Giefer v. Swenton

• Court: Kansas Court of Appeals
• Writing for the Court: Before BRAZIL, P.J., LEWIS, J., and PAUL E. MILLER; LEWIS
• Citation: Giefer v. Swenton, 928 P.2d 906, 23 Kan.App.2d 172 (Kan. App. 1996)
• Decision Date: 13 December 1996
• Docket Number: No. 74687,74687
• Parties: Francis GIEFER, Appellee, v. Rosella SWENTON and Joe Swenton, Appellants.

Page 906

928 P.2d 906

23 Kan.App.2d 172

Francis GIEFER, Appellee, v. Rosella SWENTON and Joe Swenton, Appellants.

No. 74687.

Court of Appeals of Kansas.

Dec. 13, 1996.

Review Denied Feb. 4, 1997.

Syllabus by the Court

1. Before a deed can be operative as a valid transfer of title, it must be effectively delivered during the grantor's lifetime.

2. Whether there has been a delivery of a deed is ordinarily a question of fact.

3. The recording of a deed by the grantor or at the express direction of the grantor is presumptive evidence of its delivery, but such presumption can be overcome by other competent evidence.

4. When the evidence establishes that a property owner did not intend to pass a present interest in property then as between the parties there is no binding delivery of the deed to that property even though the deed is recorded. Such evidence would overcome a presumption of delivery.

5. The intent of a grantor in recording a deed is to be determined by examining the contents of the instrument in question and by the consideration of other competent, admissible evidence relevant to the question of intent.

6. No will shall be effectual to pass real or personal property unless it has been duly admitted to probate.

7. It is error to give effect to the terms of an unprobated will by ordering the parties to comply with its terms with regard to the devolution of title to real estate or other property.

Justin Lamunyon and R.L. Faulkner, of Faulkner Law Firm, Enid, OK, and Diane S. Worth, of Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, for appellant.

Curtis E. Watkins, of Geisert, Wunsch & Watkins, Kingman, for appellee.

Before BRAZIL, P.J., LEWIS, J., and PAUL E. MILLER, District Judge, Assigned.

LEWIS, Judge:

This is the type of dispute which can and has destroyed the integrity of a once close family unit. The cause of such a dispute is generally the death of a parent and the struggle over his or her estate. This case carries such a factual premise.

Johnnie L. Giefer (decedent) had a small farm in Kingman County. His wife predeceased him, and at the time of his death his family consisted of one grown son and six grown daughters. Shortly before and certainly after his death, his son and at least one of his daughters had differences which have grown into what is now probably an irreconcilable family feud. This lawsuit pits one daughter, Rosella Swenton, and her husband Joe against the rest of the family.

At issue in this case is whether the decedent died owning the family farm or deeded it away prior to his death. On September 20, 1990, the decedent executed a deed, absolute on its face, conveying the 320 acres, known as the "home place," which conveyed a 1/7 interest in the real estate to each of his children as tenants in common. He executed a will (first will) on the same date. He held this deed until March 5, 1993, when he instructed his daughter Bernice to record it. On August 8, 1993, he executed a last will and testament (second will) which contained provisions inconsistent with the deed. Like the first will, the second will left the home place to all seven of his children but provided that his son Francis was to have the absolute right to buy the property from the sisters for $400 per acre. On August 28, 1993, the decedent died.

After his death, all of the sisters but Rosella sold their interest in the home place to Francis. Francis now owns an undivided 6/7 interest in the 320 acres. The decedent's last will and testament was not offered for probate, was not admitted to probate, and has not been offered or admitted to this day.

After a passage of time, Francis sued Rosella, asking for declaratory judgment and what amounts to specific performance of the provision of the decedent's second unprobated will. Rosella counterclaimed, alleging she owned an undivided 1/7 interest in the home place by reason of the deed and asked for an accounting of her share of the rents and profits and for partition. The trial court held that the decedent did not intend to convey a present interest in the real estate by the deed which was recorded March 5, 1993, and canceled the deed. The court then enforced the provisions of the decedent's second will and ordered Rosella and her husband to deed their interest in the property to Francis upon the tendering by Francis of payment under the terms of the second will. The court also denied Rosella's prayer for an accounting and for partition. Rosella appeals from the trial court's decision.

After careful review, we conclude the trial court erred and reverse and remand.

DEED RECORDED MARCH 5, 1993

We first deal with the deed which was recorded on March 5, 1993. The trial court found that this deed should be canceled because the decedent did not intend that it vest a present interest in the grantees. We conclude this finding is contrary to the evidence and must be reversed.

The legal issue presented is whether the deed was properly delivered. "It is elementary law that before a deed can be operative as a valid transfer of title it must be effectively delivered during the grantor's life." Agrelius v. Mohesky, 208 Kan. 790, 795, 494 P.2d 1095 (1972).

"We have said that delivery is largely a matter of the grantor's intention to divest himself of title as evidenced by all the facts and circumstances surrounding the transaction and whether there has been a delivery is ordinarily a question of fact." 208 Kan. at 795-96, 494 P.2d 1095. However, under certain circumstances, the issue can become a question of law:

"The question of the delivery of a deed is largely a question of intention, ordinarily to be determined by the jury or trial court as a question of fact, but when the facts are not controverted the question should be determined by the court as a question of law, and when the facts have been fully tried, leaving only questions of law to be decided, this court may direct the entry of a proper judgment--following Worth v. Butler, 83 Kan. 513, 112 Pac. 111." Hoard v. Jones, 119 Kan. 138, Syl. p 9, 237 P. 888 (1925).

The deed in question was executed in 1990 and recorded at the express direction of the decedent in 1993. It was never manually delivered to the grantees, although the record indicates that most of them knew about it prior to the decedent's death. After its recording, the decedent kept it in his possession. It is apparent from these facts that there was no outright manual delivery of the deed in question from the grantor to the grantees. However:

"Defendant further contends that inasmuch as she retained possession of the recorded deed, there was no delivery. We stated in Fooshee v. Kasenberg, [152 Kan. 100, 103, 102 P.2d 995 (1940) ]:

'It is well settled that the recording of a deed constitutes delivery to the grantee. (Balin v. Osoba, 76 Kan. 234, 91 Pac. 57; Carver v. Main, 146 Kan. 251, 257, 69 P.2d 681). Where the deed is intentionally recorded by the grantor manual delivery of the deed thereafter is not necessary to make it effectual. (Turner v. Close, 125 Kan. 485, 264 Pac. 1047.) In the absence of express disclaimer acceptance by the grantee is presumed. (Wuester v. Folin, 60 Kan. 334, 56 Pac. 490; Miller v. Miller, 91 Kan. 1, 136 Pac. 953.)'

"It seems to be a well-settled rule of law in this state that the recording of a deed constitutes delivery to the grantee, and where the deed is intentionally recorded by the grantor, the manual delivery of the deed thereafter is not necessary to make it effectual. In the absence of express disclaimer, acceptance by the grantee is presumed. [Citations omitted.]" Hansen v. Walker, 175 Kan. 121, 124, 259 P.2d 242 (1953).

In Staats v. Staats, 148 Kan. 808, Syl. p 3, 84 P.2d 842 (1938), the Supreme Court held: "The recording of a deed is presumptive evidence of its delivery, but such presumption can be overcome by other competent evidence." (Emphasis added.) See Thom v. Thom, 171 Kan. 651, 653, 237 P.2d 250 (1951); Turner v. Close, 125 Kan. 485, Syl. p 2, 264 P. 1047 (1928); Conner v. Cole, 112 Kan. 517, Syl. p 2, 211 P. 615 (1923).

Further, the Kansas courts have held that "where a transfer of property is made without consideration, the inference is that a gift was intended, not that the grantee was to hold the property for the benefit of the grantor. (Fooshee v. Kasenberg, 152 Kan. 100, 102 P.2d 995.)" Hansen v. Walker, 175 Kan. at 123, 259 P.2d 242. In Miller v. Miller, 91 Kan. 1, Syl. p 5, 136 P. 953 (1913), the court said: "The recording of the deed by the grantor made it effective as to all persons benefited by it who did not dissent."

On the surface, therefore, this is a case in which there is a presumption of delivery and one in which none of the grantees has stepped forward to reject any gift bestowed upon them by the decedent.

As we read the Kansas cases, most of the instances in which a presumption of delivery by recording was overcome were cases in which the deed was not recorded by or at the direction of the grantor. Indeed, in these decisions, cases to the contrary are distinguished because in those cases, the grantor himself had recorded the deed. See, e.g., Staats v. Staats, 148 Kan. at 812, 84 P.2d 842; Turner v. Close, 125 Kan. at 489, 264 P. 1047. In those cases, where a deed absolute on its face was recorded by or at the direction of the grantor, the presumption of delivery was upheld. Hansen v. Walker, 175 Kan. 121, 259 P.2d 242; Thom v. Thom, 171 Kan. 651, 237 P.2d 250; Conner v. Cole, 112 Kan. 517, 211 P. 615.

In this case, the evidence shows, beyond any doubt, that the deed was recorded at the express direction of the grantor. The only witness as to the actual intention of the decedent in executing and recording the deed was Bernice Beall, his daughter, who testified concerning the recording as follows:

"Q. All right. And what were the circumstances surrounding the recording of that deed?

"A. I went out to my dad's place. He was very sick. He had a lot...