Jobse v. U.S. Nat. Bank of Portland

• Decision Date: 25 April 1933
• Citation: 21 P.2d 221,142 Or. 692
• Parties: JOBSE v. UNITED STATES NAT. BANK OF PORTLAND et al.
• Court: Oregon Supreme Court

21 P.2d 221

142 Or. 692

JOBSE v. UNITED STATES NAT. BANK OF PORTLAND et al.

Supreme Court of Oregon

April 25, 1933

Department 2.

Appeal from Circuit Court, Clackamas County; Earl C. Latourette Judge.

Suit by Mary F. Jobse against the United States National Bank of Portland, as executor and trustee under the last will and testament of Peter H. Jobse, deceased, and others. From an adverse decree, defendants appeal.

Affirmed.

A. B. Ridgway and Harry E. Hall, both of Portland (Ridgway, Johnson & Kendall, of Portland, on the brief), for appellants.

Walter L. Tooze, of Portland (Clarence Butt, of Newberg, on the brief), for respondent.

RAND Chief Justice.

On May 20, 1911, plaintiff's husband, now deceased, went to the Farmers' Bank at Wilsonville, Or., and employed Mr. J. J Thornton, its cashier, to prepare two deeds conveying two tracts of land to plaintiff, his wife, who was present at the time. Thornton prepared the deeds as directed, and decedent and plaintiff then signed the deeds, which were duly executed in all respects. At the same time and while at the bank decedent directed Thornton to prepare a letter of instructions to be attached to the deeds, setting forth the disposition he desired to be made of them. Thornton then prepared the letter and decedent signed it. It reads as follows:

"J. W. Thornton,

"Joe J. Thornton-Proprietors

"The Farmers' Bank

"Wilsonville, Oregon, May 20, 1911.

"The Farmers' Bank,

"Wilsonville Oregon.

"Gentlemen:

"Please deliver attached two deeds, one to 49.90 acres, and one to one-half interest in roadway, being what is known as the Tauchmann Place, situated at Wilsonville, Oregon, to my wife, Mary Jobse, upon my death.

"[Signed] P. H. Jobse."

These instructions were then attached to the deeds, and all said papers were then delivered by decedent to Thornton, as cashier of the bank, to be held by the bank in accordance with said instructions. Decedent died on September 23, 1931, leaving a will which gave in trust to the defendant bank all his property including that in controversy here. The will was executed on June 3, 1929, and provides that all the net income of the trust property shall be paid over to plaintiff during her natural life or until she shall remarry, and that, upon her death or remarriage, the income shall then be divided between two of decedent's nephews, defendants herein, and be paid to them in equal proportions, and gave to the trustee the power to sell the particular premises described in the deeds. The lands in controversy are in the possession of the plaintiff and have been since the death of her husband. She brought this suit to remove a cloud from the title of the lands and to compel the defendant bank, as executor and trustee under the will, to surrender up and deliver to her the two deeds which, upon the death of her husband, came into the bank's possession. Plaintiff had decree in the court below, and defendants appealed.

Thornton was called as a witness by plaintiff. He testified that the only instructions given by the decedent at the time the deeds were executed and delivered to the bank were those contained in the writing, and that there were no reservations attached by decedent to the delivery of the deeds; that the delivery was absolute and unconditional upon the part of the grantor; that he continued to act as cashier of the bank until January 1, 1918, when, having sold his interest in the bank, he discontinued his connection therewith; and that, up to the time he left the bank, the deeds had never been removed therefrom.

It appears, however, from the testimony of plaintiff that, after Mr. Thornton had left the employ of the bank, decedent withdrew the papers from the bank and deposited them for a while in a box at their home to which they both had access, and then, in contemplation of a trip they were about to take, decedent took the deeds and deposited them, with other securities, in a safety deposit box in one of the Portland banks, to which both of them had access, and later he deposited them in a safety deposit box of the defendant bank; both plaintiff and decedent having access thereto. Upon decedent's death, these papers were taken into the custody of the defendant bank, as executor of decedent's will, with the identical letter attached to said deeds that decedent had had attached thereto when he first delivered them to the Farmers' Bank at Wilsonville.

There is no controversy or dispute as to any material fact in this case. The only evidence offered was the testimony of Thornton, the scrivener who prepared the deeds, Mrs. Jobse the plaintiff, and Mr. Baker, a representative of the bank, and the writings referred to. Mr. Thornton's testimony we have already referred to. Mrs. Jobse, in respect to the delivery of the deeds, testified substantially as did Mr. Thornton. Mr. Baker testified only in respect to the actions of the bank in the custody and control of the papers. The bank offered no evidence in its own behalf and relies wholly upon acts subsequently performed by decedent after his delivery of the deeds to the Farmers' Bank, such...