Janes v. Janes

• Decision Date: 23 November 1943
• Citation: 153 Fla. 716,15 So.2d 677
• Parties: JANES v. JANES et al.
• Court: Florida Supreme Court

15 So.2d 677

153 Fla. 716

JANES v. JANES et al.

Florida Supreme Court

November 23, 1943

Rehearing Denied Dec. 7, 1943.

Appeal from Circuit Court, Hardee County; R. H. Rowe, Judge.

Leitner & Leitner, of Arcadia, for appellant.

W. W Whitehurst, of Wauchula, for appellees.

THOMAS, Justice.

The appellant, who was the plaintiff, in the chancery court, instituted a suit against his mother, the appellee Anna H. Janes, and his brother, the appellee Marion Janes, seeking a decree cancelling two deeds. In one of them Anna H. Janes was grantee and she and her husband, now deceased, were grantors in the other she was grantor and the appellee Marion Janes was grantee. It was the theory of the plaintiff that the former instrument was ineffectual as a conveyance because it was not delivered and that therefore, having received no title under it, Anna H. Janes had none which she could convey in the latter. Inasmuch as the appellee Marion Janes reconveyed the property to the appellee Anna H. Janes about the time the suit was commenced there is no need to dwell upon this transaction, but we will concern ourselves solely with the validity of the deed from Anna H. Janes and her husband to hereself.

At the outset it might be well to define the burden which the appellant undertook if he expected to prevail in the suit. Although 'Delivery of a deed is essential to the passing of the title to the property intended to be conveyed to the grantee', Pratt et al. v. Carns et al., 80 Fla 243, 85 So. 681, 683, there is presumed to have been a delivery where the grantee has possession of the instrument Wilbur v. Grover et al., 140 Mich. 187, 103 N.W 583. While it has been decided that delivery is as indispensable to the validity of a deed between members of a family as between persons unrelated, Culver et al. v Carroll, 175 Ala. 469, 57 So. 767, Ann.Cas.1914D, 103, yet it has been recognized that the presumption favoring delivery is stronger in transfers like the one we are considering than in ordinary cases of bargain and sale, Shields v. Bush et al., 189 Ill. 534, 59 N.E. 962, 82 Am.St.Rep. 474. In the instant case it was the plaintiff's task to establish the failure of delivery, the presumption being against him if it developed that the challenged deed had come into the possession of the grantee. It is our view that the question was determinable only by weighing carefully all of the circumstances surrounding the transaction.

In more than forty years of married life the appellee Anna H. Janes and her husband had been industrious, had accumulated the property in question, and the homestead which is not involved in this controversy. They reared and educated four sons, two besides the appellant and the appellee. At the time of his death, 12 July 1940, they lived in the City of Wauchula. They derived their income from the land described in the deed which was set in citrus grove. In their home there was a strong-box in which they kept papers of any value. Evidently it was accessible to both.

On 17 October 1933 the husband and the wife executed a deed transferring to her the property situated in the country, and the instrument was placed in the strong-box which they both used. Appellant prepared the deed; he signed it as a witness; and its execution by the grantors was acknowledged before him. The significance of his connection with the transaction will become more apparent as the facts are discussed.

Shortly after the death of F. G. Janes, Sr., Anna H. Janes was appointed administratrix of his estate. The appellant, F. G. Janes Jr., according to his own testimony, prepared the necessary papers for signature by her. The deed executed about eight years before was recalled by Anna H. Janes and removed from the strong-box. Meanwhile she had been advised by friends that she could claim a dower interest in the estate; consequently 8 March 1941 she presented to the county judge her petition for an assignment of dower. Three months later the county judge entered his order declaring that the property did not constitute any portion of the estate of F. G. Janes, Sr., because long prior to his death it had been transferred to Anna H. Janes. Upon these circumstances, that is, the apparent inconsistencies in the positions of Anna H. Janes in representing at the time of her appointment as administratrix that the...