Harmon v. Kerns

• Citation: 169 Okla. 290,1934 OK 535,36 P.2d 898
• Decision Date: 16 October 1934
• Docket Number: Case Number: 22931
• Parties: HARMON et al. v. KERNS et al.
• Court: Supreme Court of Oklahoma

1934 OK 535

36 P.2d 898

169 Okla. 290

HARMON et al. v. KERNS et al.

Case Number: 22931

Supreme Court of Oklahoma

Decided: October 16, 1934

Syllabus

¶0 1. Evidence--Action to Establish Parol Gift of Land--Declarations of Deceased Alleged Donor Explanatory of His Possession and Claim of Ownership.

In a suit to establish a parol gift of lands. declarations and statements of the deceased alleged donor, while remaining and living upon the lands in question, are admissible in evidence as explanatory of the nature and character of his occupancy and possession and of his claim of ownership.

2. Gifts--Essentials of Valid Gift Inter Vivos.

To constitute a valid gift inter vivos there must be a donor competent to make it; freedom of will on his part; an intention on his part to make it; a donee capable of taking the gift: the gift must be complete, and nothing left undone; the property must be delivered by the donor, and accepted by the donee; the gift must go into immediate and absolute effect- the gift must be gratuitous, and the gift must be irrevocable.

3. Same--Degree of Proof Required.

After the death of an alleged donor, in order to establish a gift inter vivos, the evidence must be clear, explicit, and convincing in support of every element necessary to constitute a valid gift.

Appeal from District Court, Major County; J. W. Bird, Judge.

Action by J. L. Harmon and Mamie M. Harmon against Henry D. Kerns et al. Judgment for defendants, and plaintiffs appeal. Affirmed.

Dyer & Smith, for plaintiffs in error.

Tom E. Willis and A. O. Manning, for defendants in error.

PER CURIAM.

¶1 This was a suit in which the plaintiffs sought to establish a parol gift of land alleged to have been marie by David P. Kerns, deceased, on or about the month of November, 1923, at which time it was alleged that the plaintiffs went into possession of the property, and that they thereafter had maintained open, notorious, exclusive, and adverse possession thereof, and that they have placed on the premises valuable and lasting improvements. The cause was tried to a jury, whose verdict was for the defendants, and judgment was rendered accordingly.

¶2 Complaint is made of the introduction of certain documentary evidence which it is claimed amounts to self-serving declarations on the part of the deceased alleged donor. The fact was developed that the alleged donor was at the time living upon the premises and making his home in the dwelling house, which was also occupied by the plaintiffs; that he paid off the mortgage on the premises, kept up and paid for the insurance, paid all of the taxes, and purchased and paid for practically all of the materials used in improvements and repairs, after the date of the alleged gift and up until the time of his last sickness and death. Under these circumstances, declarations made by him, even though self-serving, were admissible in evidence. In the case of Butts et ux. v. Butts et al., 84 Kan. 475, 114 P. 1048, it was held;

"In an action where a plaintiff seeks to establish a parol gift of lands from his father in whom the legal title stood at the time of the latter's death, declarations and statements of the father made while in possession and control of the lands are admissible in evidence, not as mere assertions of title, but as explanatory of his possession and the nature and character of his claim of ownership."

¶3 In the course of the opinion, it was said:

"John W. Butts and wife brought this suit to quiet title to a farm of 104 acres near Valley Fails, in Jefferson county. The principal defendant is Halleck D. Butts, a brother of the plaintiff John W. Butts. The farm originally belonged to their father, W. O. Butts, who died in April, 1908. John W. Butts and his wife had occupied a house on the farm from the time of their marriage in 1896, until after his father's death, when he set up a claim to own the land by parol gift from his father, accompanied by actual possession and the making of lasting improvements. The court gave judgment for the defendants, and the plaintiffs appeal.

"On the trial the court submitted to a jury in an advisory capacity certain questions of fact which they answered in favor of the plaintiffs and against the defendants. These the court set aside, and made separate findings of fact and conclusions of law. The court's findings are that the plaintiffs occupied the house on the farm without payment of rent from May, 1896, to March 1. 1908; that during that time W. C. Butts kept possession and control of the farm land, rented the same to other tenants, and collected the rents, paid all the taxes, kept l he buildings insured in his own name as owner; that other buildings on the farm were occupied by his tenants; that he never surrendered the possession of the premises to the plaintiffs or made a gift of the farm to them: that in October. 1907. he leased the farm to the plaintiffs for the following year. beginning March 1st. for the sum of $ 225: that in 1896. when the plaintiffs moved to the farm. they made no change in their condition or situation other than to leave the

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