Emmons v. Sanders

• Decision Date: 15 July 1959
• Citation: 217 Or. 234,342 P.2d 125
• Parties: C. S. EMMONS, Administrator of the Estate of Fred G. Sanders, Deceased, Fidelia Johnston and Melvin G. Johnston, Respondents, v. Rosemary SANDERS and James G. Daniels, Guardian of the Estate of Rosemary Sanders, Incompetent, Appellants.
• Court: Oregon Supreme Court

Page 125

342 P.2d 125

217 Or. 234

C. S. EMMONS, Administrator of the Estate of Fred G Sanders, Deceased, Fidelia Johnston and Melvin G Johnston, Respondents, v. Rosemary SANDERS and James G. Daniels, Guardian of the Estate of Rosemary Sanders, Incompetent, Appellants.

Supreme Court of Oregon, Department 1.

Argued and Submitted June 11, 1959.

Decided July 15, 1959.

Charles D. Burt, Salem, argued the cause for appellants. On the brief was Charles W. Creighton, Jr., Salem.

Sam Kyle, Albany, argued the cause for respondents. On the brief were Willis, Kyle & Emmons, Albany.

Before McALLISTER, C. J., and ROSSMAN, O'CONNELL and CRAWFORD, JJ.

O'CONNELL, Justice.

In this suit the plaintiffs claim the title to two parcels of land which had been conveyed to the defendant, Rosemary Sanders and Fred Sanders now deceased. The deed to one of the parcels named as grantees 'Fred G. Sanders and Rosemary Sanders, his wife,' and the deed to the other parcel ran to 'Fred G. Sanders and Rosemary Sanders, husband and wife.' Prior to the execution of one of the above described deeds and after the execution of the other the grantees had entered into a marriage ceremony in Oregon. The grantees were first cousins. ORS 106.020 declares that marriages between first cousins are void.

The defendants contend that the effect of the conveyances was to create a tenancy by the entirety in each instance and that upon the death of Fred G. Sanders the defendant Rosemary Sanders became the sole owner of the two parcels and that the court erred in admitting into evidence the marriage certificate of Fred and Rosemary, dated April 18, 1946; in admitting evidence that Fred and Rosemary were first cousins; and in holding the marriage void. The plaintiffs contend that since the grantees were not husband and wife the conveyances could not have the effect of creating a tenancy by the entirety but would create only a tenancy in common and that an undivided one-half interest in the two parcels passed by descent to Fidelia upon the death of her father, Fred G. Sanders.

In support of their position the defendants rely upon Twigger v. Twigger, 1924, 110 Or. 520, 223 P. 934, 935. In that case a conveyance was made by a deed naming as grantees 'F. C. Twigger and Martha Twigger, husband and wife.' F. C. Twigger had married Martha less than six months after he had obtained a decree of divorce from his first wife. After the death of F. C. Twigger his son claimed an undivided one-half interest in the property conveyed on the ground that his father and Martha having entered into the marriage ceremony before the expiration of six months after the divorce decree the marriage was void under the law then in effect, and since the grantees were not husband and wife they did not take as tenants by the entirety but only as tenants in common. The court rejected the son's claim resting the case on two alternative grounds; first, that a curative statute had validated the marriage thus making the grantees husband and wife at the time of the conveyance, and secondly, that the recital in the deed that the grantees were husband and wife was binding upon the son as successor in interest to his father.

In the case at bar the defendants contend that this second ground for the decision in Twigger v. Twigger, supra, is controlling and that Rosemary Sanders is entitled to the entire estate as the surviving grantee of an estate by the entirety. It is necessary, therefore, to examine the rationale of Twigger v. Twigger, supra, and to determine whether it should be applied in the present case. In holding that the recital was conclusive upon F. C. Twigger's son, the court relied upon what is now ORS 41.350 which reads in part as follows:

'The following presumptions, and no others, are conclusive:

* * *

* * *

'(3) The truth of the facts recited from the recital in a written instrument, between the parties thereto, their representatives or successors in interest by a subsequent title; but this rule does not apply to the recital of a consideration.'

The statute does not expressly place any limitations upon the conclusive effect of a recital except the designation of the class of persons with respect to whom it operates. However, the court in the Twigger case relies upon cases from other jurisdictions where it has been held that recitals in deeds are binding upon the parties and their successors in interest on the theory of estoppel, from which it may be inferred that the court regarded the statute as an expression of this common law principle.

There is real likelihood that the statute was drafted with this principle in mind. As we have recently observed, our statutes on evidence strongly reflect the influence of Greenleaf on Evidence. See Cook v. Michael, Or., 330 P.2d 1026.

There is a reasonable basis for assuming that ORS 41.350 also reflects this influence. In its discussion of conclusive presumptions 1 Greenleaf on Evidence (Redfield Ed.) p. 27 states:

'Estoppels may be ranked in this class of presumptions.'

Relating the idea more specifically to recitals it is said at page 28:

'If it be a recital of facts in a deed, there is implied a solemn engagement, that the facts are so, as they are recited. * * *

'In regard to recitals in deeds, the general rule is, that all parties to a deed are bound by the recitals therein, which operates as an estoppel, working on the interest in the land, if it be a deed of conveyance and binding both parties and privies; privies in blood, privies in estate, and privies in law. Between such parties and privies, the deed or other matter recited needs not at any time be otherwise proved, the recital of it in the subsequent deed being conclusive. It is not offered as secondary, but as primary evidence, which cannot be averred against, and which forms a muniment of title. Thus, the recital of a lease, in a deed of release, is conclusive evidence of the existence of the lease against the parties, and all others claiming under them in privity of estate.'

The footnotes supporting the foregoing statement indicate that Greenleaf relied principally upon the law as stated by Justice Story in Carver v. Jackson, 4 Pet. 1, 1830, 29 U.S. 1, 7 L.Ed. 761, which carefully examines the doctrine of estoppel as it relates to recitals in instruments, drawing upon cases, digests and texts from both the American and English law.

We think that ORS 41.350 must be interpreted in the light of these probable influences and that it must, therefore, be regarded as embracing the principle of estoppel enunciated in the cases prior to its enactment. Without such a guide in the interpretation of the statute we would have no way of determining its scope and there would be the danger that the bald words of the statute, barren of a guiding principle, would produce more harm than good.

Proceeding from this premise we still are faced with additional problems of construction. The statute does not tell us which meaning of the word 'recital' was intended; it does not tell us who is to be included within the term 'parties thereto'; and it does not indicate under what circumstances a recital will be binding upon the parties, their representatives or successors in interest.

Certainly, statements recited in an instrument need not be taken as true if they are patently contrary to known facts. Thus a recital that John Jones and John Smith were husband and wife would not be regarded as true in spite of the statute. And certainly, in enacting this statute the legislature did not intend to pronounce that all recitations, however trivial and however immaterial to the purpose of the transaction, were to be regarded as true. We interpret the word 'recital' as used in the statute to mean a statement of a fact which is material, Kellogg v. Dennis, 1902, 38 Misc. 82, 77 N.Y.S. 172, and 'upon which the transaction is founded.' Havel v. Decatur County Abstract Co., 1907, 76 Kan. 336, 91 P. 790, 792; In re Cronin's Will, 1932, 143 Misc. 559, 257 N.Y.S. 496.

In 1 Greenleaf on Evidence (Redfield Ed.) p. 32, it is stated that the rule giving conclusive effect to recitals in deeds does not apply 'to that which is mere description in the deed, and not an essential averment; such as to quantity of land; its nature, whether arable or meadow; the number of tons in a vessel chartered by the ton; or the like; for these are but incidental and collateral to the principal thing, and may be supposed not to have received the deliberate attention of the parties.'

The character of the recital is important in determining whether an estoppel will arise from its use. As stated in Hays v. Askew, 1857, 50 N.C. 63, 65 'an estoppel, as a general rule, does not grow out of a recital; to give it that effect, it must show that the object of the parties was to make the matter a fixed fact, as the basis of their action * * *.' To the same effect is International Trust Co. v. Palisade Light, Heat and Power Co., 1916, 60 Colo. 397, 153 P. 1002. See also Bigelow on Estoppel (6th Ed.) 1913, p. 416; note 28 Or.L.Rev. 368, 374 (1949). It was said in Brinegar v. Chaffin, 1831, 14 N.C. 108 [Reprint 101, 102] that 'Recitals in a deed are estoppels when they are of the essence of the contract * * *.'

We consider, then, whether the recital in a deed that the grantees are husband and wife is a recital of a fact that was sufficiently related to the transaction, i. e., the transfer of title, as to constitute a representation or admission which should control the parties or their successors in interest. As between the grantor and grantee ordinarily the character of the tenancy under which the grantees will hold the property upon the transfer of title is not of any moment. In many cases not even the grantees themselves are aware that the recital is made and in those instances when they do, normally they do not purport to be asserting their status in anticipation that others will rely and act upon it.

The point we make here is...