Hoard v. Jones

• Decision Date: 11 July 1925
• Docket Number: 25,959
• Citation: 237 P. 888,119 Kan. 138
• Parties: ISABELLE HOARD, Appellee, v. MARY B. JONES et al., Appellants and Appellees, VERBIA A. MOORMAN, Appellant, and WILMA HOARD and C. W. HOARD, Appellees
• Court: Kansas Supreme Court

237 P. 888

119 Kan. 138

ISABELLE HOARD, Appellee, v. MARY B. JONES et al., Appellants and Appellees, VERBIA A. MOORMAN, Appellant, and WILMA HOARD and C. W. HOARD, Appellees

No. 25,959

Supreme Court of Kansas

July 11, 1925

Decided July, 1925.

Appeal from Saline district court; DALLAS GROVER, judge.

Judgment modified.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACTS--Invalidating Written Instrument--Evidence--Sufficiency. When a party voluntarily signs and delivers an instrument affecting property rights and thereafter seeks to refute it on the ground of fraud of the other party thereto which induced its execution, such fraud should be made clearly to appear before the instrument is declared invalid.

2. HUSBAND AND WIFE--Antenuptial Agreements--Revocation. An antenuptial agreement may be revoked by the parties after their marriage by mutual consent, or by an agreement based upon a sufficient consideration.

3. SAME--Antenuptial Agreements--Contract to Revoke--Consideration. The consent of the wife to execute a deed to the homestead is sufficient consideration to support a contract with her husband to revoke an antenuptial agreement.

4. FRAUDS, STATUTES OF--Operation and Effect--Revocation of Contract. The statute of frauds deals with the making of contracts rather than with their revocation; hence, though a contract is one which, by the statute of frauds, must be in writing to support an action, it may be revoked by parol.

5. SAME--Operation and Effect--Modification of Contract. A modification of a contract is in effect the making of a new contract, and if the original contract to be enforceable by action must be in writing under the statute of frauds, a modification of the contract to be enforceable by action must be in writing.

6. DEEDS--Delivery--Burden of Proof--Evidence. The possession by the grantee, or by a third person for the grantee, of a deed, duly executed and acknowledged, purporting to convey full title to real property, with the grantor's reservation of its use during his life, raises a presumption of delivery which can be overcome only by clear and convincing evidence. The burden of showing nondelivery is upon those who contend that such deed was not delivered.

7. SAME--Delivery--Evidence. H. and wife executed two deeds for separate properties, one to M. and one to J., daughters of H. by a former wife, reserving the use of the properties during the life of H. H. went to a bank with M., rented a safety-deposit box in her name, giving her the receipt therefor, gave her a key to the box, showed her (she was blind) how to lock and unlock the box, placed the two deeds in the box and told her what they were and what he was doing, and told her to keep the one to her and to deliver the other to her sister J. after his death, which M. did. Held, this constituted a valid delivery of the deeds from the grantor to M. And further held, the fact that H. retained a key to the box, of itself, in the absence of any evidence that he did so in order to retain control of the deeds, will not overcome the evidence of their delivery.

8. SAME--Delivery--Necessity. H. bought and paid for two residences, and at his request the vendor executed two deeds to him, blank as to grantee, which blanks he was authorized to fill. H. took possession of the properties, made substantial improvements thereon, and remained in possession until his death some three years later. After his death the deeds were found unrecorded among his private papers in his safety-deposit box at the bank. When found, the name of M., a daughter, had been written by H. as grantee in one of them, and the name of J., another daughter, as grantee in the other. Held, the deeds as found indicated gifts to the daughter intended to take effect at H.'s death; that they are not sufficient for that purpose, as they were not executed as required by the statute for executing wills, and that the real property described in them is subject to partition among the heirs of H.

9. SAME--Delivery--Uncontroverted Question--Directed Verdict. The question of the delivery of a deed is largely a question of intention, ordinarily to be determined by the jury or trial court as a question of fact, but when the facts are not controverted the question should be determined by the court as a question of law, and when the facts have been fully tried, leaving only questions of law to be decided, this court may direct the entry of a proper judgment--following Worth v. Butler, 83 Kan. 513, 112 P. 111.

J. O. Wilson and J. H. Wilson, both of Salina, for appellant Verbia A. Moorman; A. R. Buzick, Jr., and William S. Norris, both of Salina, for the appellants and appellees Mary B. Jones, W. H. Jones and Horace Jones.

Z. C. Millikin, of Salina, for appellee Isabelle Hoard; C. W. Burch, B. I. Litowich, and LaRue Royce, all of Salina, for appellees Wilma Hoard and C. W. Hoard.

Harvey J. Burch, J., not sitting.

OPINION

HARVEY, J.:

This is an action to partition real property among the heirs of William Hoard, deceased. The plaintiff is his widow and the defendants are his children and grandchildren by a former marriage. It was tried to the court with an advisory jury. The controverted questions relate to an antenuptial agreement, which was set aside by the court; to the delivery of two deeds, one to each of two children, under which they respectively claimed specific property, which claims were disallowed by the court; and to property purchased by William Hoard, for which he took deeds blank as to grantee and later wrote in the names of certain of his children as grantees, under which deeds they respectively claimed those properties, which claims were disallowed by the court. Defendants whose claims were disallowed have appealed.

The property is situated in the city of Salina and consists of three separate properties, which are known to the parties as the North Santa Fe property, the South Santa Fe property and the Walnut street property. The North Santa Fe property is a two-story brick building. The first floor was rented for a meat market and the second was used as a rooming house. It is the most valuable property of the three. The South Santa Fe property consists of two buildings situated on adjoining lots, or parts of two lots, rented and used as garages. The Walnut street property consists of two residence properties on adjoining lots or tracts.

In 1906 William Hoard and his first wife, who were then living on a farm in Saline county, became estranged and separated. The farm was sold, a financial settlement was made, and they were divorced in 1909. They had four children: Mary B. Jones, who was married and living in Salina; Verbia A. Moorman, who was married and living on a farm near Solomon, in Saline county; Wilma Hoard, then teaching school in Iowa; and C. W. Hoard, a son, seventeen, who was living at home. After the separation Mrs. Hoard and her son moved to Salina, where they lived for two or three years, then went to Indiana, where the daughter Wilma was then teaching. Since then the mother has made her home with Wilma, wherever she was teaching. In a few years they went to California, where they have since lived. C. W. Hoard lived with his mother and sister until he was twenty-one, then entered the postal service, where he was employed for ten years, and in 1920 went in business for himself in New Mexico. Since the separation of her parents Wilma visited her father once, in 1917. She wrote him a few letters, which he did not answer. In that time C. W. Hoard visited his father once in 1920 and twice in 1921. At each of these visits he sought financial assistance. His father signed notes for him at a Salina bank, and later paid them. In this action the administrator sought to collect on these notes, but they were held to represent gifts, and there is no appeal from that ruling.

After the separation from his wife in 1906, William Hoard first lived for a few months at the home of his daughter, Mrs. Moorman; then for about a year he lived with his daughter, Mrs. Jones, at Salina. He then set up housekeeping in a residence situated on the South Santa Fe property. At first he had his sister, Mrs. Reynolds, as his housekeeper; later he employed the plaintiff in this action, then Mrs. Erickson. She was a widow and had three grown children; two of her daughters were married and lived in Salina. He conducted a boarding house and plaintiff did the cooking and housework. By this time he had bought the North Santa Fe property and was running a rooming house on the second floor. Plaintiff helped keep that. This continued until plaintiff and William Hoard were married. On December 10, 1914, they executed an antenuptial contract, which provided:

"Whereas an immediate marriage is intended to be had between said parties of the first and second part, and each of said parties is fully informed as to what their right would be as husband and wife in the property of the other under the laws of the state of Kansas, and are desirous of settling in advance their property rights as to property now severally owned by them and as to all property they or either of them may hereafter acquire.

"Now therefore, in consideration of said intended marriage and the promises, covenants and agreements contained herein, it is hereby covenanted and agreed that said William Hoard may and shall during the continuation of said marriage so intended, and after separation by death or otherwise, separately use, possess, mortgage, convey and dispose of all property of every kind and description and wherever situated and now belonging to him and all property which he may hereafter acquire and own, and all the rents, issues and profits thereof, to whomsoever he may choose and in whatsoever manner he may desire, in the...