Johnson v. Brown, 7118

• Decision Date: 22 December 1943
• Docket Number: 7118
• Citation: 144 P.2d 198,65 Idaho 359
• Parties: MYRON D. JOHNSON, Public Administrator of Lincoln County, Idaho, as administrator of the estate of Grayce Pease, deceased, Respondent, v. GEORGE M. BROWN, Appellant
• Court: Idaho Supreme Court

144 P.2d 198

65 Idaho 359

MYRON D. JOHNSON, Public Administrator of Lincoln County, Idaho, as administrator of the estate of Grayce Pease, deceased, Respondent, v. GEORGE M. BROWN, Appellant

No. 7118

Supreme Court of Idaho

December 22, 1943

1. Pleading

In administrator's action to set aside deceased's deed to defendant, trial amendment of complaint, theretofore sounding only in fraud, by adding allegation that deceased did not deliver deed to defendant during deceased's lifetime is deemed denied. (I.C.A., sec. 15-810.)

2. Pleading

Allowance of trial amendment to complaint is largely within trial court's discretion. (I.C.A., sec. 5-905.)

3. Trial

In equitable action, jury acts only in advisory capacity.

4. Executors and administrators

In administrator's equitable action to set aside deceased's deed to defendant as defrauding deceased's creditors, court alone had ultimate right to dispose of issue, raised by trial amendment to complaint, as to whether deceased, during her lifetime, delivered deed to defendant though court indicated that such issue would be presented to jury. (I.C.A., sec. 15-810.)

5. Deeds

A deed to be effective, must be irrevocably delivered, that is, with irrevocable intent to divest grantor of title to realty conveyed, though he retains temporary title to or possession of it.

6. Deeds

Irrevocable delivery of deed by grantor to grantee may be either actual or constructive.

7. Deeds

The requirements for transfer of title to realty by deed are complied with, if surrounding and attendant facts and circumstances clearly show grantor's irrevocable intent to transfer title and there are physical acts supporting such intention and fixing definitely symbolical or constructive delivery of deed to grantee, though grantor retains physical possession thereof.

8. Deeds

Where grantor parts with all right to control of deed and intends that it shall operate presently to pass title to grantee, sufficient delivery thereof is made, though manual possession of deed remains with grantor.

9. Deeds

In administrator's suit to set aside deceased's deed to defendant, evidence showed that grantor, before her death by suicide, formed irrevocable intent to transfer to defendant property conveyed, so as to establish constructive delivery of deed, though it remained in grantor's physical possession until her death. (I.C.A., sec. 15-810.)

10. Fraudulent conveyances

Where amount of mortgage debt was approximately value of mortgaged realty at time of mortgagor's transfer thereof to mortgagee by deed, there was good and adequate consideration for transfer, and deed was not void as defrauding grantor's other creditors.

Appeal from the District Court of the Fourth Judicial District for Lincoln County. Honorable D. H. Sutphen, District Judge. Action to set aside deed. Appeal from judgment for plaintiff. Reversed.

W. L Dunn, for appellant.

Ralph R. Breshears, for respondent.

GIVENS J. Holden, C.J., and Ailshie, Budge, and Dunlap, JJ., concur.

OPINION

GIVENS, J.

This action was brought under sec. 15-810. I.C.A. ^[1] by respondent, public administrator of Lincoln County, as administrator of the estate of Grayce Pease, deceased, to set aside and declare fraudulent and void, because of her asserted insolvency, known to the grantee, a deed executed by deceased to appellant.

Appellant testified Miss Pease owed him $ 535.68 at the time of her death. Miss Pease's sister-in-law, Mrs. Clyde Pease, testified she had overheard Miss Pease and Mr. Brown state such loans amounted to approximately $ 600. The afternoon of March 27, 1941, Miss Pease acknowledged a deed dated November 15, 1940, conveying the house in which she lived to appellant. The probate judge testified that after taking her acknowledgment he left her home, leaving the deed with Miss Pease or Mrs. Pease, who had witnessed the deed. Miss Pease committed suicide three-quarters of an hour thereafter.

Regarding the deed, Mrs. Pease testified:

"Q. Where was the deed and the other papers that you gave to Mr. Brown ? Where did you get them from? A. I got them out of a box.

"Q. And did your sister-in-law give them to you, or how did they get in that box? A. She had me put the box away for her.

"Q. She gave you the deed? A. She didn't give me the deed.

"Q. What did she tell you? A. She didn't tell me. I didn't know it was a deed in the box or anything until we run across the papers and other personal stuff in this box.

"Q. Then you took them out? A. Yes, they were in an envelope with Mr. Brown's name on them.

* * *

"Q. You gave that to George Brown? A. Yes."

Mrs. Pease gave the envelope containing the deed (an ordinary warranty deed) and a letter ^[2] to appellant the night Miss Pease died, not knowing the deed was in the envelope until opened by appellant in her presence. Appellant did not see the deed until it was given to him after Miss Pease's death, though she had told him she had drawn the deed but that it hadn't been notarized.

Deceased gave appellant the pass-book of the Federal Savings and Loan Association, March 26, 1941, when, at her instance, he made four payments on the mortgage covering the property in question to avoid a foreclosure action. The following assignment appears on the back cover of the pass book:

"Transfer of Borrower's Membership

"The undersigned has sold the property securing the loan referred to in this loan account book and requests the association to transfer the membership to: George M. Brown, Shoshone, Idaho the purchaser of such property, who has assumed the obligation of the loan, it being understood that the transfer of such membership shall not, however, release the undersigned from obligation on the loan.

This 15th day of Nov., 1940

Signature Grayce Pease

In the presence of: Pearl Pease

* * *"

A small slip of paper pinned to the last sheet in the book contained this notation: "George sign where the blue mark is," and appellant's signature appears where the mark is, over the date "31st Day of March." Below that the loan company wrote, "Transfer entered of record 4-16, 1941."

The value of the property was placed at from $ 800 to $ 1050. After Miss Pease's death appellant improved the property to the extent of $ 275. The balance due on the mortgage on the date Miss Pease died was $ 584.92.

There were no assets of the estate, and creditors' claims of $ 5,966.29 were filed.

The trial court submitted the following interrogatories to a jury, all of which were answered in the negative:

"Was the conveyance to George M. Brown by warranty deed, recorded April 12, 1941, in Book 36 of Deeds at page 618 thereof, records of Lincoln County, Idaho, made by Grayce Pease, deceased, during her lifetime with the intent on the part of said Grayce Pease to defraud creditors of the said Grayce Pease, or to avoid any right, debt or duty of said Grayce Pease?

Did the grantee, George M. Brown, participate in consummating the conveyance with the intention of hindering, delaying and defrauding the creditors of Grayce Pease?

Did George Brown know Grayce Pease was insolvent at the time he received the deed in question?

Was the deed in question executed by Grayce Pease without a valuable consideration?"

Appellant's assignments as to the inadequacy of allegations of fraud are of no significance because the court thus found in his favor thereon.

During the course of the trial respondent amended paragraph 8 of his complaint (theretofore sounding only in fraud) by adding: "that Grayce Pease [deceased] did not during her lifetime, either by word or acts or both, deliver said warranty deed to George M. Brown," which amendment is deemed denied. (McDougald v. Argonaut Land & Development Co., 117 Cal. 87, 48 P. 1021; Glougie v. Glougie, 174 Cal. 126, 162 P. 118; Bank of Italy v. Johnson. 200 Cal. 1, 251 P. 784; Richards v. Tavares, 105 Cal.App. 261, 287 P. 552: McKelvy v. Martin. 118 Cal.App. 691, 5 P.2d 652; Rabbit v. Atkinson, 44 Cal.App. (2d) 752, 113 P.2d 14.) The parties themselves and the trial court evidently proceeded upon such assumption, thereby pre crting an issue of fact which the court found adversely to respondent, as follows:

"VIII. That the grantor, Grayce Pease, did not part with the possession of or in any way relinquish control over said warranty deed during her lifetime, and that sold Grayce Pease did not during her lifetime, either by word or acts or both, deliver said warranty deed to George M. Brown.

"IX. That said warranty deed dated November 15, 1940. and recorded on April 12, 1941, in Book 36 of Deeds at page 618 thereof, records of Lincoln County. Idaho, is null and void from the beginning and that the plaintiff is entitled to judgment declaring said deed to be void ab initio and of no force or effect."

Appellant assigns as error the amendment and that such issue was not presented to the jury. Appellant did not ask for further time to meet such issue raised by the amendment and has not shown that he was in any way prejudiced by the amendment, which was largely within the discretion of the court. (I.C.A. 5-905; Small v. Harrington, 10 Ida. 499, 79 P. 461; Cady v. Keller, 28 Ida. 368, 154 P. 629; Swanson v. Olsen, 38 Ida. 24, 220 P. 407; Hoy v. Anderson. 39 Ida. 430, 227 P. 1058; Idaho Trust Co. v. Eastman, 43 Ida. 142, 249 P. 890; Marysville Development Co. v. Marotz, 44 Ida. 469, 258 P. 180; Todd v. City of Hailey, 45 Ida. 175, 260 P. 1092; Radermacher v. Eckert, 63 Idaho 531, 123 P.2d 426; Hall v. Boise Payette Lumber Co., 63 Ida. 686, 125 P.2d 311.)

It is conceded the action is equitable, and the jury was acting only in an advisory capacity. (Pritchard v. Butler 4 Ida. 518, 43 P. 73; Brady v. Yost, 6 Ida. 273, 55 P. 542; Curtis v. Kirkpatrick, 9 Ida. 629, 75 P....