Larison v. Taylor

• Decision Date: 19 March 1928
• Docket Number: 12014.
• Citation: 266 P. 217,83 Colo. 430
• Parties: LARISON v. TAYLOR.
• Court: Colorado Supreme Court

266 P. 217

83 Colo. 430

LARISON v. TAYLOR.

No. 12014.

Supreme Court of Colorado, En Banc.

March 19, 1928

Rehearing Denied April 9, 1928.

Error to District Court, Boulder County; Claude C. Coffin, Judge.

Action by Hannah C. Larison against Anna B. Taylor. Judgment for defendant, and plaintiff brings error.

Reversed and remanded for new trial.

Rinn & Connell, of Boulder, B. F. Reed and Horace N. Hawkins, Jr., both of Denver (E. W. Christensen, of Boulder, of counsel), for plaintiff in error.

George A. Marvin, Goss & Hutchinson and Charles D. Bromley, all of Boulder, for defendant in error.

CAMPBELL J.

This action by Hannah C. Larison, widow, 74 years of age, is against her married daughter, Anna B. Taylor, and its object is to have canceled and discharged of record a warranty deed of real estate to Mrs. Taylor as grantee which the plaintiff executed but did not deliver, and which, as she says, was intended solely as in the nature of a testamentary disposition to take effect, unless previously revoked, only at the time of grantor's death. The answer contains a general denial and an affirmative defense that the deed in question is a warranty deed and was intended to be and was, an absolute deed conveying full title to the defendant and was delivered by the plaintiff grantor to the defendant grantee and thereafter recorded. The same matter is pleaded as a counterclaim in the answer and denied in the replication, wherein the defendant asks that title to the premises be quieted in her. On trial to the court without a jury, findings were against the plaintiff on the issues tendered by the complaint and the answer, and in favor of the defendant, and upon defendant's counterclaim the findings were for defendant and title in her was quieted accordingly.

The evidence exhibits a lamentable family controversy which courts are sometimes compelled to settle. The general rule with us, as in appellate courts generally, is that findings of fact by the trial court or jury are conclusive upon reviewing courts in the absence of what, in the record itself, clearly and affirmatively shows that the case as made comes within some recognized exception to the general rule. A careful and prolonged study of this record convinces us that partly through a misconception by the trial court as to the burden of proof, to the indefinite and unsatisfactory character of the testimony of the witnesses for the defendant, to which the trial court attributed undue weight and importance, to the conduct and behavior of the defendant and her husband during the course of the trial and after the case was taken under advisement by the trial court considered in connection with material and newly discovered evidence that probably would, and should, require different findings and a decree for failure to discover which before the trial plaintiff is not to be penalized, and because of our profound conviction that the trial court incorrectly attached undue probative effect to the testimony of the defendant's several witness concerning the alleged delivery of the deed as an intended conveyance of present title, we are compelled to set aside its findings and decree and remand the cause for a new trial.

It is within their recognized province, and courts have not infrequently, and properly, set aside findings and judgments or decrees, to which a series of questionable and improper rulings or actions or conduct of the trial court or jury have contributed, no one of which probably would of itself, disassociated from the others, authorize or justify a reversal, but which combined, in justice and equity, entitle the aggrieved party to a new trial.

1. It is apparent from the record that, because of her age and physical disability, plaintiff's mental faculty was somewhat impaired and her memory, though not as to the main issue, but as to collateral matters, may be at times not strictly accurate. In all material respects her story is plausible, natural, and it accords with human experience. About April 8, 1919, the plaintiff was the owner of three lots in the city of Boulder on which was a dwelling house in which she lived as her permanent home. She had been married twice and at the time of the trial had at least two children, one of whom, the defendant, Mrs. Taylor, was a child of her second marriage. Both of her husbands were dead. She had one son, but whether he was of the first or second marriage does not appear. She was a working woman, doing domestic service in homes and work in offices by the day or hour as she could secure employment. She had a savings account at the bank and had accumulated as the result of her labors, and possibly from one or both of her husbands, and possessed at one time several thousand dollars in money, but at the time of the trial she had only about $300 in money in a savings account and the home place that she owned and in which she lived, and it was practically her only property, and it came to her from her first husband, not from the the defendant's father. It was her purpose and intention, however, that her daughter, Mrs. Taylor, at her death should receive this home place, but she desired to retain ownership and possession thereof during her lifetime. Because of her inexperience in such matters, not being able to determine for herself the way to carry out her desire, the mother took steps to accomplish the purpose she had in mind by consulting her attorney, who, after ascertaining her intention, at first suggested making of a will, but because of the costs and expenditures that would be incurred in the probate, which she wished to avoid, the attorney then explained to her that by making a deed of conveyance of her home to her daughter as grantee, and retaining possession of the deed until about the time that she was satisfied she was about to die and then delivering it to her daughter, the purpose she had in view could be accomplished at less expense, and that at any time she saw fit, during her lifetime, to change her mind, she could destroy the deed or make other disposition of the property at her pleasure. Acting upon his advice she requested her attorney to prepare such a deed, which he did, on April 11, 1919, the instrument being a warranty deed in form, and she duly acknowledged the same, and, after acknowledging it, she kept it in her possession in the drawer of a bureau or sideboard of her home when it was not in a safety deposit box in a Boulder bank. There was no money consideration from the grantee, Mrs. Taylor, to the plaintiff as grantor for this conveyance. The plaintiff has never spoken to her daughter about it and the latter admits that she never knew of her mother's purpose, or that any deed had been executed to her as grantee until December, 1922, about Christmas time, more than three years after the date it was signed and acknowledged. Both the plaintiff and her attorney, Mr. McHarg, testified positively and explicitly that it was the fixed purpose and intention of the plaintiff to retain title, possession, and control of her home place and of this deed until about the time when she felt that she was about to pass on, and at such time, unless she desired to, and did, cancel and destroy the deed prior to such event, to deliver it to her daughter, the defendant, Mrs. Taylor.

The plaintiff testifies positively that she never delivered this deed to her daughter or authorized its delivery and that, though the daughter afterwards obtained possession of the deed and had it placed upon the record, it was without her knowledge or consent and contrary to her fixed intention and purpose. Plaintiff further testifies that at all times the daughter had free access to her home and knew where she kept her valuable papers, such as deeds and abstracts and other documents, and that such possession as the defendant acquired of this deed was wrongful and without her authority or consent, and must have been obtained as the result of her own wrongful purpose and design to obtain possession of this property before her mother's death. To sum up the testimony in behalf of the plaintiff shows a fixed intention and purpose on her part not to make a delivery of this deed to her daughter grantee, but to retain possession and ownership of the home so long as she lived, and at her death, by making delivery as above stated, to vest title of the property and not before. After this deed was executed the plaintiff remained in possession of her home, paid the taxes and insurance upon it until the year 1927, and controlled it as her own, and all of her acts and doings with reference to the home were consistent with her entire ownership of it. Repairs were made from time to time upon the dwelling house; plaintiff rented rooms therein to lodgers. Plaintiff further testifies that she told a number of people at different times that she had made a deed of her property to her daughter, but that title was not to vest until her death, she retaining ownership and possession thereof so long as she lived.

The defendant's case may thus be summarized: She testifies that she first moved into the home place to which she asserts title, under the deed above referred to, about the 1st of March, 1924, and has occupied it ever since up to the time of the trial; she says her mother gave her this deed about Christmas Day of 1922. 'I was in the kitchen of the home where I now live at the time and my husband was present at the time the deed was handed to me by my mother.' She says that her mother, addressing her by name, handed to her an envelope inclosing the deed in question and said that the daughter was to do with it as she pleased and that it was her present to the latter and part of her estate. The night before her husband told her that the plaintiff had requested him to...