McCaw v. Hartman
| Decision Date | 03 February 1942 |
| Docket Number | 30449. |
| Citation | 122 P.2d 999,190 Okla. 264,1942 OK 50 |
| Parties | McCAW et al. v. HARTMAN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied March 10, 1942.
Syllabus by the Court.
1. An attorney is not an incompetent witness to testify concerning the preparation, execution and acknowledgment of a deed where he acts merely as a scrivener in preparing the deed and a notary public in taking the acknowledgment, and where it does not appear that the grantor considered the transaction confidential, and where the daughter of the grantor was present at the time of the execution and acknowledgment of the deed and heard what was said.
2. Where the owner of real estate executes a deed thereto and places it beyond recall in the hands of a third party, to be delivered to the grantee therein named upon the death of the grantor, the same constitutes a conveyance passing a present title to said real estate, with the right of possession postponed until the death of the grantor.
3. A grantor, who has deposited a deed with a third person, to be delivered to the grantee after the death of the grantor reserving no dominion or control over the deed, cannot subsequently, by any acts indicating a change of intention such as by leasing the land for oil and gas and devising the land, affect the title of the grantee.
4. An action by a grantee in a lost deed, delivered by the grantor to a third party with directions to deliver to the grantee after the death of grantor, to establish the deed and quiet title to the land, accrues and the statute of limitations begins to run at the time of the death of the grantor, where the title of the grantee is not questioned prior to the death of the grantor, and the loss of the deed is not discovered prior to grantor's death.
5. Record examined, and held, that the judgment appealed from is not clearly against the weight of the evidence.
Appeal from District Court, Kingfisher County; O. C. Wybrant, Judge.
Action by Philip E. Hartman against Fannie McCaw, as executrix of the last will of Sarah J. Dunn, deceased, and others, to establish a lost deed and quiet title to land conveyed. Judgment for plaintiff, and defendants appeal.
Affirmed.
V. D Firestone, of Kingfisher, for plaintiffs in error.
R. F Shutler, of Kingfisher, for defendant in error.
This is an action by the plaintiff Philip E. Hartman to establish a lost deed in his favor covering an undivided one-third interest in 160 acres of land in Kingfisher County and to quiet title to said land.
The material facts are these: Plaintiff is the son of Sarah J. Dunn, deceased, and the defendants are her heirs at law, devisees, and executrix of her last will and testament. The court found from the evidence that the deed was duly executed and acknowledged in Lincoln, Nebraska, on February 28, 1914; that it was, by Mrs.
Dunn and plaintiff, delivered in escrow on September 15, 1915, to the Peoples National Bank of Kingfisher with instructions signed by the grantor indorsed on the envelope in which the deed was contained: "This deed to be delivered to Philip E. Hartman upon my death;" that later the Peoples National Bank was merged with the Citizens National Bank of Kingfisher and the deed, after the death of Mrs. Dunn, could not be found in the bank; that Sarah J. Dunn died testate on September 26, 1939, and her will, which was executed in 1938, purporting to dispose of said property, was admitted to probate in Tillman County; that Hartman, from the time of execution of the deed until the death of his mother, was in possession of the land and paid her rent; that on February 25, 1930, she executed an oil and gas lease on said land. The court entered judgment for plaintiff, decreeing that the deed was duly executed, acknowledged and delivered, and that it vested title in Hartman, with possession postponed until the death of his mother. Defendants appeal.
1. It is argued that reversible error was committed in admitting the testimony of J. Reid Green, an attorney and notary public, who prepared the deed, witnessed its execution and took the acknowledgment thereto. He testified that he was an old friend of the family; that a few days before it was executed, a daughter of Mrs. Dunn asked him to prepare the deed, and gave him the data necessary for its preparation that the deed was taken by him to the daughter's home, where Mrs. Dunn was staying, and that it was there executed and acknowledged before him in the presence of the daughter, and that Mrs. Dunn explained the reason why she was making the deed to her son. He did not testify as to any advice asked of him by Mrs. Dunn or any given by him. Green was the only witness...
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