Curtiss v. Ferris
| Citation | 452 P.2d 38,168 Colo. 480 |
| Decision Date | 24 March 1969 |
| Docket Number | No. 22547,22547 |
| Parties | Beatrice K. CURTISS, Plaintiff in Error, v. Marilyn T. FERRIS and Dorothy C. Taft, Defendants in Error. |
| Court | Colorado Supreme Court |
Helmick, Evans, & Conover, Richard F. Helmick, Kenneth R. Oldham, Denver, for plaintiff in error.
Kelly & Kelly, Aurel M. Kelly, Arvada, for defendants in error.
The plaintiff in error was plaintiff in the trial court and will be referred to as Mrs. Curtiss. Defendant in error Marilyn Ferris is Mrs. Curtiss' granddaughter and will be referred to as Mrs. Ferris. Defendant in error Dorothy Taft is the daughter of Mrs. Curtiss and the mother of Mrs. Ferris, and will be referred to as Mrs. Taft.
Controversy between the parties arose out of the following factual situation: Mrs. Curtiss lived in Illinois with her husband, but upon being widowed in 1957 decided to move to Colorado to be close to her daughter and granddaughter. She was then seventy years of age. While she was still in Illinois the purchase of the house in question was consummated, and the deed to the property was made to herself and daughter as joint tenants. When she moved to Colorado she occupied the home and continued to do so to the time of trial.
On November 9, 1961, Mrs. Curtiss and Mrs. Taft executed a quit claim deed transferring the property to Mrs. Curtis and Mrs. Ferris as joint tenants. The deed was witnessed, properly notarized, and was recorded.
Action was brought by Mrs. Curtiss under R.C.P.Colo. 105 to obtain an adjudication of the rights of the parties with respect to the property. In her complaint Mrs. Curtiss alleged that the deed executed by her and Mrs. Taft to Mrs. Curtiss and Mrs. Ferris as joint tenants was void and ineffective to pass any interest in the property to Mrs. Ferris. She alleged that at the time she signed the deed she intended it to be a testamentary device operative only on her death; that at the time of the signing she did not intend to make a gift of either a present or future interest in the property; that Mrs. Ferris paid no consideration for the property; that Mrs. Taft signed the deed because of being a record owner but did not claim any ownership or vested interest in the real estate, either at the time of the signing or at any time.
At the time of the trial Mrs. Ferris did not appear but was represented by counsel. At the close of the plaintiff's case, a motion to dismiss made by defendant's counsel was granted by the court. The writ of error is directed to the court's finding 'that a presumption of delivery arose from said recording and that plaintiff produced no evidence of non-delivery'; and further 'That the evidence of plaintiff's conduct subsequent to the execution and recording of said deed clearly shows that plaintiff intended that she and defendant Marilyn T. Ferris be vested with title to said property as joint tenants with right of survivorship.'
We hold that the court misconceived and misapplied the law to the undisputed evidence and the inferences to be drawn therefrom.
It is the law in Colorado that an intent to pass a present interest is an essential element of delivery of property; and that when the evidence establishes that one does not intend to pass such a present interest in property that as between the parties there is no binding delivery even though the deed is recorded. McGuire v. Crockett, 112 Colo. 552, 151 P.2d 326; 23 Am.Jur.2d Deeds §§ 81, 82.
It is also a rule of law that when one intends a deed to be operative only on grantor's death the grantor may have the deed set aside as against the grantee. Larison v. Taylor, 83 Colo. 430, 266 P. 217; Henneberry v. Henneberry, 164 Cal.App.2d 125, 330 P.2d 250; 23 Am.Jur.2d Deeds § 91.
Another rule of law applicable to this case is that prima facie evidence of delivery that arises from recording may be rebutted by evidence showing a lack of intent to transfer a present interest in the property. McGuire v. Crockett, Supra. The conclusions of law of the trial court are clearly contrary to all of the above applicable principles of law.
Some of the evidence pertinent to the question of intent of the grantors, Mrs. Curtiss and Mrs. Taft, is shown by the following questions and answers by Mrs. Curtiss:
'Q. Did you intend for her (Marilyn Ferris) to have any interest in your home during your life?
A. None, whatsoever; and she knew it, her husband knew it, I knew it, the family all knew it.
Q. Mrs. Curtiss, at the time you signed that...
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Baker v. Pattee
...Where a deed is executed with no intent to transfer a present interest, it will be invalidated by a court in equity. Curtiss v. Ferris, 168 Colo. 480, 452 P.2d 38 (1969). This Court has held that a conveyance is valid only upon delivery of a deed with present intent to transfer, Givan v. La......
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Jacquez v. Jacquez
...by the record, it is binding on appeal. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). Defendant's reliance on Curtiss v. Ferris, 168 Colo. 480, 452 P.2d 38 (1969), in which the grantor denied any intent to make a present delivery, is misplaced. Here, in contrast to Curtiss, the testimo......
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Sims v. Sperry, 90CA1064
...Without such intent, the grantor's delivery is not binding, even if the deed is subsequently recorded. Curtiss v. Ferris, 168 Colo. 480, 452 P.2d 38 (1969). Here, contrary to Sperry's assertion, there was evidence before the court that the Simses did not intend to pass a present interest to......
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Gross v. Gross
...recording. No independent third party testimony exists to corroborate the father's testimony regarding his intent. See Curtiss v. Ferris (1969), 168 Colo. 480, 452 P.2d 38. The undisputed evidence in the record establishes that the father intended to avoid probate. As to his property, he ch......
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Suggestions for the Adoption and Use of Escrows
...112 Colo. 117, 146 P.2d 891 (1944); Barnes v. Spangler, supra; Thuet v. Thuet, 128 Colo. 54, 260 P.2d 604 (1953); Curtiss v. Ferris, 168 Colo. 480, 452 P.2d 38 (1969); Griffith v. Sands, 84 Colo. 456, 271 P. 191 (1928); Hammond v. Hammond, 91 Colo. 327, 14 P.2d 1076 (1932); Little v. Little......