Kenobbie v. Krause

• Decision Date: 06 January 1941
• Docket Number: 8363.
• Citation: 295 N.W. 646,67 S.D. 574
• Parties: KENOBBIE v. KRAUSE et al.
• Court: South Dakota Supreme Court

295 N.W. 646

67 S.D. 574

KENOBBIE v. KRAUSE et al.

No. 8363.

Supreme Court of South Dakota.

January 6, 1941

Appeal from Circuit Court, Lyman County; Joe R. Cash, Judge.

Action by Mary Kenobbie against Emma Krause and all persons unknown who have or claim to have any interest or estate in or lien or encumbrance upon the premises described in the complaint to-wit, lots 1, 2, 3, 4, 5, 6, 9, 10, 11 and 12, in block 18 Milwaukee Land Company's Second Addition to the Town of Reliance in Lyman county, S. D., to obtain title to an undivided one-third interest in land. From an adverse judgment, named defendant appeals.

Affirmed.

A. C Miller, of Kennebec, for appellant.

M. Q Sharpe, of Kennebec, for respondent.

SMITH Presiding Judge.

In this companion case to Mary Kenobbie v. Hattie Krause et al., 67 S.D. __, 292 N.W. 873, the principal question presented is whether a clear preponderance of the evidence is against the finding of the learned trial court to the effect that a deed to the property involved herein was never in fact delivered by Ernest Krause to the defendant, Emma Krause.

The controversy involves residence property situated in Reliance, South Dakota. Plaintiff asserts title to an undivided one-third interest through succession as an heir of one Ernest Krause, and the defendant, Emma Krause, deraigns her title to the whole property through grant from Ernest Krause.

The record discloses that in August, 1927, the said Ernest Krause was the owner of several parcels of real property in and about Reliance, South Dakota, and of certain personal property. Plaintiff and one Hattie Krause are the only children of Ernest Krause and Emma Krause. On the evening of August 8, 1927, being somewhat concerned over his health, Krause called a neighbor, a justice of the peace, to his home to act as a scrivener. The work was done in the presence of defendant and Hattie Krause, but plaintiff had no knowledge thereof. During that evening several conveyances of real property, including the deed in question, and a bill of sale to personal property, were prepared and executed by Ernest Krause. As a result of the conversation which took place during the preparation of these instruments, there was noted upon each deed " This Warranty Deed good only after the Death of Ernest Krause," and on the bill of sale it was noted " This Bill of Sale good only after the Death of Ernest Krause." Before the deed in question was executed, Krause indicated to the scrivener that he did not want the above-quoted provision upon the deed to his wife, and the scrivener thereupon obliterated that notation. A conflict appears in the testimony as to what was done with the deed to Emma Krause after it was executed. We quote from the testimony.

Upon direct examination the scrivener testified: " I put them all together, if I remember right there was five altogether. I put them all together and put a rubber band on them and handed them to Mr. Krause. * * * He said, 'Here, Mother', he says, 'You take care of them.' And he handed them to Mrs. Krause. That is the last I knew of them. * * * I wouldn't exactly state. I believe she went to the safe with them." The instruments thus described included the deed to Emma Krause. On cross-examination, however, this same witness in speaking of the deed to Emma Krause said, " He said, 'Here Mother, that is yours.' He delivered it right there."

It was stipulated that Hattie Krause would testify that she was present at the time of the execution of the above-described instruments, " and that following the final execution of the instrument by the Justice of the Peace, Mr. Karasek put a rubber band around the instruments, including the deed, Exhibit 'D', and handed them to Ernest Krause, who in turn, handed the entire bundle of instruments to Emma Krause, the defendant in this case, with the words, 'Here are the deeds, you may put them in the safe.' That at the time the bundle of papers were so handed to her she laid them on the table in the same room, and that during the same evening and before they retired, however, the deceased person did specifically refer to the deed, * * * and handed it to the defendant Emma Krause, with the words in substance, stating, 'Here is your deed." '

The County Judge testified that after the death of Ernest Krause which occurred on June 19, 1936, Emma Krause, the defendant in company with Mary Kenobbie, the plaintiff, and her husband and Hattie Krause, came to his office. Of what occurred while they were there, the County Judge had this to say: " And then it was Hattie asked me if I couldn't tell them something in a general way about the law. And I said, 'Well, I probably can.' And I asked them then what the nature of the property was and how it had been handled and what the situation is. And she told me that Mr. Krause, sometime in his lifetime, had executed deeds to--naming who the persons were. And I asked them, 'When were the deeds discovered or when did you know of these deeds?' Well, sometime after the death of Mr. Krause. And I says before--I says to them, 'Before his death were these deeds delivered to them?' And they replied, 'No.' 'And when did you first know of the deeds?' And they told me, shortly after the death. I said, 'Where did you find them?' 'Found them in the safe.' was the reply in reference to Ernest Krause. 'Well, of course,' I said to them, 'The general proposition of law is this is a gift in anticipation of death, and there must be a delivery.' I indicated how, taking three pieces of paper that were lying...