Foote v. Lichty

• Decision Date: 23 January 1912
• Citation: 60 Or. 542,120 P. 398
• Parties: FOOTE v. LICHTY et al.
• Court: Oregon Supreme Court

120 P. 398

60 Or. 542

FOOTE v. LICHTY et al.

Supreme Court of Oregon

January 23, 1912

Appeal from Circuit Court, Washington County; J.U. Campbell, Judge.

Action by John A. Foote against W.J. Lichty and others. Decree for defendants, and plaintiff appeals. Affirmed.

The substance of the complaint in this suit is that at some date in 1908, being then and ever since the owner of a tract of 162 acres of land in Washington county, the plaintiff, at the solicitation of the defendant W.J. Lichty, but without consideration or the knowledge of any of the defendants except W.J. Lichty and E.B. Tongue, executed four conveyances, one each in favor of the defendants W.J. Lichty Frank Lichty, Lydia Gardner, and Emma Hamel, which, taken together, included the whole of said premises. He charges that the four deeds, immediately upon their execution "were deposited with the defendant E.B. Tongue in escrow, to be delivered to each of the defendants named in said several deeds of conveyance upon the death of the plaintiff herein, provided the plaintiff herein should not prior to his death, demand the possession thereof from the said defendant E.B. Tongue; and, at the time of the delivery of said four deeds of conveyance to the said defendant E.B Tongue, it was understood and agreed that said deeds of conveyance should not be delivered to the defendants W.J. Lichty, Frank Lichty, Lydia Gardner, and Emma Hamel, until after the death of the plaintiff herein, in the event the said plaintiff herein should not in the meantime demand possession thereof." He further avers that, although prior to commencing this suit he has demanded immediate possession of the deeds from Tongue, the latter refuses to surrender them. Then, without any allegation that either of the defendants threatens or intends to record the deeds, he says, in substance, that if Tongue shall deliver them to the other defendants, and they are recorded, they will be a cloud upon his title, and the defendants, other than Tongue, claim some interest in the land by virtue of the deeds, but the same is void. He prays that the cancellation of the deeds and his ownership of the property be decreed. The answer traverses the whole complaint, except as otherwise stated, and alleges that without solicitation thereto by either of the defendants the plaintiff on November 25, 1908, for a valuable consideration, executed and delivered to each defendant a deed for a certain described parcel of the land and "placed said deeds of conveyance in the possession of the defendant E.B. Tongue, and instructed him to retain the same in his possession until the death of the plaintiff, and then to deliver to the other defendants, respectively, the deeds to their respective tracts of land as above described." After joining issue on material allegations of the answer, the reply reiterated an allegation of the complaint to the effect that ever since the execution of the deeds plaintiff has been in possession of the property, enjoying the rents, issues, and profits, and that neither of defendants has been in possession of any part, except that W.J. Lichty has been in possession as tenant of plaintiff. The circuit court, after hearing, made findings of fact and conclusions of law for defendants, and from the resulting decree plaintiff appeals.

Geo. R. Bagley (Bagley & Hare, on the brief), for appellant.

S.B. Huston, for respondents.

BURNETT J. (after stating the facts as above).

All other questions raised about the admissibility of testimony in this case are grouped about and are ancillary to the principal one of whether the deeds mentioned were delivered so as to complete the process of passing title to the land from the plaintiff to the respective grantees.

It is disclosed by the evidence that the plaintiff is a man above 70 years of age who never married. He came to Oregon many years ago, leaving all his relatives in the state of New York, and had but little if any communication with them until within the last few years. He lived for about 25 years in the Lichty family, of which Mrs. Eliza Lichty, widow, now deceased, was the head and the defendants here, except E.B. Tongue, were the children. The plaintiff was cared for by the Lichtys as one of the family without charge, and he rendered them some small services in return, such as keeping the farm implements in repair, also without intending to claim any fee or reward. It seems that they all lived together on a farm owned by the plaintiff, and that the Lichtys did the work and kept up the place; but whether as tenants or otherwise is not clear. The plaintiff, having acquired considerable property during his life in Oregon, on July 3, 1908, made a will, whereby he provided for his relatives in a residuary clause, and, besides certain cash legacies to other persons, devised the land in question here to Eliza Lichty for and during her natural life, and at her death to her children, defendants in this suit. It further appears in testimony that prior to the execution of this will he was visited by his brother and sister, Perry Foote and Amanda Rector, of New York, and he gave them, respectively, $6,000 and $5,000, after which they returned to New York. Another brother, William C. Foote, afterwards came from New York and visited him about 10 days. This brother testifies, in substance, that the plaintiff told him that the Lichtys had helped him make his money, had made a good home for him, and were entitled to the land in question for what they had done for him, and that he was going to see that they got it. According to this witness, the plaintiff, in conversation with him, substantially characterized the visit of Perry Foote and Mrs. Rector as a quest for a dead man's shoes, and said that they seemed to feel bad because plaintiff did not die. At the hearing, plaintiff's counsel earnestly combated the introduction of testimony of the circumstances thus detailed. We think, however, that they are proper for consideration, because, when the quality or purpose of a person's act is to be determined, it is at least helpful if we may have light on the motive which impelled him to do as he did. If it be shown that an intimate friendship of long standing existed between the Lichtys and the plaintiff, and that he had a deep sense of gratitude toward them for their kindness to him, a situation is presented quite different from the bare execution of the deeds which, standing alone, might be attributed to the childish impulse of a "foolish, fond old man."

The vital issue of the cause is whether the deeds were delivered within the meaning of the law. After an exhaustive consideration of the precedents in the case of Fain v. Smith, 14 Or. 82, 90, 12 P. 365, 370 (58 Am.Rep. 281), Chief Justice Lord sums up the matter thus: "The result of the authorities is that, after a writing has been signed and sealed and acknowledged, any acts or words or circumstances decisive of the intention of the grantor to consummate and to part with it are sufficient to constitute a delivery and give it validity as a deed." In Hoffmire v. Martin, 29 Or. 240, 243, 45 P. 754, this court said that the solution of the question as to when a deed, executed and deposited with a stranger to be delivered to the grantee upon the death of the grantor, is effectual to pass the title, "depends on whether the grantor intends to and does retain dominion and control over it after such delivery, or parts with the possession and control of it absolutely at the time of delivery." The decision there was that, if such control and right to its return was retained by the grantor, the title would not pass; "but if the grantor parts with all dominion and control over the deed, reserving no right to recall it or alter its provisions, it is a good delivery, and the grantee will, on the death of the grantor, succeed to the title." Other cases illustrative of the principle are Payne v. Hallgarth, 33 Or. 430, 54 P. 162; White v. White, 34 Or. 141, 50 P. 801, 55 P. 645; Swank v. Swank, 37 Or. 439, 61 P. 846; Reeder v. Reeder, 50 Or. 204, 91 P. 1075. With the rule thus established as a major premise, let us examine the testimony to ascertain if the minor premise is established to the effect that the plaintiff surrendered to Tongue the control of the deeds so as to constitute a delivery.

The plaintiff was a witness in his own behalf. As he was unable to attend court, the judge, at the request of counsel attended at plaintiff's room in the hotel where he was then living and heard the case there as far as this witness was concerned. The plaintiff testified, in substance, that at the time the deeds were executed, November 25, 1908, he sent for Mr. E.B. Tongue to come to his residence in the country for that purpose. Mr. Tongue had prepared the deeds according to plaintiff's directions, and after they were signed, witnessed, and acknowledged, plaintiff said that Tongue should take them and put them in a safe and keep them, and after he was dead they were to be recorded. On the point of whether he was entitled to receive them back again on demand, his questions and answers are here given: "Q. Was there anything said at that time that you should not have the deeds back if you wanted them? A. No. Q. What was said? A. There was nothing said about the deeds. They was just made, and that was all there was of it. Q. Was there a will executed at the same time, Uncle John? A. Yes, sir. Q. Was there anything said about the will in connection with the deeds as to what was to be done with the will? A. They were to be kept together. Q. Did you intend, at the time those deeds were delivered to Mr. Tongue, that you should part with the title to them and never get...