McConnell v. Dixon

• Decision Date: 26 June 1951
• Docket Number: No. 2486,2486
• Parties: McCONNELL et al. v. DIXON et al.
• Court: Wyoming Supreme Court

Page 877

233 P.2d 877

68 Wyo. 301

McCONNELL et al. v. DIXON et al.

No. 2486.

Supreme Court of Wyoming.

June 26, 1951.

Sullivan & Sullivan, J. R. Sullivan, Laramie, Brimmer & Brimmer, C. A. Brimmer, Jr., Rawlins, for appellants.

J. R. Armstrong, Eph U. Johnson, Rawlins, for respondents.

BLUME, Justice.

This is an action to reform a deed made by the Keystone Cattle Company as grantor to Alvy Dixon and Rosemary Dixon as grantees on or about April 29, 1941 for the South Half (S 1/2) of Section Four (4); all Sections Five (5) and Nine (9); all of Section Seventeen (17), except the Southeast Quarter of the Southeast Quarter (SE 1/4, SE 1/4); the Southeast Quarter of the Northeast Quarter (SE 1/4 NE 1/4); the South Half of the Southeast Quarter (S 1/2 SE 1/4) and the Northeast Quarter of the Southeast Quarter (NE 1/4 SE 1/4) of Section Eighteen (18) all in Township Nineteen (19), North, Range Seventy-eight (78), West of the Sixth Principal Meridian, located in Carbon County, Wyoming, these lands being known as the Murray Ranch. Judgment was in favor of the plaintiffs herein and against the defendants and the defendants have appealed.

The kernel of this case in brief is this: In the winter of 1940-1941 Alvy Dixon, through his son as agent, entered into a contract with the Keystone Cattle Company for the purchase of the Murray Ranch above mentioned for $27,000, one-half to be paid in cash and the other half to be secured by a mortgage. Thereafter and probably in May, 1941 the cattle company sent a warranty deed with Alvy Dixon as grantee, to its attorneys, McCullough and Corthell at Laramie, Wyoming, to be delivered upon payment of the cash and the execution of the mortgage to be signed by Dixon and his wife Rosemary Dixon. The latter refused to sign the mortgage unless her name was included as one of the grantees in the deed. G. R. McConnell acting as legal advisor for Alvy Dixon, in order to complete the transaction, finally inserted her name in the deed, adding to Alvy Dixon who was the grantee, the words 'and Rosemary Dixon, husband and wife' thereby creating an estate by the entirety. The controversy in this case rages round the validity of this insertion. Alvy Dixon, then 78 years of age, during this time and from April 12, 1941 to the early part of July was seriously sick in a hospital at Laramie, Wyoming with a heart ailment.

This action was in the first place commenced on April 26, 1944, by Lloyd E. Dixon as the guardian of the person of Alvy Dixon, against Rosemary Dixon and Bryan White as defendants, in which plaintiff claimed that the warranty deed above mentioned by reformed by striking therefrom the name of the defendant Rosemary Dixon and that she be restrained from asserting any claims or ownership in and to the real estate mentioned in the deed and that the defendant Bryan White be required to set up whatever claims he had in and to the property. Alvy Dixon died on November 27, 1944. G. R. McConnell was duly appointed as executor of his estate, and by order of the court he and the four children of the deceased, to-wit: Lloyd E. Dixon, Edith A. Brokaw, Charlotte P. Rosenlieb and Margaret A. LaBeau, legatees and devisees under the will of Alvy Dixon, deceased, were substituted as plaintiffs and on April 4, 1946 the plaintiffs filed a second amended petition against Rosemary Dixon alleging by paragraphs 1 to 4 that: Alvy Dixon died testate on November 27, 1944 leaving real and personal property in Carbon and Albany Counties, Wyoming, including the real estate in controversy; that the will of the deceased dated February 10, 1936 was duly admitted to probate on January 15, 1945 and G. R. McConnell was appointed as the executor thereof, and that he duly qualified as such on January 15, 1945; that the four children above mentioned together with Rosemary Dixon were the sole legatees and devisees under the will aforesaid; that on June 21, 1944, however, Rosemary Dixon renounced her claim under the will and elected to take one-fourth of the estate. The remaining allegations are in substance as follows: Prior to April 29, 1941 Alvy Dixon entered into negotiations with the Keystone Cattle Company of Pennsylvania to purchase property hereinabove described. The negotiations resulted in an agreement whereby the above mentioned cattle company agreed to sell to Alvy Dixon, and Alvy Dixon agreed to buy, the property above mentioned for the sum of $27,000, one- half of which, namely $13,500 was to be paid upon the delivery of a warranty deed to G. R. McConnell, attorney for Alvy Dixon, and the balance to be paid in accordance with four promissory notes secured by a mortgage on the real estate and to be executed by Alvy Dixon payable to John B. Carter as trustee. The deed was duly executed with Alvy Dixon as the grantee on April 29, 1941 and was sent to the attorneys representing the cattle company in Laramie, Wyoming to be held by them until receipt of the down payment and notes and mortgage above described. The sellers prepared a mortgage to be executed by Alvy Dixon and Rosemary Dixon for the purpose of releasing her homestead rights in the real estate. The attorney for Alvy Dixon objected to Rosemary Dixon being made a party to the mortgage upon the ground that her signature was no required. Her signature thereto could not be obtained since she protested against and objected to the purchase of the land, claiming that her husband's land and livestock holdings were sufficient in view of his age and physical and mental condition and that the purchase price should be kept in cash. The sellers, however, refused to accept the mortgage unless Rosemary Dixon was made a party thereto, so the attorney for Alvy Dixon, without the knowledge or consent of his client, presented the mortgage to Rosemary Dixon and requested her to execute it, but she refused to sign the same unless her name was inserted in the warranty deed as one of the grantees. In order to conclude the transaction the attorney for Alvy Dixon, with the consent of the sellers but without the knowledge or consent of his client Alvy Dixon, and solely at the instance and demand of Rosemary Dixon, caused her name to be inserted in the warranty deed as one of the grantees, and Rosemary Dixon thereupon executed the mortgage, and the warranty deed, as altered, named Alvy Dixon and Rosemary Dixon as the grantees therein. The deed and mortgage above mentioned were thereafter duly recorded with the County Clerk of Carbon County, Wyoming. The purchase price for the real estate including the indebtedness due on the notes and mortgages was paid in its entirety by Alvy Dixon and he was the sole owner of the real estate at the time of his death. He, the said Alvy Dixon, at the time of his death and prior thereto did not know that Rosemary Dixon was a party to the deed. Prior to April 16, 1943, Alvy Dixon, being then 82 years of age, had for some time before been of unsound mind to transact business, and was on the date mentioned judged incompetent, and L. E. Dixon was appointed his guardian. The defendant Rosemary Dixon now claims that because her name was included with her husband's as a grantee that she became the sole owner of the real estate above mentioned upon the death of Alvy Dixon to the exclusion of all other legatees, devisees, and heirs of the deceased. However, she holds the real estate as trustee for the use and benefit of the legatees, devisees and heirs of the deceased including herself: 'Wherefore, Plaintiff prays that the real estate herein described be adjudged to be held by said Defendant in trust for the use and benefit of the devisees and legatees of said deceased, including the defendant as an heir, and that said Plaintiff, G. R. McConnell as Executor of said estate be authorized to handle said real estate in his fiduciary capacity as an asset of said estate.'

The answer of Rosemary Dixon, admitting the allegations of Paragraphs 1 to 4 of the second amended petition, alleges that the deed to the Murray Ranch was executed to Alvy Dixon and Rosemary Dixon, husband and wife; that it was understood and agreed prior to the purchase of the ranch between Rosemary Dixon and her husband that the ranch was to belong to them as tenants by the entireties, and that she was to be named in the deed as a grantee; that she protested the purchase of the ranch and refused to sign the mortgage unless her name was inserted in the deed. The answer also alleges that her name was in fact inserted in the deed as a grantee, and that the deed, as changed, was placed on record, and alleges that such alteration was in accordance with the agreement previously had between her and her deceased husband. It is further alleged that the decedent had knowledge of the fact that Rosemary Dixon was named as a grantee in the deed and that the decedent ratified and confirmed this transaction by entering into a written lease dated February 15, 1943, running from Alvy Dixon and Rosemary Dixon, husband and wife, to Bryan White, lessee, covering said ranch.

Subsequently, Bryan White and Frances H. White were, by a supplemental petition, made parties to the action. They answered the petition of the plaintiff in substance claiming to be the owners of the property here mentioned by virtue of a quitclaim deed dated November 27, 1947 made by Rosemary Dixon to Bryan White and Frances H. White.

The trial court entered judgment in the case on January 26, 1950, generally finding for the plaintiffs and against the defendants, and finding the allegations of the second amended petition and supplemental petition to be true. The court made specific findings which are in accord with the allegations of the second amended petition and need not be set out. It further found that Bryan White and his wife accepted the quitclaim deed from Mrs. Dixon heretofore mentioned with knowledge of the pendency of this action, and that said quitclaim deed is null and void and of no effect whatever; that the title...