.W. 308.
The doctrine of constructive fraud, as applied to the case of the merely negligent failure of a grantee to record his conveyance, does not render the deed itself void, but only estops the grantee from claiming his rights under the deed, to the prejudice of the creditors of the grantor. Smith v. Cleaver, 25 S.D. 351, 126 N.W. 593.
All parties to a deed, and those claiming through them, are bound by the recitals in it legitimately appertaining to the subject matter of it. 21 C.J. 1088, para. 68.
A general warranty of title estops the grantor and his privies from setting up, as against the grantee and those claiming under him, a title subsequently acquired by the grantor or his privies. 10 R.C.L. 678.
The occupation of land by the grantor, after conveyance made, is presumed to be under, and in subordination to, the legal title held by his grantee, for he is estopped by his deed from claiming that his holding is adverse. 1 R.C.L. 751; 10 R.C.L. 678.
H. F. O'Hare, for respondent.
The question of whether there has been a delivery of the deed being largely one of intent to be determined from the surrounding facts and circumstances is admissible as bearing upon a contested question as to delivery. 18 C.J. 431.
Generally, as a deed does not show upon its face a delivery, evidence thereof must ordinarily come from without. Hence parol evidence thereof must necessarily be admitted when the question of delivery arises. Tumlin v. Tumlin, 195 Ala. 457, 70 So. 254; Hathaway v. Cook, 258 Ill. 92, 101 N.E. 227; Stanton v. Freeman, 19 Cal.App. 464, 126 P. 377; Walker v. Warner, 31 App. (D.C.) 76; McFall v. McFall, 136 Ind. 622, 36 N.E. 517.
Where the delivery of a deed is placed in issue, the burden of proof rests upon the party asserting delivery; but when the circumstances are such as to create a presumption of delivery, the burden of overcoming such presumption rests upon the person who denies delivery. 18 C.J. 413.
There is no presumption of delivery of a deed where it is not recorded until long after its date. 18 C.J. 419; Bouvier-Iaeger Coal Land Co. v. Sypher, 186 F. 644; Cussack v. Tweedy, 126 N.Y. 81, 26 N.E. 1033.
How far the intention to deliver a deed is involved in the giving of possession of the land should be gathered from the relation of the parties to each other, the conduct and declarations of each, and all the facts and circumstances in evidence. 8 R.C.L. 1002; Byars v. Spencer, 101 Ill. 429, 40 Am. Rep. 212; Benneson v. Aiken, 102 Ill. 284; Taft v. Taft, 59 Mich. 185, 26 N.W. 426; Schuffert v. Grote, 88 Mich. 650, 50 N.W. 657.
The presumption from the recording of a deed is not conclusive, and may be rebutted by evidence showing that no delivery has been made. 8 R.C.L. 1004; Napier v. Elliott, 146 Ala. 213, 40 So. 752; Chambers v. Chambers, 227 Mo. 262, 127 S.W. 86; Blight v. Schenck, 10 Pa. 285, 51 Am. Dec. 478; Story v. Brown, 98 Ga. 570, 25 S.E. 582; Hotaling v. Hotaling, 193 Cal. 368, 224 P. 455.
A deed may be deposited with the grantee, or handed to him for any purpose other than as a deed of the grantor, or as an effective instrument between the parties, without becoming at all operative as a deed. McClintick v. Ellis (Okla.) 209 P. 403; 1 Devlin on Deeds, § 271; Johnson v. Craig, 37 Okla. 378, 130 P. 581; McKinley v. Bluford, 81 Okla. 166, 197 P. 430; Nalley v. First Nat. Bank, 135 Or. 409, 293 P. 721, 76 A.L.R. 625.
Presumption of delivery may be rebutted by proof of a contrary intention or by acts and declarations from which contrary presumption arises. Pemberton v. Kraper, 289 Ill. 295, 124 N.E. 611; Patterson v. Knowe, 353 Ill. 156, 188 N.E. 173; Van Guilder v. Van Guilder, 100 Ky. 142, 123 A. 19; Cummings v. Eiseler (Cal. App.) 232 P. 723; Scott v. Cornell, 295 Ill. 508, 129 N.E. 94; Allen v. Leet, 217 N.Y.S. 274, 127 Misc. 662.
The question of the delivery of the deeds is a question of intention. Magoffin v. Watros, 45 N.D. 406, 178 N.W. 135; Black v. Blac, 58 N.D. 501, 226 N.W. 489.
The burden of proof of delivery is on the grantee. Perry v. Erdelt, 59 N.D. 741, 231 N.W. 889; Hunt v. Holmes, 64 N.D. 389, 252 N.W. 379.
Burr, J. Morris, J., and Englert, Miller and Gronna, Dist. JJ., concur. Burke, Ch. J., and Christianson and Nuessle, JJ., deeming themselves disqualified, did not participate, Hon. M. J. Englert, Judge of the First Judicial District, Hon. A. J. Gronna, Judge of Fifth Judicial District, and Hon Harvey J. Miller, Judge of the Sixth Judicial District, sitting in their stead.
The plaintiff, as the executor of the last will and testament of Nettie B. Friederici, who died February 5, 1929 seeks to quiet title to the real estate involved and to recover for its use and occupation. The defendant claims ownership by virtue of a deed executed by Nettie B. Friederici February 5, 1912, and recorded March 6, 1922. Upon the death of the grantor the defendant took possession of the property and has remained in possession ever since. The court found that the grantor never delivered the deed to the defendant "and never intended to make delivery or to part with the title to the premises described in the deed."
There is no question about the execution of the deed. The certificate of acknowledgment is in the form prescribed by § 5574, Subdivision 1, of the Code (Comp. Laws). A certificate of acknowledgment, regular on its face, is presumed to state the truth, and proof to overcome it must be very strong and convincing. Severtson v. Peoples, 28 N.D. 372, 148 N.W. 1054. No attempt is made to impeach the execution of the deed.
The deed contains the customary provision, that the grantee "grants" unto the defendant the property described, "To have and to hold the same . . . forever," and that the grantor will warrant and defend "the above bargained and granted lands and premises in the quiet and peaceable possession of said party of the second part, her heirs and assigns, against all persons lawfully claiming or to claim the whole or any part thereof. . . ."
There is no testimony regarding delivery of the deed except the testimony of L. W. McLean, the husband of defendant and the only surviving witness to the deed. The defendant was prevented from testifying on this point because of transaction being with the decedent. McLean testified that after the deed was witnessed and acknowledged, it was handed to the defendant; that when the deed was delivered to her the defendant told the grantor He stated the grantor said she would and that the defendant told her "she would be privileged to live in the place if she wished to or with us, whichever she preferred." That she did live with the defendant for many years is well sustained by the evidence. There is nothing in the record whatever to show that this deed was ever out of the possession of the defendant from that time on.
The plaintiff contends that the facts and circumstances existing from the time of the execution of the deed show there never was any intention on the part of the grantor to deliver the deed.
After the execution of the deed the grantor rented the property from time to time to various tenants, collected the rents, ordered and paid for repairs, and otherwise exercised dominion over the property.
On October 1, 1928 the grantor herein made a will wherein she devised one of the lots involved to the husband of the defendant, and the remaining two lots to the defendant. In this will L. W. McLean was appointed executor.
On January 17, 1929 the grantor executed a second will wherein she devised one lot to Lester W. McLean, one lot to the defendant herein, and the other lot to Mrs. W. M. Scott, in whose home she was living at that time.
On March 11, 1929, when the second will was being offered for probate, McLean filed a petition against...
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