Losee v. Jones
| Decision Date | 23 August 1951 |
| Docket Number | No. 7507,7507 |
| Citation | 235 P.2d 132,120 Utah 385 |
| Parties | LOSEE et ux. v. JONES et ux. |
| Court | Utah Supreme Court |
H. Maurice Harding, Christenson & Christenson, Provo, for appellant.
Elias Hansen, Salt Lake City, for respondent.
This is an action to quiet title to certain lands brought by Dean Losee and his wife against David H. Jones and wife. The Jones defended and filed a counterclaim seeking to quiet title in themselves.
The Losees, plaintiffs and appellants herein, purchased a tract of land comprising 4.40 acres from Margaret Jones Ludlow. The land was part of a larger trace of pasture land which was within a single enclosure. David H. Jones, the brother of Margaret Jones Ludlow, claimed the larger tract, including the 4.40 acres, and used it both prior to, and at the time of the purchase by Losee from Mrs. Ludlow, and has continued to use it at all times since the purchase except that prior to the sale of the land to Losee the Ludlows did pasture horses on the land for a few weeks each year.
All parties rely upon the prior title of Alice Ann Jones, the mother of David H. Jones and Margaret Jones Ludlow, and the claims here involved all stem from her ownership, therefore the history of the property need not be traced beyond her.
Alice Ann Jones was a widow, and had rather extensive land holdings, of which the disputed lands form only a small part. In 1928, she made out deeds to each of her 11 children, by which means she divided up the greater part of her estate. The land, including that in controversy, was platted and then divided on the plats and each tract assigned a number. The sons and daughters then drew lots by drawing a number, to determine what his or her property would be, and a deed was made out to each according to the number drawn. The deeds were not delivered to the sons and daughters, however, but were placed in a safe deposit box in a bank by the mother. This box was one held by the mother and one of her daughters jointly. Thereafter, as for some time before, the sons rented the property, or parts of it, from the mother, paying her a rental for it. There is evidence that for the two years prior to her death, she rented the large tract, the ownership of a part of which is in dispute, to Lyman Losee, who owned contiguous property.
In July of 1930, Mrs. Jones, who was then 80 years of age, became ill and was taken to the home of one of her daughters. During this illness, she had two of her daughters go to the bank and get the deeds for her. She made certain corrections on one deed, and executed one further deed, it being a deed to her home, running in favor of her five daughers. After this, she handed all the deeds to one of her daughters, Nellie Jones Sudmeire Graham, and instructed her to deliver them, after her death, to the named grantees. The daughter then placed the deeds in a bureau drawer in the same room where her mother lay ill. There they remained until the death of the mother in September, 1930. Thereafter, Nellie delivered the deeds as instructed.
As to the general tract in dispute, the children David, George, Edward, Elenora, Ruth and Margaret were given deeds dividing up this tract, but apparently not all of it is covered by the deeds, and some overlapping and discrepancies appear in the deeds as given. The descriptions necessary to this decision are hereafter set out. A part of the property deeded to Margaret, the plaintiffs' grantor, was described as follows: The deed to Elenora among other property included the following:
The north boundary of the tract granted to Elenora overlaps approximately one chain beyond the south boundary of the tract granted to Margaret, and both descriptions overlap on to property owned by Lyman Losee who is not a party to this suit. In addition to these discrepancies, the description of the property conveyed to Elenora, if followed strictly, fails to close, and it also extends to the east on to other property not owned by Alice Ann Jones.
David Jones was given a deed to the following described property: This placed his land considerably to the south of that deeded to Margaret. However, the David Jones' deed was subsequently rerecorded with an interlienation to make the deed read: (Italics added.)
The deed as re-recorded still does not conflict with the Margaret Jones Ludlow deed, but to the contrary the north boundary of the Margaret Jones Ludlow property and the south boundary of the David Jones property as thus described, coincide. David Jones, however, purchased Elenora's property and also that of his brothers, George and Edward, and his sister, Ruth. Under the deeds as they exist, the only conflict between property descriptions as claimed by Dean Losee through Margaret and that claimed by David Jones, consist of the area of overlap between Margaret's south boundary and the north boundary of Elenora's property now owned by David, and this only in that area toward the east of the property where those descriptions do not overlap the Lyman Losee property. David Jones asserts that at the time the various divisions of the land were staked out preparatory to the drawing of lots by the children, it was intended that his property was to include that deeded to Margaret, and that his south property line should have been contiguous with Lyman Losee's north boundary. A rough diagram is here inserted to illustrate the overlaps and conflicting descriptions:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The trial court found from the evidence that there had been no delivery of the deeds from Alice Ann Jones to her children and that consequently the deeds were void. The court also concluded that the deed to David Jones was void for the further reason that it had been altered. No question is raised as to that latter ruling. The court accordingly decreed that neither the plaintiffs nor defendants are the owners of the property in question, but that it belongs to the estate of Alice Ann Jones, except as to that portion belonging to Lyman Losee which was encroached upon by the descriptions contained in the deeds from Alice Ann Jones to Margaret and Elenora as previously indicated.
The plaintiff has appealed from the judgment of the lower court and has set out numerous points relied upon for reversal which are argued under three headings. The first and foremost point relied upon by plaintiffs is that the trial court erred in ruling that there was no delivery of the deeds from Alice Ann Jones to her children.
All of the evidence covering the issue of delivery comes from the daughter Nellie to whom the mother entrusted the deeds and their delivery to the other children. Her testimony in substance was that she received the deeds from her mother several weeks prior to the mother's death; that the mother did not want an estate lift to be probated and instructed her to deliver the deeds to the named grantees after her death; and that she placed the deeds in a bureau drawer within a step or two of the bed where the mother lay ill. Apparently she acted on her own volition and initative in so doing. She did state, however, that the mother could have removed the deeds from the bureau drawer had she wanted to; that if the mother had demanded them she would have turned the deeds over to her; and that she didn't think she could remove the deeds prior to the mother's death because she didn't think her mother would have allowed it. Her conclusion was that there was an unqualified delivery to her for the purpose indicated, and she testified that the deeds were never touched by any one from the time she placed them in the drawer, until she removed them, after her mother's death.
Are these facts sufficient to constitute a delivery? In the case of Singleton v. Kelly, 61 Utah 277, 212 P. 63, this court approved the applicable principles which have almost universal acceptance: That where a grantor executes a deed and places it in the hands of a third party for delivery after the death of the grantor, with the intent that the deed and its delivery are absolute, that the title in fact passes and the third party then holds the deed as trustee for the grantee. The court also recognized that if the delivery is conditional, as where the grantor intends to retain control over the property and the right to revoke the deed, then such a deed does not pass title. In Reed v. Knudson, 80 Utah 428, 15 P.2d 347, an assignment of one-half interest in...
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