Hartley v. Stibor

• Citation: 96 Idaho 157,525 P.2d 352
• Decision Date: 22 July 1974
• Docket Number: No. 11387,11387
• Parties: Eleanor HARTLEY, Plaintiff-Appellant, v. Grant J. STIBOR, Defendant-Respondent.
• Court: United States State Supreme Court of Idaho

Page 352

525 P.2d 352

96 Idaho 157

Eleanor HARTLEY, Plaintiff-Appellant, v. Grant J. STIBOR, Defendant-Respondent.

No. 11387.

Supreme Court of Idaho.

July 22, 1974.

Glenn A. Coughlan, Coughlan, Imhoff, Christensen & Lynch, Boise, for plaintiff-appellant.

Jesse R. Walters, Derr, Derr, Walters & Cantrill, Boise, for defendant-respondent.

McFADDEN, Justice.

Eleanor Hartley, the plaintiff-appellant, instituted this quiet title action to real property situate in Boise, Idaho. Following the presentation of appellant's case in chief, respondent moved for dismissal under I.R.C.P. 41(b). The trial court, sitting without a jury, granted the motion and this appeal was taken.

Appellant is the daughter of Helen G. Stibor who died on June 22, 1971. Grant J. Stibor, the defendant-respondent is the surviving husband of the decedent. During her lifetime Mrs. Stibor had been married three times, the appellant being issue of the first marriage of decedent to Ronald Gould. Following the death of Ronald Gould, decedent married John H. Glenn, and after his death she married the respondent. During the marriage of decedent and Mr. Glenn, they acquired the property involved herein and described as lots 1, 2 and 3 of block 9 of Brumback's Addition to the City of Boise. After the death of Mr. Glenn, the probate court of Ada County entered its decree setting the property over to the decedent. On August 31, 1970, Mrs. Stibor executed a warranty deed to the property naming her daughter as the grantee. Mrs. Stibor's signature was acknowledged, and the deed was recorded by appellant at the request of her mother on the same day.

There are two dwellings on the property in question, one facing Harrison Boulevard and the other on Lemp Street. After executing and recording the deed Mrs. Stibor and respondent continued to reside in the home facing on Harrison Boulevard, and also managed and collected the rents from the other home. Following Mrs. Stibor's death the respondent remained in possession of the home on Harrison Boulevard and continued to manage and collect rents from the other house.

In her complaint appellant sought possession of the property and damages for its wrongful occupation. Respondent answered the appellant's complaint, generally denying the allegations thereof and counter-claimed, contending that he had a community property interest in the property.

At trial before the court sitting without a jury, the appellant introduced in evidence the decree of the probate court in the estate of Mrs. Stibor's second husband, which held that the real property was the community property of Mrs. Stibor and her second husband and following the death of her second husband it was her sole and separate property. The appellant also introduced in evidence the warranty deed to the property executed by Mrs. Stibor which purportedly conveyed to the appellant the fee simple title to the property. The deed was acknowledged and recorded in the county recorder's office. The appellant testified and, following her examination and cross-examination, rested. The respondent then moved for dismissal of the action. The trial court rendered its opinion granting the motion and later entered findings of fact, conclusions of law and judgment of dismissal.

The trial court found that the decedent retained possession and control of the property and continued to manage it between the time of the execution and delivery of the deed and her death, that the decedent did not intend that title pass immediately to the plaintiff, but rather the decedent intended the deed to be effective and title pass upon her subsequent death. The trial court held that this was an attempted gift causa mortis and that the title to the real property remained in the decedent. Appellant challenges the findings of fact and conclusions of law by appropriate assignments of error.

The intent of the grantor of a deed at the time of its delivery is the controlling factor in a case such as this. Gonzaga University v. Masini, 42 Idaho 660, 249 P. 93 (1926); Crenshaw v. Crenshaw, 68 Idaho 470, 199 P.2d 264 (1948). Thus, the issue dispositive of this appeal is whether the record sustains the trial court's finding that the decedent did not intend to pass title upon execution and delivery of the deed.

Appellant, in addition to introducing the two exhibits, i. e. the decree of the probate court and the recorded deed, testified that her mother's attorney had prepared the deed, that appellant picked it up from the attorney and took it to her mother to sign, and that at her mother's request appellant had the deed recorded. She testified in response to an inquiry as to what consideration appellant had given her mother, '(w)ell, what she told me was she was giving it to me.'

'Q. Did you discuss with your mother, Mrs. Hartley, who owned the property after the deed was given?

A. Yes sir.

Q. Who was the owner after the deed was given?

A. I was.

Q. But you agreed with her that she could live on there during her lifetime and collect the rents; is that right?

A. That's right.'

Appellant also explained that she considered that her mother had the use of the property as long as she was alive even though the title to the property stood in appellant's name.

For a valid delivery of title to take place there must be not only an actual manual transfer of the instrument itself to the grantee, either by actual delivery or by constructive delivery, ¹ but also the grantor must have the intent to pass immediate and present title to the property. Bowers v. Cottrell, 15 Idaho 221, 96 P. 936 (1908). See, Whitney v. Dewey, 10 Idaho 633, 80 P. 1117 (1905); Gonzaga University v. Masini, supra; Johnson v. Brown, 65 Idaho 359, 144 P.2d 198 (1943); Crenshaw v. Crenshaw, supra; Claunch v. Whyte, 73 Idaho 243, 249 P.2d 915 (1952); Brett v. Dooley, 80 Idaho 237, 327 P.2d 355 (1958); Williams v. Williams, 82 Idaho 451, 354 P.2d 747 (1960).

Possession of a deed by a grantee, in the absence of evidence to the contrary, raises a presumption of delivery. Holland v. Beames, 71 Idaho 343, 231 P.2d 741 (1951); Brummund v. Romig, 59 Idaho 312, 81 P.2d 1085 (1938). Recordation of a deed also creates a presumption of delivery. Hiddleson v. Cahoon, 37 Idaho 142, 214 P. 1042 (1923); Idaho Trust Co. v. Eastman, 43 Idaho 142, 249 P. 890 (1926).

Although recordation is not essential to the validity of a deed (absent intervening rights), the recording of the deed by appellant at the decedent's request is prima facie evidence of appellant's acceptance of title to the property. 8 Thompson on Real Property, § 4240 (1963). In this case a presumption of delivery arises from the appellant's possession of the deed, and recordation of the deed at the grantor's knowledge and direction evidences a valid delivery of the deed to the grantee which encompasses the requisite intent of the grantor to pass title. See, Wilson v. McDaniel, 250 Ark. 316, 465 S.W.2d 100 (1971); Belli v. Bonavia, 167 Cal.App.2d 275, 334 P.2d 196 (1959); Hinchliffe v. Fischer, 198 Kan. 365, 424 P.2d 581 (1967); Cartmill v. Evans, 498 S.W.2d 541 (Mo.1943); Coryell v. Kibbe, 80 N.M. 507, 458 P.2d 582 (1969); Blanchard v. Gordon, 418 P.2d 678 (Okl.1966); Halleck v. Halleck, 216 Or. 23, 337 P.2d 330 (1958); Hampton v. Gilleland, 61 Wash.2d 537, 379 P.2d 194 (1963). Under I.C. § 55-604 a fee simple title is presumed to be intended to pass; ² and under I.C. § 55-606 such conveyance is conclusive against the grantor and all claiming under the grantor. ³

Where there is a valid delivery of the deed, with the requisite intent on the part of the grantor, the fact that the grantor retains possession of the premises does not necessarily invalidate the deed. Walsh v. Kennedy, 115 Mont. 551, 147 P.2d 425 (1944); Ogg v. Gunderson, 74 Cal.App.2d 384, 168 P.2d 793 (1946); Hackett v. Hackett, 429 P.2d 753 (Okl.1967); Corkins v. Corkins, 358 Mich. 691, 101 N.W.2d 362 (1960).

In Corkins v. Corkins, supra, that court stated:

'It is not, of course, inconsistent with the passage of a present title, particularly in a father-son relationship, that the incidents of management be retained by a grantor. While such facts are material to our consideration, they are not conclusive and must be weighed with all others pertinent to the problem. Such constitute the 'circumstances surrounding the transaction." 101 N.W.2d at 364.

At this juncture it should be pointed out that at the time the appellant had rested her case the respondent had not submitted any proof in support of his case. In summary, at the time of the motion for dismissal, the trial court had before it the two exhibits, i. e., the probate decree setting the property over to Mrs. Stibor as her separate property and the acknowledged and recorded warranty deed from Mrs. Stibor to appellant, together with appellant's testimony. Thus, at this time...