King v. Antrim Lumber Co.

• Court: Oklahoma Supreme Court
• Writing for the Court: COLLIER, C.
• Citation: King v. Antrim Lumber Co., 172 P. 958, 70 Okla. 52, 1917 OK 589 (Okla. 1917)
• Decision Date: 11 December 1917
• Docket Number: 8274.
• Parties: KING v. ANTRIM LUMBER CO. et al.

172 P. 958

70 Okla. 52, 1917 OK 589

KING v. ANTRIM LUMBER CO. et al.

No. 8274.

Supreme Court of Oklahoma

December 11, 1917

Rehearing Denied May 21, 1918.

Syllabus by the Court.

Where a deed is made without consideration to an infant of tender years not of kin to the grantor, and placed by the grantor upon record, and after the deed is recorded it is returned to the grantor and never delivered to the grantee or any one for her, and the intention of the grantor in making the deed was not to pass title to the grantee, but to place the property where it could not be reached for a legal liability of the grantor, and the possession of the property continuously remained in the grantor, there was not such a delivery of the deed as necessary to convey title thereby to the grantee, and such infant is not entitled to recover such property of such grantor.

Where a deed is executed and placed on record by a grantor for the purpose alone of placing the property beyond the reach of his creditors, and such deed is not delivered by the grantor to the grantee or any one for her, but is surreptitiously taken by and is in her possession, and the grantor brings action praying for the removal of the cloud created by such deed upon such property, and for the cancellation of the deed and record thereof, equity will deny such relief for the reason that the grantor does not come into court "with clean hands," and therefore "equity leaves him where it finds him."

Commissioners' Opinion, Division No. 1. Error from District Court, Washita County; Thomas A. Edwards, Judge.

Action by the Antrim Lumber Company to foreclose a mechanic's lien against W. B. King and Minnie Zschornack, in which Minnie Zschornack was permitted to interplead, with answer and cross-petition by W. B. King to the petition of intervention, and in which the Antrim Lumber Company by demurrer to the evidence was eliminated from the case. Judgment for intervener quieting her title against defendant King, his motion for a new trial overruled, and he brings error. Reversed and remanded, with instructions to dismiss the intervention and the cross-action.

A. M Beets, of Cordell, for plaintiff in error.

Richard A. Billups, of Cordell, for defendants in error.

COLLIER C.

This action was brought by the Antrim Lumber Company to foreclose a mechanic's lien on lots described in the petition against the defendant W. B. King and Minnie Zschornack alleging that the title to said property was in Minnie Zschornack, but that transfer from the defendant King to Minnie Zschornack was void as being without consideration. Thereafter R. Brett, as amicus curiae, filed motion to make Minnie Zschornack a party to the cause. Minnie Zschornack was permitted to interplead and set up her rights in said cause the important part of said interplea being as follows:

"(3) Your interpleader further states to the court: That she is and has been the owner in fee of the real property set out in plaintiff's petition, to wit: Lots twenty-one (21), twenty-two (22), and twenty-three (23), in block fifty-eight (58), in the town of New Cordell, Okl., and lots seventeen (17) and eighteen (18), in block fifteen (15), East Hill addition to New Cordell, Okl., since the 19th day of April, 1906. That on said day and date W. B. King, then a single man, conveyed said real property and all of the same to this interpleader by good and sufficient warranty deed, which deed is now held by this interpleader, and is on record in the office of the register of deeds of Washita county, Okl.; same having been filed for record the 19th day of April, 1906, at 8:10 o'clock a. m. of said date, and recorded in volume 14, page 233, of the records of said office; a copy of said deed is filed herewith, as a part hereof, marked Exhibit A. That the said W. B. King has no right, title, or interest in said property, nor any part thereof. That no other person or persons have any right, title, or interest in and to said property or any part thereof, except your interpleader herein, who is the legal holder and owner of all of said real property.

(4) Your interpleader further states that the register of deeds, in copying and recording said deed to said property, incorrectly copied the name of the grantee in said deed, the name of said grantee appearing of record as Minnie S. Schormack, instead of Minnie Zschornack, which is the real and true name which appears in the original deed presented for record; that your interpleader did not know of said mistake in the recorder's office until her attention was called to same upon the filing of this suit, but presumed that said register of deeds had correctly recorded the deed presented for record as was his duty to do.

(5) Your interpleader specifically denies that the plaintiff herein has any interest in or lien upon the above-described property of your interpleader, by reason of the pretended lien statement filed herein, but states, as aforesaid: That this interpleader was at that time, and has been ever since, and is now, a minor under the age of 21 years, and of the age of 16 years at this time, and owes the plaintiff nothing.

(6) That said pretended lien statement is a cloud upon the title of this interpleader, and said cloud should be removed.

Wherefore, your interpleader prays that the plaintiff take nothing of her by reason of said lien; that said lien statement be declared void as a lien against the property of this interpleader, and that the cloud on the title created by reason of said lien statement be removed, and that the record in the office of the register of deeds be corrected and made to show the real name of the grantee in said deed as shown by the original deed to said property, and that she go hence with her costs in this behalf expended, and for other proper relief."

W. B. King filed his answer and cross-action to the petition of intervention filed by the interpleader, Minnie Zschornack; the material averments of said amended answer and cross-action being as follows:

First. That he denies each and every material allegation contained in said interplea.

Second. For his second and further answer to said interplea, the said defendant alleges and states that he is the owner in fee simple of lots 21, 22, and 23, in block 58, in the city of New Cordell, Okl., and lots 17 and 18, in block 15, East Hill addition to the city of New Cordell, Okl., all in Washita county, as described in said plea of intervention. That said intervener has no right, title, or interest in said premises, but alleges the fact to be that on the 19th day of April, 1906, the said defendant W. B. King executed a deed to said property to Minnie Zschornack, but that said deed was executed without consideration and was not delivered to the said Minnie Zschornack or said interpleader or any other person for her benefit, and that the title to said premises was not intended to pass and did not pass from said defendant. That said defendant was at said time, and has been at all times since, in possession of said premises, and has paid the taxes and made valuable improvements thereon. Defendant further states that the deed so made at said time and placed on record is a cloud upon defendant's title, and that unless the same is canceled, set aside, and held for naught said defendant will be unable to dispose of said property. Defendant further says that, if the intervener herein has possession of said deed as alleged in said petition of intervention, the same was surreptitiously and fraudulently obtained without the consent of the said defendant.

Third. Defendant further states that, in the event that the court should hold that the deed herein involved was delivered to the interpleader as a matter of law, then said defendant alleges the facts to be that said interpleader holds the legal title to said described property in trust for the use and benefit of this defendant W. B. King. That the said W. B. King is the owner of the equitable title thereto, and that said interpleader has no right whatever in the equitable title to said property.

Wherefore said defendant prays that the deed heretofore executed by the said W. B. King to the said Minnie Zschornack be set aside, canceled, and held for naught, and his title quieted against the said Minnie Zschornack; or that the court declare the said Minnie Zschornack to hold the title in trust for the said defendant W. B. King, and for such other and further relief as the court may deem the defendant entitled to in law and equity.

To said amended answer and cross-action the interpleader, Minnie Zschornack, filed a general denial. The Antrim Lumber Company, by demurrer to its evidence, was eliminated from the case, and the trial of the case proceeded upon the issue joined between the interpleader, Minnie Zschornack, and W. B. King.

The material evidence is that W. B. King was a single man and owned the property in litigation; that the mother of Minnie Zschornack was keeping house for him; that Minnie was then a little girl about six years old; and that King got into some difficulty regarding a suit which he had against some parties, and fearing the result of the litigation executed a deed to the little girl, and placed the deed on record; that after the deed was recorded it was returned to King and remained in his possession for several years, and never was delivered to the interpleader; that King married the interpleader's mother and the interpleader lived with King and his wife; that thereafter trouble arose between the parties, and the interpleader took the deed from King's possession without his knowledge and left home; that King continued to remain in possession of the property, paid the taxes thereon, and received the rents; that he made improvements from time to time, which he paid...