Lamb v. Brammer

• Decision Date: 28 December 1916
• Citation: 29 Idaho 770,162 P. 246
• Parties: ALETHA G. LAMB, Respondent, v. E. H. BRAMMER, Appellant
• Court: Idaho Supreme Court

162 P. 246

29 Idaho 770

ALETHA G. LAMB, Respondent, v. E. H. BRAMMER, Appellant

Supreme Court of Idaho

December 28, 1916

COMMUNITY PROPERTY-AGREEMENT AS TO DIVISION OF-DIVORCE-DECREE-CONFIRMATION OF TITLE IN MINOR.

1. Where husband and wife own community property, and the husband brings an action for divorce and an agreement is made between the husband and wife as to the division of the community property, and in such agreement it is provided that the wife shall convey to their minor son a one-half interest in certain land, and in consideration thereof the husband shall pay her $2,000, and the court in its judgment and decree in the divorce case ratifies and confirms such agreement, the title to such land passes to the minor, and a deed executed pursuant to a subsequent agreement between the parties, whereby the former wife agrees to convey the interest in said land which had been confirmed in the minor by such decree to her former husband, conveys no title to the land.

2. Held, that the title to a one-half interest in said 240 acres of land was in the minor, and on his death his said mother was one of his heirs and entitled to a half interest in his share of said land or its proceeds.

APPEAL from the District Court of the Second Judicial District for Clearwater County. Hon. Edgar C. Steele, Judge.

Action for an accounting and for other relief. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

Clay McNamee, for Appellant.

The $ 1,500 remainder of the purchase price paid by Brammer to his former wife was not paid as a part consideration for the first deed executed by Mrs. Brammer and Mr. Brammer to their son, Earl Brammer, but was paid as a consideration for the execution of the deed made in the latter part of December 1911.

"A deed in escrow does not become a conveyance until the condition is performed upon which it is to take effect." (Haskell v. Doty, 78 Cal. 424, 21 P. 10; Heney v. Pesoli, 109 Cal. 53, 41 P. 819; Gaston v Portland, 16 Ore. 255, 19 P. 127; Daggett v Daggett, 143 Mass. 516, 10 N.E. 311; Schmidt v. Deegan, 69 Wis. 300, 34 N.W. 83; Calhoun County v. American Emigrant Co., 93 U.S. 124, 23 L.Ed. 826.)

"A deed cannot be delivered in escrow to the grantee." (Darling v. Butler, 45 F. 332, 10 L. R. A. 469; 1 Devlin on Real Estate Deeds, p. 577, sec. 323.)

Miles S. Johnson, for Respondent.

"The final judgment granting a divorce and awarding alimony and disposing of the property of the parties is a bar to a subsequent action by either party to determine any of the property rights which might have been settled in such action." (14 Cyc. 794.)

The grantor cannot recall the deed after the delivery as an escrow; and, when the condition is complied with by the grantee, he is absolutely entitled to it. (Cannon v. Handley, 72 Cal. 133, 13 P. 315.)

Where the deed conveys a beneficial interest, the infant will be presumed to have accepted it. In case of an infant, this presumption is conclusive. (Bjmerland v. Eley, 15 Wash. 101, 45 P. 730.)

"Title to land cannot be divested by surrender and cancelation of grantee's deed." (Watters v. Wagley, 53 Ark. 509, 22 Am. St. 232, 14 S.W. 774; Brown v. Westerfield, 47 Neb. 399, 53 Am. St. 532, 66 N.W. 439; Lawton v. Gordon, 34 Cal. 36, 38, 91 Am. Dec. 670.)

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought for an accounting involving the dealings and transactions in reference to the property of one Earl Brammer, deceased, and for a decree confirming in the plaintiff a title to an undivided one-fourth interest in and to certain lots in the town of Orofino, Clearwater county.

On a trial of the issues made by the pleadings, judgment was entered in favor of the plaintiff for $ 2,437.50. A motion for a new trial was denied and this appeal is from judgment and order denying a new trial.

It appears from the record that the respondent, Aletha G. Lamb, and the appellant, E. H. Brammer, were husband and wife, and on December 10, 1910, appellant, who is the defendant in this action, brought suit against the plaintiff, who was then his wife, for a divorce and settlement of their property rights.

Prior to the trial of the divorce action, and on May 10, 1911, the parties entered into an agreement for the settlement of their property rights and among other provisions contained in said agreement were the following:

"The said E. H. Brammer contracts and agrees to pay the said sum of $ 2,000 in the following manner, to wit: $ 500.00 to be paid at Spokane, Washington, on or before June 1st, 1911, and the balance of $ 1,500.00, together with interest at the rate of 8 per cent per annum from this date, represented by two promissory notes, one for $ 1,000 and interest, payable on or before November 1st, 1912, and one for $ 500 and interest, payable on or before November 1st, 1913.

"It is agreed between the parties that upon the receipt of said first payment of $ 500, that Aletha Brammer shall execute a good and sufficient warranty deed to her interest in said farm land in favor of Earl Brammer, said deed to contain a stipulation to the effect that said Earl Brammer shall not encumber or dispose of said land until he attains the age of twenty-one years; and the said deed shall be deposited in escrow by said Aletha Brammer in the Washington Trust Company of Spokane, Washington, under an escrow agreement whereby said trust company shall deliver said deed to the said Earl Brammer upon the payment of the said sum of $ 1,500.00 and interest by E. H. Brammer as hereinbefore provided, and that in addition to said deed there shall be deposited with the said bank a release releasing and discharging the said land and the said E. H. Brammer from any and all lien and claim of the said Aletha Brammer.

"It is agreed that a copy of this agreement be filed in said divorce action and that said agreement shall be confirmed and embodied in any decree of divorce entered in this action in favor of either party, and that by any such decree of divorce, the defendant Aletha Brammer shall be given a lien upon said farm lands to secure the payment to her of the said sum of $ 1,500.00 and interest, as represented by said notes."

It will be observed from that agreement that the defendant in said action agreed to receive the sum of $ 2,000 in full payment for all of her interest in the lands mentioned in said contract, and release and discharge her said husband from all claims and for alimony, support, attorneys' fees and all other claims existing by reason of the marriage relations between them. She further agreed that all of said minor children, in the event a decree of divorce be granted in said action, should be awarded to the appellant.

Pursuant to the terms of said...