Doty v. Barker

• Decision Date: 10 October 1908
• Docket Number: 15,665
• Citation: 78 Kan. 636,97 P. 964
• Parties: INA MAY DOTY et al. v. THOMAS J. BARKER et al
• Court: Kansas Supreme Court

97 P. 964

78 Kan. 636

INA MAY DOTY et al. v. THOMAS J. BARKER et al

No. 15,665

Supreme Court of Kansas

October 10, 1908

Decided July, 1908.

Error from Shawnee district court; ALSTON W. DANA, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1 DEEDS--Delivery--Evidence. "What constitutes a sufficient delivery of a deed is largely a matter of intention, and the usual test is, Did the grantor by his acts or words, or both, manifest an intention to make the instrument his deed, and thereby devest himself of title?" (Wuester v. Folin, 60 Kan. 334, 56 P. 490.)

2. DEEDS--Same. The controlling question in this case arises upon the delivery of a certain deed. The evidence is examined and found to be sufficient to support the conclusion of the district court that the deed had been duly delivered.

W. H. Holmes, T. F. Garver, and J. B. Larimer, for plaintiffs in error.

A. H. Case, and S. S. Urmy, for defendants in error.

OPINION

BENSON, J.:

This was a suit by Thomas J. Barker against his father, J. T. Barker, his brother and his five sisters, and the husband of Ina May Doty, one of the sisters. The petition in the first count, after stating the interests of the several parties, prayed for partition of eighty acres of land in Shawnee county. The second count, which alleged that Ina May was a trustee of this land for her mother, who had died, was, upon demurrer, held insufficient to constitute a cause of action. The answer of Ina May Doty and husband was a general denial, and the cause was tried upon the first count of the petition, the answers of Mrs. Doty and husband, and the answers of the other defendants setting up their interests in the land.

From the special findings it appears that on October 19, 1903, J. T. Barker, being the owner of the land in question, which was then occupied by his family as a residence, conveyed it to his wife, Alice Barker. The wife was not satisfied with this deed, and with her consent the name "Alice" was erased and the name "Ina May" was inserted as grantee, thereby conveying the land to their daughter, Ina May Barker. Thereupon the deed was executed by both husband and wife and placed of record. The daughter, Ina May, paid no consideration for the deed, and the intention of the husband and wife was to make her a trustee and that she should reconvey the land to her mother, Alice Barker. Mrs. Barker continued in the occupancy of the land with her minor children until her death, which occurred October 19, 1905. The brothers and sisters of Ina May frequently requested her to convey the land to her mother, and about two weeks before the mother died Ina May requested W. H. Holmes, the attorney who represented her mother in a suit for divorce then pending against her father, to prepare a deed to convey the land to her mother, who was then sick in a hospital and not expected to recover. Mr. Holmes drew the deed as requested, which Ina May then executed. She was about to take it to her mother, when, at the suggestion of Mr. Holmes, she left it in his care. Shortly afterward Ina May again called and asked for the deed, but Mr. Holmes made some excuse and the deed was still left with him. When asked by other members of the family why this deed was not recorded, Ina May answered that it was because she did not have the money to pay for such recording.

The first year after the conveyance to the daughter the mother farmed the land herself. The next year, 1905, she leased the farm to George Doty and Ina May Doty, his wife, Ina May having married Mr. Doty shortly after the execution of the deed. Ina May knew that the deed was made to her for the benefit and use of her mother, and did not, during her mother's life, claim to own the land, but admitted that it belonged. to her mother. She testified on the trial that she had made the deed conveying the land to her mother, and that if her mother lived the title passed, but if she died the title should not pass, because she did not want her father to have any part of it. This, she claimed, was the status of the deed at her mother's death. Shortly after her mother's death she procured the deed from Mr. Holmes, and burned it. Ina May and her husband have entered into a contract with Mr. Holmes to convey to him a three-fourteenths interest in the land.

The conclusions of law were as follow:

"(1) I find that the deed mentioned in finding No. 12 was delivered to W. H. Holmes, as the agent of Alice Barker; that delivery of said deed to him was delivery of the same to Alice Barker; and that said deed passed the title to Alice Barker.

"(2) I find that the plaintiff and the heirs are entitled to the relief prayed for, and that the land should be partitioned as the law requires.

"(3) I find the title to the land in the heirs as mentioned in the petition, and that the deed from Barker and wife to Ina May Barker should be canceled and held for naught."

The plaintiffs in error state the question to be decided thus:

"Under the rulings of the court on demurrers, the plaintiff was confined in his claim to the first count of the amended petition upon which the case was tried, and under the evidence that was admitted by the trial court the only question in controversy in the case, and the one upon which the case was tried and decided, was whether the said instrument signed by Ina May Barker was ever delivered to her mother, Alice Barker, and ever became effective in such manner as to devest the said Ina May Doty of the title to said property. . . . In the first conclusion of law the court states that the instrument signed by the said Ina May Barker was delivered to W. H. Holmes as the agent of Alice Barker, and that the delivery of said paper to him was delivery of the same to Alice Barker, and that the same passed the title to Alice Barker. There is nothing in the findings of fact to the effect that the instrument from Ina May Doty to Alice Barker was ever delivered and became effective as a deed. The plaintiffs in error claim that there is no evidence to sustain the above conclusion, and, therefore, that the judgment should have been for the plaintiffs in error."

If the conclusion that the deed was delivered and passed the title to Mrs. Barker is sustained by the evidence, the judgment...