Hanns v. Hanns

• Citation: 246 Or. 282,423 P.2d 499
• Parties: Frank J. HANNS, Appellant, v. Satolli W. HANNS, a single man, Sylvania M. Kremmel, a single woman, Respondents, Rosina Hanns Mounce and Earl Mounce, her husband, Steven J. Hanns and Jane Doe Hanns, his wife, Defendants.
• Decision Date: 01 February 1967
• Court: Supreme Court of Oregon

Page 499

423 P.2d 499

246 Or. 282

Frank J. HANNS, Appellant, v. Satolli W. HANNS, a single man, Sylvania M. Kremmel, a

single woman, Respondents,

Rosina Hanns Mounce and Earl Mounce, her husband, Steven J.

Hanns and Jane Doe Hanns, his wife, Defendants.

Supreme Court of Oregon, Department 1.

Argued and Submitted Oct. 5, 1966.

Decided Feb. 1, 1967.

J. W. Walton, Corvallis, argued the cause for appellant. On the briefs were Ringo, Walton & McClain, Corvallis.

John B. Leahy, Eugene, argued the cause for respondents. On the brief were Bartle & Leahy, Eugene.

Before McALLISTER, C.J., and PERRY, O'CONNELL, DENECKE and REDDING, JJ.

REDDING, Justice (Pro Tempore).

This is a suit in equity brought by plaintiff, Frank J. Hanns, against Satolli W. Hanns, a single man, Sylvania M. Kremmel, a single woman, Rosina Hanns Mounce and her husband, and Steven J. Hanns and his wife, to impose a constructive trust upon the proceeds from the sale of a certain parcel of real property in Eugene, Oregon. The plaintiff, Frank J. Hanns, is the son of P. J. Hanns, a deceased son of Joseph A. Hanns. Plaintiff has named all of the children of Joseph A. Hanns and his wife Emma, surviving at the time this suit was instituted. Their spouses were also named as defendants. Of the defendants, however, only Satolli W. Hanns and Sylvania Kremmel, brother and sister, defended in the trial court, and only they have appeared in this court as respondents.

This being a suit in equity, it becomes the duty of this court to determine the issues de novo and in so doing, to review the entire record and make its own evaluation of the facts. For this reason, it becomes necessary to here review in some detail the facts leading up to this litigation. As will appear later in this opinion, we find that some of the trial court's findings of fact are unsupported by the evidence.

Until approximately one year prior to the death of Emma Hanns in 1930, Joseph and Emma Hanns, the mother and father of the defendants, were the sole occupants of the family home, the property in question at East 13th Avenue and Oak Street in Eugene, Oregon. By 1929 all the surviving children of Emma and Joseph A. Hanns had grown to adulthood. Satolli Hanns had joined the navy in 1918, where he remained until after the death of his parents. Sylvania Kremmel had married. In 1929, Emma became seriously ill and Sylvania and her husband moved in with her parents and cared for both of them until their respective deaths--Emma in 1930 and Joseph in 1938.

During most of the period of Satolli's absence while in the navy, he made monthly allotments to his parents of $100. The evidence shows that the sams so contributed to them by him over the years totaled approximately $13,000. He also deeded certain real property to his parents.

Joseph A. Hanns, the father, executed a deed dated and acknowledged December 28, 1937 to the home property at 13th Avenue naming as grantees Satolli Hanns and Sylvania Kremmel. It is assumed that he then placed the deed in his safety deposit box in the First National Bank in Eugene. We say it is assumed for as far as the evidence shows, it remained there, undisturbed, until after the grantor's death in 1938 when P. J. Hanns, by virtue of his office as administrator of his father's estate, gained access to the deposit box.

The defendants asserted in their brief and upon oral argument that the deposit box was used jointly by Joseph A. and P. J. Hanns. The only evidence on the subject, however, compels a contrary conclusion. On direct examination as an adverse witness, Satolli Hanns, one of the defendants, testified as follows:

'Q When did you first discover the existence of that deed?

'A In * * * Let's see. It was '56 when my brother told me, my sister and I, that our names were on the deed.

'Q So that it is fair to say that prior to this time you had no idea that such a deed existed?

'A No.

'Q Where was that deed during this period of time? Do you know?

'A I assume it was in the bank box.

'Q And this was a bank box held by your father, Joseph Hanns?

'A Joseph Hanns.'

Later on the same subject Satolli Hanns testified as follows:

'Q Now do I understand you correctly, Mr. Hanns, to say that P. J. Hanns made a statement to you that he had recorded this deed in about 1956?

'A Yes.

'Q Do you know where the deed was kept thereafter?

'A I am not sure, but I assume it was put in the bank box.

'Q This would have been in P. J. Hanns' bank box?

'A Yes, in Joseph A. Hanns' box. Yes, P. J. Hanns' box.

'Q Well, is there a difference?

'A No, they are the same.

'Q But Joseph Hanns had the box up to the time of his death, is this correct?

'A This is true.

'Q And then P. J. Hanns took it over after that?

'A That is right.'

On cross-examination by his own counsel, with regard to the control of the bank box, Satolli Hanns was asked:

'Q And was this bank box originally owned by your father, Joseph Hanns?

'A It was.

'Q And upon your father's death was it owned by your brother, Peter or P. J. Hanns?

'A That is true.

'Q He was the executor of your father's estate?

'A Yes.

'Q And so the property that was in the bank box Subsequent to your father's death would be under the control and effect of your brother, Peter, is that correct?

'A That is true.' (Emphasis supplied.)

From the above, constituting all the evidence on the subject, it can be seen that there is no evidence from which it can be inferred that P. J. Hanns ever 'used jointly' the deposit box where the deed was placed by Joseph A. Hanns. The most that can be gathered from the above testimony is that after the death of Joseph A. Hanns, P. J. Hanns, as administrator of his father's estate, obtained access to the box. Any assumption that the box was used jointly is pure conjecture and is contradicted by the evidence.

The trial court found that Joseph A. Hanns delivered the deed to P. J. Hanns with the intention that it be recorded. No evidence supports this finding. The evidence does not indicate that P. J. Hanns knew of or had any access to the deed until after the death of Joseph A. Hanns and the record is silent as to the intention of Joseph A. Hanns when the deed was executed.

The trial court found that after the delivery of the deed to P. J. Hanns, P. J. Hanns 'retained the deed in his own safety deposit box in what was then the First National Bank of Eugene. That Joseph A. Hanns died on December 21, 1938 and the deed Remained in the custody of P. J. Hanns until * * * recorded * * *.' (Emphasis supplied.) The evidence fails to show the P. J. Hanns had a safety deposit box prior to Joseph A. Hanns' death, or that he knew of the deed. On the contrary, the testimony shows that only after the death of Joseph A. Hanns, did P. J. Hanns acquire control of the box where the deed was found.

What transpired with regard to the deed between 1938 when P. J. Hanns obtained access to the safety deposit box and 1956 when the deed was recorded is undisclosed by the record. The defendant Satolli Hanns assumed it was kept by P. J. Hanns in the deposit box, and that assumption is not unreasonable.

During the period between the death of Joseph A. Hanns in 1938 and the sale of the property in 1962 Satolli and Sylvania were the principal occupants of the premises. For periods during this time portions of the premises not occupied by the answering defendants were rented or leased for dwelling and business purposes. The family members paid no rent and the rents received from the other tenants amounted to very little. As will appear later, it is significant that the rents which were received were turned over to P. J. Hanns who distributed them to all the family members, that is to say the heirs of Joseph A. Hanns, along with informal periodical accountings.

In 1956, P. J. Hanns recorded the deed from Joseph A. Hanns to the answering defendants herein. Without reason for aught that appears in the record the occasion for finally recording the deed which had been neglected for almost 18 years was the removal of P. J. Hanns from Eugene to McMinnville. After the deed was recorded, Satolli and Sylvania continued to live in the premises until the property was sold by them to Dunham Motors of Eugene on May 25, 1962, almost 18 months after the death of P. J. Hanns on December 2, 1960.

Plaintiff Frank J. Hanns, the son of P. J. Hanns, deceased, on October 28, 1963, filed the present suit to impose a constructive trust upon the proceeds of the property for his benefit and that of the other heirs at law of Joseph A. Hanns. Plaintiff alleged that by virtue of the deed purportedly executed by Joseph A. Hanns on December 28, 1937, and recorded on January 30, 1956 the defendants Satolli W. Hanns and Sylvania Kremmel claimed title to land actually owned by the heirs at law of Joseph A. Hanns. Plaintiff asserts that there had been no delivery of the deed by Joseph A. Hanns to the grantees or any other person during his life and that therefore the named grantees took nothing by such deed.

The plaintiff further alleged that he was the son, residuary legatee and sole heir of P. J. Hanns and is therefore entitled to his father's intestate share of the real property. That the property has been sold by the grantees to Dunham Motors of Eugene, a bona fide purchaser; that the grantees named in the deed are in possession of the proceeds of such sale and should therefore be required to hold such proceeds in constructive trust for the benefit of all the lineal descendants and heirs at law of Joseph A. Hanns and account for the rents and profits therefrom.

Defendants Satolli W. Hanns and Sylvania Kremmel, answered admitting that they claimed the property in question by virtue of the deed described which was executed and recorded on the days stated, but denied the allegations as to the invalidity of the delivery thereof. And as an affirmative defense, defendants charged plaintiff with laches. Said answering defendants asserted that plaintiff, having knowledge ...