Evans v. Evans, 4500.

• Decision Date: 21 February 1940
• Docket Number: No. 4500.,4500.
• Citation: 101 P.2d 179,44 N.M. 223
• Parties: EVANSv.EVANS et al.
• Court: New Mexico Supreme Court

44 N.M. 223

101 P.2d 179

EVANS

v.EVANS et al.

No. 4500.

Supreme Court of New Mexico.

Feb. 21, 1940.Rehearing Denied April 12, 1940.

Appeal from District Court, Otero County; Numa C. Frenger, Judge.

Action by Mrs. Louella Evans against Mrs. Hattie Evans and Lorna M. Shipley, administratrix of the estate of George B. Evans, deceased, to secure cancellation of a deed. From a decree in favor of the plaintiff, defendants appeal.

Affirmed.

The corroborating evidence required by the statute in suit by or against heirs, executors, administrators or assigns of a deceased person, must be such as would, standing alone and unsupported by evidence of claimant, tend to prove essential allegation or issue raised by pleading. Comp.St.1929, § 45-601.

George A. Shipley and Lorna M. Shipley, both of Alamogordo, for appellants.

J. L. Lawson, of Alamogordo, for appellee.

BICKLEY, Chief Justice.

This is an appeal from the District Court of Otero County from a decree in favor of appellee canceling a deed of conveyance theretofore executed and acknowledged by appellee as grantor and in favor of George B. Evans, her son, now deceased. Mrs. Hattie Evans, one of the appellants, is the widow and sole surviving heir of the said George B. Evans; and she, together with Lorna M. Shipley, the other appellant, as administratrix of George B. Evans, deceased, were defendants in the court below. We shall hereafter refer to appellee as plaintiff and appellants will be designated defendants.

Cancellation of the deed was sought by appellee and decreed by the trial court on the principal ground that there was never a delivery of the deed by plaintiff to defendant's deceased intended or effected, and that possession thereof was obtained by the said George B. Evans surreptitiously and by fraud and without the knowledge and consent of plaintiff and placed upon record during his lifetime, and that no title ever passed thereby.

Defendants assign several errors in their attack upon the findings, conclusions and decree of the trial court, but we shall notice only those which we think are important and determinative of the issues presented.

Though the property was located in Otero County, New Mexico, the mother and son had both been living for years in the State of California and dealings concerning the property were, of necessity, largely by mail. The defendants rely upon the fact that the son, at the time of his death, was in possession of the deed which had been recorded, and that plaintiff has not by her evidence either overcome the presumption of delivery attending possession nor has her own testimony been sufficiently corroborated by other evidence as required by statute in such cases.

The mother was nearly ninety years of age at the time of the execution of the deed, and was ninety-one when she testified in the case. The son was in poor health, without funds or employment, and it is clear that she wanted him to have the house and lot in question “after” her death. The question is, did she want him to have it “before” her death, and, absent an affirmative answer to the last question, did or could her acts accomplish this result?

In substance, the issues are narrowed down to a determination of the question of whether there was in fact a delivery of the deed to the deceased son during his lifetime, sufficient to pass title, and involved in the answer to this question we find two others which must be answered, viz: (A) Does the evidence of plaintiff support her claim that there was an agreement or understanding on the part of the parties grantor and grantee that title should not pass to the property described by the deed until after her death and no effectual delivery of the deed was contemplated or had? And (B) is there in the record sufficient evidence of corroboration to satisfy the requirement of Section 45-601, N.M. Stat.Ann.Comp. 1929, regarding corroboration of the evidence of “opposite” or “interested” parties to a suit against the heirs, executors, administrators or assigns of deceased persons?

[1][2][3][4] We analyze first the testimony of plaintiff, a woman of the age of 91 years, given by deposition, to determine whether she had made a case for herself to support the court's findings that she never intended that the deed in question should be delivered to her son until after her death, and that by trick and artifice and without her knowledge and consent he obtained possession thereof and had the same recorded. If plaintiff's position is correct and there was to be no delivery of the document until after the grantor's death and in the meantime she herself was to exercise control and to have possession and custody, then, of course, no title did or could pass. See 56 A.L.R. 746, with full annotation. The fact that the grantee was found in possession and had recorded the deed could lend no strength to defendant's position excepting that which supports the rule of law that ordinarily possession of a duly executed conveyance or document is prima facie evidence of actual delivery by the grantor.

But, if this possession for the purpose of holding and recording was gained by trick or artifice and without the knowledge or consent of the grantee, then any presumption which possession supports must give way to another rule, which is that such possession must be accompanied by an intent that the grantee is to take title immediately. Findings supported by proof that the grantor after the execution, retained no power or control over the deed would resolve the dispute in favor of defendants (Arias v. Springer, 42 N.M. 350, 78 P.2d 153), but we do not have such a situation here.

“The intention of the parties, particularly the grantor, is an essential and controlling element of delivery of a deed.” 16 Am.Jur. 501, par. 115, citing numerous authorities.

“The party ‘could not have intended delivery if the property was not to pass immediately by the deed. Therefore, the inquiry is simplified by asking, did the grantor intend the property to pass?”’ 16 Am.Jur. 503, par. 116.

[5] “It is a fundamental rule,” the court said in Donahue v. Sweeney, 171 Cal. 388, 153 P. 708, 709, “that, whatever method of delivery is adopted, there must be a plain showing that the grantor by acts or words or both intended to divest himself (or herself) of title.”

Many cases may be cited where are found facts similar to those presented in the case at bar, and where possession of a deed has been held to be overcome by proof of the controlling facts and circumstances showing that it was unfairly obtained, or not for the purpose of passing title. Elliot v. Merchants' Bank & Trust Co., 21 Cal.App. 536, 132 P. 280; Hayes v. Boylan, 141 Ill. 400, 30 N.E. 1041, 33 Am.St.Rep. 326; Hotaling v. Hotaling, 193 Cal. 368, 224 P. 455, 56 A.L.R. 734.

Plaintiff, the mother, says that her son paid her nothing for the property in question; that she “wanted him to have the property at my death”; that she was to keep the deed in her possession until her death, and then he was to have it recorded; that the deed was kept in her own possession, in a cedar chest, and one day when she was sick in bed her son came in and told her, “You should have a safety box for your papers for they are not safe in the house when you are alone; I think I will take them up to the bank,”; that she never saw the deed again but that when she got better her son told her he had put all her papers in a safety box at the bank. It is clear that she continued to receive the rents from the property before and after her son's death and she always paid the taxes.

[6] Clearly it must be said, that plaintiff's own testimony would support her claim that she had never delivered the deed to her son with the intention of passing title. We have the deposition of other witnesses upon which plaintiff relies in support of her claim of...