Holohan v. Melville

• Citation: 249 P.2d 777,41 Wn.2d 380
• Decision Date: 30 October 1952
• Docket Number: No. 31915,31915
• Parties: HOLOHAN, v. MELVILLE et al.
• Court: United States State Supreme Court of Washington

Page 380

41 Wn.2d 380

249 P.2d 777

HOLOHAN, v. MELVILLE et al.

No. 31915.

Supreme Court of Washington, en Banc.

Oct. 30, 1952.

Royal & Abbott, Seattle, for appellant.

Acheson & Smith, Seattle, for respondent.

DONWORTH, Justice.

Plaintiff brought this action to quiet title in her to an undivided one-fourth interest in two tracts of land, for a partition of the tracts, for a judgment for the value of the use of one of the tracts and for an accounting of moneys received upon a contract of sale of a third tract. An order of default was entered against defendant Nina R Bogue. Defendant Grace Melville answered, denying the material allegations of the complaint and praying that the action be dismissed.

The action was tried to the court sitting without a jury. At the conclusion of the trial, the court made findings of fact, drew conclusions therefrom in favor of defendant Melville and entered a judgment of dismissal. Plaintiff has appealed. Defendant Bogue is not a party to this appeal.

The facts of the case are not in dispute. Appellant and defendant Bogue are sisters and the sole heirs at law of Myrtle Jane Reck, who died March 31, 1945. Defendant Bogue was the administratrix of the estate of Miss Reck; the administration of the estate has been closed. The tracts here in dispute were not inventoried in the estate.

Respondent and Miss Reck, both spinster school teachers, were close personal friends and lived together in Seattle for approximately twenty-five years until Miss Reck's death in 1945. During this time they purchased together, on contract, a residence in Seattle which they occupied as their home. This tract will hereafter be referred to as the Seattle property. They, also, purchased together another tract of land located in Grays Harbor county, hereafter referred to as the Ocean property. The deeds by which they acquired title are not in evidence, but it appears to be conceded by the litigants that both respondent's and Miss Reck's names appear thereon as grantees.

At some time prior to April 14, 1937, respondent and Miss Reck orally agreed that the survivor of them should have complete ownership of these two tracts. On April 14, 1937, they consulted an attorney, who has since ceased active practice of the law, informed him of their oral agreement for survivorship and requested him to prepare such instruments as were necessary to effectuate their agreement. The attorney thereupon prepared a will which respondent executed and in which she devised all real estate standing in her name to Miss Reck. At the same time, the attorney prepared and Miss Reck executed two quitclaim deeds conveying her interest in the Seattle and Ocean properties to respondent. The two teachers then instructed the attorney to hold the deeds and the will until the death of one of them and then deliver all the instruments to the survivor. This, the attorney did and, upon Miss Reck's death, the deeds and the will were delivered to respondent, who had the deeds recorded.

Subsequent to 1937, respondent and Miss Reck purchased together, on contract, a farm located near Gold Bar, Washington. After the contract had been paid in full, Miss Reck directed that the deed name respondent as the sole grantee, stating as her reason for so doing that she wanted respondent to have title to the property so that it would be respondent's upon her death. Respondent has, since Miss Reck's death, sold the Gold Bar property on contract and is receiving payments thereon.

With reference to the Seattle and Ocean properties, the court found that it was agreed between Miss Reck and respondent, and was so understood by the attorney, that delivery of the deeds and the will to him was irrevocable as to each and all of the instruments, but no finding was made as to when Miss Reck intended that title should pass. The court concluded that title to the two properties passed and vested in respondent, subject only to a life estate in Miss Reck as to her one-half interest, at the time the deeds were executed and left with the attorney. The court further concluded that respondent's will of April 14, 1937, was irrevocable during the lifetime of Miss Reck.

Appellant assigns errors to the finding that delivery of the deeds and the will to the attorney was irrevocable and to the two conclusions of law set forth above. Appellant assigns error, also, to the admission of certain evidence. In our view of the case, however, it will not be necessary to discuss the errors claimed in rulings on admission of evidence.

The attorney who drew the instruments of April 14, 1937, testified that the instructions given to him were, substantially, that he was to keep the three instruments together and deliver all of them to the survivor of respondent and Miss Reck. It was also his understanding that the instruments could not be withdrawn during the lifetime of both, except with their mutual consent.

Admittedly, then, if Miss Reck had survived respondent her deeds would have been returned to her. There would have been, in such event, no delivery of the deeds to respondent. The placing of the deeds with the attorney was a conditional delivery only, i. e., if Miss Reck were the survivor they would be returned to the grantor, but if respondent survived then the deeds were to become effective.

Respondent argues that the agreement between these ladies contemplated an immediate passing of title, not conditioned upon survivorship; that if Miss Reck had survived and reclaimed the deeds (since title had passed to respondent), she would necessarily have had to record the deeds and then could have reacquired her one-half interest along with respondent's one-half interest by virtue of respondent's will. The only defect in this reasoning is that there is no evidence that the mutual agreement contemplated any such circuitous transfer of title.

We need not determine whether it was agreed that the act of depositing the deeds with the attorney should be irrevocable or whether Miss Reck had parted with dominion and control over the deeds, for the only conclusion which can be reached under the facts is that the attorney was not to deliver the deeds to the grantee upon the happening of an event certain to occur in the future (the survival of respondent). He was to deliver the deeds to the grantee only upon a condition, to wit, that the grantee survive the grantor. Thus there was no intention on the part of the grantor to make a presently operative conveyance.

As we said in Nichols v. Oppermann, 6 Wash. 618, 34 P. 162, 163:

'To constitute a deed, there must be a delivery to the grantee personally, or to some third person for him. A deposit of a deed with a third person, to be delivered to the grantee upon the happening of some future certain event, has been held sufficient to constitute the deed an escrow, and control of it in such a case has passed out of the grantor's hands. But where the happening of the event is uncertain, or where the grantor retains or reserves control over the instrument, it is not an escrow.'

In Bloor v. Bloor, 105 Wash. 110, 177 P. 722, 723, where we assumed, for the sole purpose of considering another question, that under the similar facts of that case there had been an absolute delivery of the deeds there in question, we said:

'It is fundamental that a deed will not operate as a conveyance unless there is a present intention to part with the title, although possession may be withheld for a time certain or during the lifetime of the grantor.'

Where deeds are delivered into escrow under an agreement that they shall be delivered to the grantee after the death of the grantor, but subject to the condition that if the grantor should survive the grantee they shall be returned to the grantor, there can be no intention of the grantor that they should presently convey title. Such a delivery is not absolute, but conditional, and no title is intended to be passed until the grantor's death. Under such circumstances the deeds are testamentary in character. In re Edwall's Estate, 75 Wash. 391, 134 P. 1041; Stone v. Daily, 181 Cal. 571, 185 P. 665; Leatherman v. Abrams, 86 Ohio App. 149, 90 N.E.2d 402. For failure to comply with the requirements of the statute of wills the deeds are abortive attempts to pass title to property at death.

Respondent cites a number of our decisions, including Swingley v. Daniels, 123 Wash. 409, 212 P. 729, in support of her argument that there was an oral contract to devise land which was executed on her part when she left her will of April 14, 1937, with the attorney. In the Swingley case, however, the deeds involved were actually delivered. Neither it nor the other cases relied upon are in point.

Respondent relies, also, upon a number of our decisions beginning with Matson v. Johnson, 48 Wash. 256, 93 P. 324, and Maxwell v. Harper, 51 Wash. 351, 98 P. 756, wherein we have held that delivery of a deed to a third person for delivery to the grantee upon death of the grantor was effective to pass title. We have upheld such deeds, however, only when it has been proved that the grantor intended that title should pass presently. There is no such proof here.

We, therefore, conclude that the court erred in drawing its conclusion of law that title to the two tracts vested in respondent, subject to a life estate in Miss Reck as to her one-half interest, at the time the deeds were left with the attorney.

Respondent urges, however, that her mutual agreement with Miss Reck that the survivor should take all the real property was effective to establish a joint tenancy between them; that a joint tenancy with the right of survivorship may be established by contract, citing In re Ivers' Estate, 4 Wash.2d 477, 104 P.2d 467, wherein we gave effect to a contract between husband and wife for joint ownership with right of survivorship of community funds in a 'joint' bank account. We shall review this contention.

In 1885 there was enacted 'An Act to abolish...