Kelsa v. Graves

• Decision Date: 05 April 1902
• Docket Number: 12,579
• Citation: 64 Kan. 777,68 P. 607
• Parties: JAMES L. KELSA v. HATTIE M. GRAVES et al
• Court: Kansas Supreme Court

68 P. 607

64 Kan. 777

JAMES L. KELSA v. HATTIE M. GRAVES et al

No. 12,579

Supreme Court of Kansas

April 5, 1902

Decided January, 1902.

Error from Stafford district court; ANSEL R. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONVEYANCE -- Constructive Delivery of Deed. It is not necessary that there should be a manual delivery of a deed to make it effectual. A constructive delivery or any words or acts showing an intention on the part of the grantor that the deed shall be considered as completely executed and the title transferred are sufficient.

2. CONVEYANCE -- Recording of Deed Held a Delivery. The recording of the deed in question, as well as other acts of the parties showing an intention of the parties to treat the instrument as a conveyance and as a passing of the title, are held to be sufficient proof of the delivery by the grantor and acceptance by the grantee.

Prigg & Williams, for plaintiff in error.

Moseley & Dixon, for defendants in error.

JOHNSTON J. CUNNINGHAM, POLLOCK, JJ., concurring.

OPINION

JOHNSTON, J.:

This was an action to set aside a deed of conveyance from James L. Kelsa to H. M. Andrews, and to recover possession of the tract of land purporting to have been conveyed by the deed. On November 11, 1890, Kelsa, who owned a quarter-section of land in Stafford county executed a deed conveying the same to H. M. Andrews, and it was at once placed on record by him. He says that the grantee named in the deed was a sister, while defendants claim that the conveyance was made to Hattie M. Andrews, a daughter of his sister, who has since intermarried with the defendant John Graves. He claims that while he was in poor health and about to make a trip west he executed the deed and had the same recorded, intending that it should not be delivered unless he failed to return from California, or should die during his absence; that his sister to whom the conveyance was made subsequently died, after which he destroyed the deed. On behalf of the defendants, it is said that Hattie M. Graves is the daughter of Mrs. Andrews, and that when the deed was executed she was a maiden, and was properly designated as H. M. Andrews. She claims, however, that her mother's name was Hattie Elizabeth M. Andrews and that, therefore, the name in the deed does not correspond with her mother's name, but is her own maiden name, and that the plaintiff had frequently declared to her and to others that the conveyance was made to her and that the land was hers.

It was also alleged, and proof was offered tending to show, that one purpose of the conveyance was to divest himself of any ownership of land in Kansas in order that he might obtain land in Oklahoma. He did enter land in Oklahoma, and, in order to do so, he was required to prove, and did make an affidavit, that he was not the owner of 160 acres of land in any state or territory. In making the entry he used the name of James Loring, his full name being James Loring Kelsa. The court below, upon conflicting testimony as to the identity of the grantee in the deed, and also as to whether there was such a delivery of the deed as to divest the plaintiff's title, made a general finding in favor of the defendants, and rendered judgment against the plaintiff. There is abundant testimony to sustain the finding that the conveyance was intended for the plaintiff's niece, Hattie M. Andrews, now Hattie M. Graves, and not for his sister,...