Lancaster v. May

• Decision Date: 23 April 1952
• Citation: 243 P.2d 268,194 Or. 647
• Parties: LANCASTER v. MAY.
• Court: Oregon Supreme Court

Page 268

243 P.2d 268

194 Or. 647

LANCASTER v. MAY.

Supreme Court of Oregon.

Argued and Submitted April 9, 1952.

Decided April 23, 1952.

Ross Farnham, of Bend, argued the cause and filed a brief for appellant.

George H. Brewster, of Redmond, argued the cause for respondent. On the brief were Cunning & Brewster, and George Rakestraw, all of Redmond.

Before BRAND, C. J., and HAY, LUSK, WARNER and TOOZE, JJ.

TOOZE, Justice.

This suit was instituted by the filing of a complaint in the circuit court for Deschutes county, wherein Agnes Pearl Lancaster is named as plaintiff, and Charles Marsch, as defendant. By her complaint plaintiff prayed a decree as follows; to-wit: requiring defendant Charles Marsch to deliver up and surrender to plaintiff a deed of conveyance dated October 6, 1947, wherein plaintiff was grantor and one Lewis M. Lancaster was grantee; or in the event that said deed not be delivered up to plaintiff, that the court order the same to be cancelled and to be declared null and void.

Defendant Marsch answered the complaint, admitting possession of the deed in question. He alleged that not only plaintiff had demanded possession of said deed, but also the children and heirs at law of Lewis M. Lancaster, deceased, and Earle May, as administrator of the estate of Lewis M. Lancaster, deceased. Defendant further alleged that he had refused to deliver the deed to either of the parties making such demand, advising them that he did not know nor wish to decide who was entitled to have said deed, and that said deed would be delivered only in response to an order of the court. He tendered the deed into court with his answer, along with another deed to be hereafter mentioned, with a request that the court decide to whom the instruments belonged. He prayed a decree that the suit be dismissed as to him, and that plaintiff be required to plead Earle May, the administrator of the estate of Lewis M. Lancaster, deceased, as a defendant herein.

Earle May, as such administrator, was joined as a defendant and filed an answer to the complaint, admitting and denying certain allegations thereof and affirmatively pleading facts which he maintained entitled him to possession of said deeds as the administrator of said estate. Plaintiff filed her reply denying the affirmative allegations of May's answer and, for a further and separate reply, alleged a certain state of facts which she claimed entitled her to the relief prayed for in her complaint.

The trial court found the issues in favor of plaintiff and entered a decree directing the clerk of the court to deliver said deed to plaintiff and decreeing the same to be null and void and of no force and effect. Defendant Earle May, as administrator, appeals.

This litigation arises out of the following facts: Prior to October, 1947, Lewis M. Lancaster was the owner of the north half of block numbered one hundred (100), first addition to Bend Park, in the city of Bend, Deschutes county, Oregon, valued at $12,500. Lancaster had been married and had two daughters, the issue of such marriage. In a bitterly contested suit a divorce had been obtained dissolving the marriage, in which suit the daughters had taken the part of their mother. Much bitterness obtained between Lancaster and his daughters; and to his attorney Charles Marsch, he made the statement that he did not want them to ever receive any part of his property. Lancaster had become acquainted with plaintiff, and after his divorce they contemplated marriage with each other. The two parties had some discussion about the above described real property during the month of September, 1947. At that time Lancaster was living in the home of plaintiff's married daughter. Plaintiff had been placed in possession of the real property mentioned and was conducting dancing classes in the dwelling located thereon.

According to plaintiff, in September, 1947, Lancaster expressed a desire that she should have the real property described and agreed to deed it to her in consideration of their impending marriage. It was also agreed that she should execute a deed to the property back to Lancaster, this deed to be delivered on condition only if the marriage was not consummated or if she should predecease Lancaster; it being agreed, however, that after consummation of the marriage, a new deed would be given by plaintiff, creating a tenancy by the entirety, so that the survivor would take the whole of said premises.

Lancaster directed his attorney Charles Marsch to prepare two quit claim deeds describing the property, the first naming Lewis M. Lancaster as grantor and plaintiff as grantee, and the other naming plaintiff as grantor and Lancaster as grantee. The deeds were so prepared and on October 6, 1947, were executed by the respective parties. Marsch was directed by Lancaster to place U. S. Revenue stamps upon the deed conveying the premises to plaintiff and to have the same duly recorded. The stated consideration in the deed was $10, but Marsch caused to be attached thereto and cancelled U. S. Revenue stamps in the total sum of $13.20. This deed was duly recorded on October 6, 1947.

According to Marsch, no instructions whatever were given him respecting the deed from plaintiff to Lancaster, that being the deed principally involved in this litigation. This deed was left in his possession, and, after the other deed had been recorded, he took possession of it and kept both deeds in the Lewis M. Lancaster file in his office. Marsch was not only Lancaster's attorney, but they had been close friends for several years. Plaintiff testified that, with respect to the deed transactions, Marsch was also her attorney.

Plaintiff and Lancaster were duly married on January 2, 1948. Thereafter, upon several occasions, according to plaintiff and Marsch, there was talk about the execution of a further deed. As to this, Marsch testified:

'Q. Do you recall having any discussion or any mention made to either one or both of the parties after the marriage about these deeds? A. Yes, I am sure of that fact. I have a distinct recollection that the deeds were mentioned to Mr. Lancaster after that marriage, and maybe several times, and possibly it may have been mentioned in the presence of Mrs. Lancaster--I just don't know now.

'Q. Was there anything said then as to what further there was to be done about the deeds? A. The exchange or execution of the deeds was accepted in my mind as a temporary expedient until the marriage was consummated, and after the marriage had been consummated--the marriage first--and then there was something further to be done. It was my impression that they wanted another deed to create an estate by entirety.'

As to this matter, plaintiff testified:

'Q. * * * Did Mr. Lancaster and you ever have any conversations with Mr. Marsch after that, both of you together? A. Yes, sir.

'Q. Where? A. Oh, we would meet him on the street.

'Q. What was the conversation? A. Well, the mention would be made of this other deed and Mr. Marsch would remind Mr. Lancaster that we should have it attended to, maybe next week.

'Q. What was that deed that had to be attended to? A. That was our joint deed.

'Q. What do you mean by that? A. Well, after our marriage, we were going to have a joint deed made in both of our names.

'Q. You mean a deed where the property stood in both your names as husband and wife? A. That is right.

'Q. Did you have any agreement as to that? A. Yes, sir.

'Q. Who with? A. Between ourselves and Mr. Marsch.

'Q. That is what I want to know--did you make another agreement and who with? A. With Mr. Lancaster.

'Q. Was that agreement between you and Mr. Lancaster? A. Yes, sir.'

Lancaster died in July, 1948, without any further deed having been executed so as to create a tenancy by the entirety as agreed upon.

It is a well-established rule of law that delivery is an indispensable requisite to the validity of a deed. To pass title, the grantor must give up dominion and control of the deed. The delivery must be made by the consent or with the acquiescence of the grantor. To be...