Halleck v. Halleck

• Decision Date: 08 April 1959
• Parties: Theron H. HALLECK, Respondent, v. Frances E. HALLECK, Robert Farr and Jane Doe Farr, his wife, Appellants.
• Court: Oregon Supreme Court

Page 330

337 P.2d 330

216 Or. 23

Theron H. HALLECK, Respondent, v. Frances E. HALLECK, Robert Farr and Jane Doe Farr, his wife Appellants.

Supreme Court of Oregon.

Argued and Submitted Nov. 20, 1958.

Decided April 8, 1959.

W. C. Winslow, Salem, argued the cause for appellants. With him on the brief was Norman K. Winslow, Salem.

LaVerne Johnson, Corvallis, argued the cause for respondent. With him on the brief were Huston & Thomas, Corvallis.

Before PERRY ^*, C. J., and ROSSMAN, McALLISTER ^** and O'CONNELL, JJ.

O'CONNELL, Justice.

This is an action of ejectment. The plaintiff asserts that he has title to the property in question through the execution and delivery of a deed dated September 22, 1950 by which Charles A. Bickford, the grantor, conveyed the property 'unto said T. H. Halleck and Theron H. Halleck, not as tenants in common but with the right of survivorship, their assigns and the heirs of such survivor,' this language being a printed part of a deed form in wide use in this state. The deed records of Lincoln County show that Charles A. Bickford was the grantee named in a deed covering the same property dated two days earlier executed by T. H. Halleck, the father of the plaintiff, Theron H. Halleck. It was stipulated by the parties that T. H. Halleck was the owner of the property in question prior to September 20, 1950.

The defendant Frances E. Halleck is the widow of T. H. Halleck. The other defendants were joined simply because they were in possession of the property as tenants holding under the defendant, Frances E. Halleck. Hereafter we shall refer only to the latter defendant.

The defendant claims complete ownership in the property as the devisee under T. H. Halleck's will which was executed on September 7, 1951. In the alternative, defendant claims an undivided one-half interest by virtue of a deed executed on June 5, 1953 by T. H. Halleck to the defendant, the deed purporting to convey to her such an interest. T. H. Halleck died on October 7, 1953. In addition to traversing plaintiff's complaint the defendant seeks affirmative relief in equity to remove the cloud of plaintiff's deed from her title.

The defendant married T. H. Halleck after a rather short period of courtship which began when he was in the hospital at which the defendant worked as a nurse. She was 63 and he was 80 years of age at the time of their marriage. His letters indicate that this marriage, which was his third, was a very happy one. This may account for the fact that all of his estate except one dollar bequeathed to his son, was devised and bequeathed to the defendant. If the deeds referred to above were effective to create an interest in the plaintiff prior to his father's death, then, of course, the will could not affect that interest. However, the defendant contends that no interest passed to the plaintiff during his father's lifetime.

The trial court held that the Bickford deed which named T. H. Halleck and Theron H. Halleck as grantees vested the complete title in the plaintiff upon his father's death. This conclusion is attacked by the defendant on the following grounds: (1) that the Bickford deed relied upon as the source of plaintiff's title was neither delivered nor accepted in a legal sense; (2) that it was without consideration, and (3) that it was a 'testamentary device which was never intended to pass any title to respondent in the lifetime of T. H. Halleck.'

We shall consider first the evidence relating to the execution of the deeds in September, 1950. It is undisputed that the plaintiff's father, T. H. Halleck, executed and delivered to Charles A. Bickford a deed describing the property in question. Thereafter Charles A. Bickford executed a deed to T. H. Halleck and the plaintiff in the form described above. Both deeds were recorded. The recording of a deed creates a presumption of delivery. If the deed is recorded by the grantor the presumption can be supported on the ground that his conduct in placing the deed on record is evidence that he executed the deed with the intent to make it legally operative. Lancaster v. May, 1952, 194 Or. 647, 243 P.2d 268 (semble). If the deed is recorded by the grantee the presumption of delivery arises, not from the act of recording itself but from the grantee's possession of the deed. Tiffany, Real Property (3d ed.), § 1044. Here the defendant alleges that T. H. Halleck caused both deeds to be recorded. He was of course the grantor of one deed and the grantee of the other. Accepting this allegation as true, T. H. Halleck's recording of the first deed, of which he was the grantor would create a presumption that he had effected a delivery to Bickford; his recording of the second deed, of which he was the grantee, would create a presumption of delivery to him arising out of his possession of the deed.

Perhaps it would be more realistic to construe the execution of these deeds as one transaction and to regard T. H. Halleck as the grantor for the purpose of applying the rule recognizing the presumption of delivery referred to above. However, it it unnecessary to rest the case upon this basis because there is sufficient evidence without the aid of the presumption to establish that delivery was accomplished. We are concerned here with evidence indicating the intention of T. H. Halleck in causing the deeds to be executed.

We commonly speak of the delivery of a deed. However, as the term is used in the law delivery is effected by a mental, not a physical process. Properly defined, delivery describes the passage of a property interest, normally the full legal title, from the grantor to the grantee. The interest passes if the grantor manifests the intention to pass it immediately--in the case of transfers of interest in real property the intention to make legally operative a properly executed deed. American Law of Property, § 12.64; Tiffany, Real Property (3d ed.), § 1034; Lemon v. Madden, 1955, 205 Or. 107, 284 P.2d 1037; cf. Witham v. Witham, 1937, 156 Or. 59, 66 P.2d 281, 110 A.L.R. 253 noted 16 Or.L.Rev. 420 (1937).

The handing over of the deed to the grantee is significant only as evidence reflecting the intent of the grantor. Likewise the retention of the deed by the grantor is not controlling and it may be shown that in spite of the failure to transfer physically the deed to the grantee, the grantor intended the deed to have an immediate operative effect to pass all or a part of his interest in the land. Fain v. Smith, 1886, 14 Or. 82, 12 P. 365, cf. Dickerson v. Murfield, 1948, 183 Or. 149, 191 P.2d 380.

Occasionally it is said that the grantor must give up dominion and control over the deed. Lancaster v. May, supra. This means only that the grantor must intend to pass presently the interest which the deed purports to convey and thus deprive himself of control over that interest. Fain v. Smith, supra. Control by the grantor over the deed itself is evidence, of course, that he may not have intended to pass an interest to the grantee.

In the case at bar the deeds, which had been recorded, were placed in a safe deposit box under the joint names of T. H. Halleck and the plaintiff. The fact that T. H. Halleck could obtain the deeds at his pleasure is of little importance in determining whether he intended to make the deeds effective in the transactions with Bickford because the deeds had been recorded. We think that this fact outweighs the implication of nondelivery arising out of the fact that the deeds were available to the grantor. Lessee of Mitchell v. Ryan, 1854, 3 Ohio St. 377; Pentico v. Hays, 1907, 75 Kan. 76, 88 P. 738, 9 L.R.A.,N.S., 224; contra, Clowers v. Clemons, 1938, 185 Ga. 567, 196 S.E. 28.

What, then, is the evidence of T. H. Halleck's intent to pass an interest in the property to the plaintiff? The defendant contends that the only intent established was the intent to pass the title at the death of T. H. Halleck. It is asserted that the transaction in which Bickford was first the grantee and immediately thereafter the grantor was intended as a testamentary device, a substitute for a will, and consequently ineffective because the instruments were not executed in accordance with the formal requirements of our statute of wills. ORS 114.030. The defendant maintains that T. H. Halleck intended to retain the entire interest in the property until the moment of his death and that he regarded the deeds as effective only if he did not decide to dispose of the property in some other way before his death. If this latter contention is sound then of course the deeds were ineffective to accomplish such a purpose. We look then to T. H. Halleck's statements and conduct for evidence as to the time when he intended title to pass.

The defendant calls our attention to various statements made by T. H. Halleck which indicated his intent to avoid the necessity of including the land in the probate of his estate. The defendant, Frances E. Halleck, his widow testified that he told her that the purpose of executing the deeds was to 'avoid probate.' The same statement was made to two other persons who testified. He had mentioned to the defendant that he thought the amount he paid for probating his former wife's estate ($800) was too much. There was evidence that Bickford had stated to a Mr. Waterbury, T. H. Halleck's attorney, that 'the deed given by me to T. H. Halleck and Theron Halleck was given in lieu of and as a will.'

Defendant makes reference to statements made by T. H. Halleck in letters to his son which, it is argued, indicate a testamentary intent. On one occasion, he referred to his interest in providing for the distribution of his estate at his death 'without any recourse to the law,' and that this be accomplished 'without any court or lawyers.' In one of these letters he reminded his son that 'the property is deeded to us you and I and at my going away, becomes yours' and again 'all of my property is deeded to the survivor of us when I am gon[e...