Merkamp v. Niles

• Citation: 62 S.D. 241,252 N.W. 636
• Decision Date: 13 February 1934
• Docket Number: 7498
• Parties: CAROLINE MERKAMP, et al., Respondents, v. MINNIE NILES, Appellant.
• Court: South Dakota Supreme Court

62 S.D. 241

252 N.W. 636

CAROLINE MERKAMP, et al., Respondents,

v.

MINNIE NILES, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Aurora County, SD Hon. A.B. Beck, Judge #7498—Reversed D.K. Barrett, Plankinton, SD Roscoe Satterlee, Mitchell, SD Attorneys for Appellant. Fellows & Fellows, Mitchell, SD Attorneys for Plaintiffs Respondents. Miller & Shandorf, Mitchell, SD Attorneys for Defendant Respondent Jens Jensen. Opinion Filed Feb 13, 1934

POLLEY, Judge.

This action is brought to quiet title to two half sections of land in Aurora County. The land belonged to Andrew Jensen during his lifetime. He died intestate on the 24th day of July, 1931. The defendant Minnie Niles is decedent’s sister. Defendant Jens Jensen is a brother of decedent and also administrator of decedent’s estate. Plaintiffs are heirs at law of said decedent.

On the 13th day of July, 1925, decedent executed two deeds conveying the said land to Minnie Niles. These two deeds, together with other papers, were sealed up in an envelope and handed to the witness Loevinger, who was president of the Aurora County Bank. The other papers contained in said envelope were a written assignment to said Minnie Niles of two certificates of deposit, one for $2,000 and the other for $1,000, a bill of sale transferring to said Minnie Niles title to a considerable amount of personal property, and a check payable to her for $300. On the outside of the envelope containing these papers decedent made the following endorsement:

“To Aurora County Bank: in case of my death you are hereby authorized and instructed to deliver this envelope and the papers contained therein to Mrs. Minnie Niles. Dated

“July 13, 1925.

“[Signed] Andrew Jensen.

The envelope and contents were then handed to and left with Mr. Loevinger, with instructions that, if anything happened to decedent, or in case of his death, to deliver said papers to Mrs. Niles. The matter does not appear to have been again called to the attention of the witness until during the month of May, 1931, when decedent came into the bank and said: “Loevinger what do you charge for a box, a safety deposit box to keep my papers in?” On being told what a box would cost, he said: “Well I want one and I want to keep all my papers in there.” He had some papers in his hand at the time. Witness gave him a box and left the room, but returned shortly, when decedent said: “Now, let me have those papers that I left for Minnie.” Witness gave decedent the envelope containing the above-mentioned papers and again left the room. On returning to the room some little time later, decedent said: “I put all my papers in here and I put in Minnie’s papers, if anything happens to me now, if I should die you hand Minnie those papers, here are the keys.” He had removed the deeds from the envelope in which they were contained when they were first left with the, witness, and the envelope was not put in the box and was not seen by the witness thereafter. After decedent’s death, the witness gave the contents of the box, including the two deeds involved, to Mrs. Niles, and on the 1st day of August, 1931, she caused the said deeds to be recorded in the office of the register of deeds, and now claims to be the owner in fee of the said land. Plaintiffs, as heirs at law of the said decedent, claim that the said deeds were never delivered to Mrs. Niles and were never effective to convey title to her, and that the same are null and void.

The case was tried to the court. Findings of fact, conclusions of law, and judgment were for plaintiffs, and defendant appeals.

The deeds are regular on their face. They are in the possession of the grantee. They are presumed, to have come lawfully into her hands, and constitute a prima facie case of ownership in the grantee, Minnie Niles. In order to establish their case, the plaintiffs have the burden of proving, and by a preponderance of the evidence, that there was not such a delivery of the deeds as to indicate on the part of the grantor an intention to immediately pass the title to the grantee, or that the deeds were not intended to become operative to pass the title until after the death of the grantor. As stated in plaintiffs’ brief: “The only issue is as to the delivery of the deeds, the question being whether the grantor intended to part with all control and dominion over the instruments, thus making a valid delivery or whether he intended to reserve the right to alter or amend the disposition of his property and for that purpose retained some measure of control over the instruments, in which case, delivery must be held not to be had and the deeds void.”

The question involved in this case has been considered by this court in the following cases: Trumbauer v. Rust, 802, 11 ALR 10; O’Connor v. McCabe, and Stalting v. Stalting, 217 N.W. 386, 389.

In Trumbauer v. Rust, supra, a case on all fours with this, the court, speaking through Mr. Justice Whiting, said: “... In every case, the court has sought to determine the intent of the makers and has held the writing to be either a deed or a testamentry conveyance according as the ascertained intent of the grantor was to convey a present interest with enjoyment thereof postponed, or was to postpone both the vesting of the interest and the enjoyment thereof, each case stood upon its own peculiar facts—the wording of the particular writing, the declarations of the maker at the time of executing the writing, in fact all surrounding circumstances tending to reveal the intent of the maker.”

And again: “We are convinced that the clear intent of the makers was to transfer fee title to the grantee subject to a life estate reserved to themselves; that upon the delivery and acceptance of the deed by the grantee both he and appellants became possessed of rights thereunder which could not be changed by any future acts of the makers.”

And again in Stalting v. Stalting, supra, this court, speaking through Mr. Justice Campbell, said: “We believe the sound rule, and that sustained by the weight of authority, is that, if the grantor unconditionally hands over the deed to the depositary, placing it beyond the control and dominion of the grantor, with instructions to transmit to the grantee at grantor’s death, there is then a valid, effective, and irrevocable delivery of the...