Gross v. Gross

• Decision Date: 24 October 1989
• Docket Number: No. 89-278,89-278
• Citation: 239 Mont. 480,781 P.2d 284
• Parties: Peter J. GROSS, Plaintiff and Respondent, v. Richard P. GROSS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 284

781 P.2d 284

239 Mont. 480

Peter J. GROSS, Plaintiff and Respondent, v. Richard P. GROSS, Defendant and Appellant.

No. 89-278.

Supreme Court of Montana.

Submitted on Briefs Aug. 17, 1989.

Decided Oct. 24, 1989.

Walter S. Murfitt, Luxan & Murfitt, Helena, for defendant and appellant.

Gene A. Picotte, Clancy, for plaintiff and respondent.

HARRISON, Justice.

Peter J. Gross (the father) initiated this action to have three deeds that conveyed an interest in property to Richard P. Gross (the son) declared null and void. The District Court of the First Judicial District, Lewis and Clark County, granted summary judgment in favor of the father. The District Court held that the father presented sufficient evidence to overcome the presumption of delivery raised by the father's recording of the deeds. We reverse and direct entry of judgment for the appellant.

Appellant raises the following issue for review:

Did the District Court err in holding that the plaintiff presented sufficient evidence to rebut the presumption of delivery arising from the recording of the deeds?

Appellant, Richard Gross, is the son of respondent, Peter Gross. Peter's wife (Richard's mother) died in 1980. Peter was 80 years old at the time. Sometime after her death, the father suffered a stroke which prompted a discussion between father and son concerning the father putting his affairs in order. Shortly after this discussion, the father executed and recorded three warranty deeds that transferred property from the father to the father and son as joint tenants. The father retained the deeds in his possession, continued to occupy and maintain the property and to pay all expenses associated with the property.

After the father executed and recorded the deeds, he told his son that he had put the property into a joint tenancy with him. It is undisputed that the father executed the deeds to avoid probate. Subsequently the father asked the son to reconvey the property, but the son refused. The father has since remarried.

Several conflicts between the father's affidavit and deposition and the son's deposition appear in the record. The father maintains that the son requested that his name be put on the deeds while the son testified that he had no knowledge of his father's actions until after the deeds were executed. Also, the father contends that the son promised that he would not interfere with his control of the property or object to any disposition of the property he wished to make. The son denies that the subject of control ever arose and that he ever made any such assurances.

In Roth v. Palutzke (1960), 137 Mont. 77, 350 P.2d 358, this Court found that, based on what is now Sec. 70-1-509, MCA, when a deed is executed a presumption arises that delivery occurred and that recording the deed strengthens that presumption. We conclude that this presumption can only be overcome by clear and convincing evidence. 23 Am.Jur.2d, Deeds Sec. 172; Controlled Receivables v. Harman (1966), 17 Utah 2d 420, 413 P.2d 807.

In assessing whether the grantor has presented clear and convincing evidence, the general rule is that the grantor's self-serving statements are not enough to overcome the presumption of delivery. See, 23 Am.Jur.2d, Deeds Sec. 172; Controlled Receivables, 413 P.2d at 810. Also the fact that the grantor has retained possession of the deeds and continued to occupy and control the land will not rebut the presumption when a close relationship exists between the grantor and grantee. Roth, 350 P.2d at 360.

The father testified that he did not intend to create a present interest and argued in essence that his actions subsequent to recording the deeds were inconsistent with an intention to create a present interest. The District Court held that the father had presented sufficient evidence to overcome the presumption of delivery. In reaching its conclusion, the District Court relied on the father's dominion and control of the property along with his paying all of the expenses such as taxes and insurance.

We do not agree that the father presented the kind of clear and convincing evidence required to rebut the presumption of delivery. The District Court felt that the father's intent was the crucial factor and stated that it found no evidence in the record that the father intended to create a present interest. However, the evidence relied on by the District Court to determine that the father did not intend to create a present interest in the son cannot be used to rebut the presumption of delivery given the close relationship between father and son.

This Court has held that subsequent acts of a grantor identical to those of the grantor in this case "do...