Crenshaw v. Crenshaw

• Decision Date: 01 November 1948
• Docket Number: 7445
• Citation: 68 Idaho 470,199 P.2d 264
• Parties: CRENSHAW v. CRENSHAW et al
• Court: Idaho Supreme Court

199 P.2d 264

68 Idaho 470

CRENSHAW v. CRENSHAW et al

No. 7445

Supreme Court of Idaho

November 1, 1948

Appeal from District Court, Ninth District, Bonneville County; C. J Taylor, Judge.

Affirmed.

A. A Merrill, of Idaho Falls, for appellant.

No particular form of delivery of a deed is required. Eley v. Lyon, 60 Idaho 8 at page 13, 88 P.2d 507; Bowers v. Cottrell, 15 Idaho 221, 96 P. 936; Brummund v Romig, 59 Idaho 312, 81 P.2d 1085; Johnson v. Brown, 65 Idaho 359, especially at pages 366, 367, 144 P.2d 198; Flynn v. Flynn, 17 Idaho 147, 104 P. 1030.

The burden of proof was on defendants to show there was no valid delivery. Flynn v. Flynn, 17 Idaho 147 at page 162, 104 P. 1030; Johnson v. Brown, 65 Idaho 359 at page 367, 144 P.2d 198.

Where there are no words of limitation in a deed, parole evidence cannot be received to contradict the terms of the grant, as the grantor himself fixed them. Cell v. Drake, 61 Idaho 299 at page 305, 100 P.2d 949; Gonzaga University v. Masini, 42 Idaho 660 at page 677, 249 P. 93.

A deed is presumed to have been delivered at the date of the instrument; this presumption is strengthened if the date of acknowledgment is the same as that of the deed. (16 Am.Jur., page 657, paragraph 387).

Alvin Denman, of Idaho Falls, for respondents.

Where the issue is whether or not there was a delivery of the deed, declarations of a decedent, made both before and after the act, are admissible as an exception to the hearsay rule. Hansen v. Bear Film Co., 28 Cal.2d 154, 168 P.2d 946, 959; Schultz v. Young, 37 N.M. 427, 24 P.2d 276; Mower v. Mower, 64 Utah 260, 228 P. 911; Note 105 A.L.R. 410; Williams v. Kidd, 170 Cal. 631, 151 P. 1, 8, Ann.Cas.1916E, 703.

Where the deed is found among decedent's personal effects, the burden is on the one claiming delivery to prove such delivery. 16 Am.Jur. 657; 18 C.J. 417, 425; 26 C.J.S., Deeds, § 184, p. 593; 7 Thompson Real Property, Perm.Ed., 598.

Hyatt, Justice. Givens, C. J., Holden, J., and Baker, District Judge, concur. Miller, J., sat but did not participate in the decision.

OPINION

Hyatt, Justice.

Appellant Howard H. Crenshaw, a son of Sarah A. Crenshaw, who died July 22, 1947, brought this suit against her administrator and other heirs, to quiet in himself title to certain real property in Idaho Falls. The administrator and heirs by answer denied appellant's alleged ownership of and rights in the property and claimed ownership in her heirs, subject to the rights of of the administrator.

Trial was had on the issues joined with resulting findings for defendants and a decree adjudging that plaintiff and defendant heirs were the owners of the property by inheritance from the deceased, subject to the rights of the administrator. From such decree this appeal is taken.

A determination of this controversy hinged largely upon the delivery or nondelivery of a certain quitclaim deed signed and acknowledged by the decedent on July 12, 1945, in which appellant was named as grantee. The trial court found there was no delivery of the deed in question.

Appellant's pertinent assignments of error may be summarized as follows:

(1) The court erred in striking the testimony of appellant as to all matters of fact which occurred before the death of Sarah A. Crenshaw.

(2) The court erred in admitting, over appellant's objection, evidence of statements made by Sarah A. Crenshaw concerning the deed and the property which were received by the court on the issue of delivery.

(3) The findings and decree are not supported by, but are contrary to, the evidence in that not only was delivery established, but decedent was shown to be the holder of mere legal title with appellant at all times the actual, beneficial and equitable owner of the property.

(4) The court erred in not making more complete findings.

A brief summary of the evidence is as follows:

Appellant testified that he contracted to purchase the property in question which then consisted of vacant lots; that he paid for the same in installments and for materials which went into a small house which he constructed thereon and into which the decedent, his mother, later moved; that when the purchase price was fully paid, he had his vendors convey the property direct to his mother so she would have a place to live; that thereafter, on July 12, 1945, she deeded the property back to him by quitclaim deed prepared that day by a Mr. Johnson in the latter's office; that his mother then and there stated she was having this done so appellant would get the place at her death; that when they got home she handed him the deed; that he had the deed in his possession from 1945 to 1947 and then put it with other papers in his strong box, from which he inferred the defendant, G. L. Crenshaw, had taken the same; that he asked G. L. Crenshaw for his papers and G. L. Crenshaw replied "nothing doing"; that he never recorded the deed for fear his creditors would take the property and his mother would have no place to live.

O. L. Crenshaw, a nephew of appellant, testified that decedent told him on two occasions she had deeded the place back to appellant, and that he had seen the deed in appellant's possession.

S. T. Johnson who drew up the deed and who was called as a witness by appellant, testified that decedent told him at the time of such drafting that she was going to hold the deed until a contemplated house was built and completed on the property and appellant paid for the building and the lots; that she further stated she was going to put the deed away with her other papers; that appellant would get the place after he built the house and paid off the indebtedness on the property, at which time she would give him the deed; that decedent had given him (Johnson) a mortgage on the property for various loans he had made to her to improve the place, and which mortgage decedent paid.

Agnes Moncrief, another witness for appellant, testified she was present when decedent gave the deed to appellant on July 12, 1945, and decedent at the time stated she "got it fixed so he could get it when she died"; that decedent made it clear she wanted appellant to have the property when she died; that she stated this many times in conversations with the witness but she intended to keep the property for herself until she died.

On behalf of respondents, the evidence shows the decedent was living on the property at the time of her death in a house thereon built by the eldest son, G. L. Crenshaw; that the deed in question was found shortly after her death by G. L. Crenshaw and another brother, with her other papers in a folder which she kept between the mattresses on her bed; that decedent had paid most, if not all, of the purchase price of the lots and the materials going into the improvements; that prior to his mother's death, in various conversations with G. L. Crenshaw about the property and particularly when appellant wanted to erect a commercial garage thereon, appellant never mentioned having a deed to the property.

G. L. Crenshaw testified that he never took any papers from appellant's possession; that the decedent in various conversations had stated she wanted to fix matters so appellant would get the property when and if he met his obligations and repaid the money which she had put into the property; that she instructed him to deliver the papers after her death to appellant and after appellant had paid the bills against the property; that on one occasion, in the presence of appellant, decedent stated she assumed the responsibility for paying off the contract of purchase and had given appellant the money he used for the down payment and other payments he had made on the property; that during this conversation appellant remained silent and made no reply.

It is unnecessary for us to consider appellant's first assignment of error which involves the applicability of Chapter 12, 1947 laws, for assuming, but not admitting or deciding, he was a competent witness as to matters of fact occurring before his mother's death, we are of the opinion in view of all the evidence, including that of appellant, the trial court was correct in finding and concluding that there was no delivery of the deed during the decedent's lifetime and appellant had no interest in the property other than as an heir.

The inference can be drawn from certain parts of appellant's evidence alone that his mother did not intend the property should be his until her death and it was never her intention to part with ownership of the property, or that the deed should be effective, during her lifetime.

Statements contained in the evidence of a party constitute informal judicial admissions on his part which are accorded the quality of prima facie proof and for purposes of the action must be taken as true. Van Meter v. Zumwalt, 35 Idaho 235, at page 241, 206 P. 507.

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.

It has been said that placing custody of a deed with the grantee named therein with the understanding that it is not to be effective until death is not such delivery as will pass title. Wilson v. Wilson, 158 Ill. 567, 41 N.E. 1007, 49 Am.St.Rep. 176. Such is merely an attempt to make a testamentary disposition of property without complying with statutes regarding wills.

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