Mower v. Mower
| Decision Date | 20 August 1924 |
| Docket Number | 4116 |
| Citation | 228 P. 911,64 Utah 260 |
| Court | Utah Supreme Court |
| Parties | MOWER v. MOWER |
Rehearing denied September 23, 1924.
Appeal from District Court, Seventh District, Sanpete County Dilworth Woolley, Judge.
Action by James Byron Mower, administrator of estate of Wm. E Mower, deceased, against Cecelia Mower. Judgment for defendant, and plaintiff appeals.
REVERSED and REMANDED for new trial.
A. W. Jensen, of Ephraim, and A. H. Christenson, of Manti, for appellant.
Lewis Larson, of Manti, for respondent.
CHERRY, J., being disqualified, did not participate.
This is an action in which the plaintiff, in two causes of action, seeks to quiet title to certain real estate and water rights as the property of Wm. E. Mower at the time of his death, and to cancel two deeds covering the said property in favor of defendant.
Plaintiff in his complaint alleges in substance that Wm. E. Mower died intestate at Milburn, Sanpete county, Utah, on April 15, 1921, leaving a widow and two families of children, one family by defendant, who was known as his plural wife; that the plaintiff was the duly appointed administrator of the estate of Wm. E. Mower; that at the time of his death he was the owner of the real estate and water rights described therein and the subject of this action; that in the years 1912 and 1913, respectively, Wm. E. Mower and wife made deeds to the said lands to defendant, but never delivered the deeds to defendant; that, after the death of said Wm. E. Mower, defendant unlawfully obtained possession of said deeds and recorded the same; and that defendant has possession of the said property and refuses to surrender it to plaintiff.
Defendant admits the making and recording of the deeds, but denies the other allegations of the complaint. For further defense, defendant alleges that the deeds described in the complaint were at the respective dates thereof made, executed, and delivered to the defendant and accepted by her, and that ever since said times she has been the owner of and entitled to and in possession of the said property.
The real issue in the case, therefore, was whether or not the deeds in question were ever delivered so as to pass the title to defendant.
The evidence showed that Wm. E. Mower lived with his two wives in two homes about a quarter of a mile apart, on his farm, and that at the time of his death left surviving him Emily R. Mower, his widow, and seven children by her; also eight children by the defendant. It appears that after Mr. Mower's death all of his papers were found in a safety deposit box in the vault of the Fairview State Bank. The box was opened by the cashier of the said bank in the presence of both families, and in it were found the deeds in question, together with unrecorded deeds to Emily R. Mower conveying other property, as well as other unrecorded deeds, also two documents reading:
A similar order in favor of Emily R. Mower, together with the stock certificate for the amount of the two orders, was found in the box. The evidence also shows that deceased, shortly after the organization of the Fairview State Bank in 1914, rented the safety deposit box in the bank and kept his papers in the same, and that he was the only person having access to the box. That after the dates of the deeds the deceased continued to farm, manage, and control the farm, paying the taxes, and in his own way and as owner receiving and disposing of the products of the same up to the time of his death, and also that at one time he mortgaged the property for the purpose of taking up a prior mortgage thereon, that had become past due.
There is no evidence that the orders for transfer of water rights were ever delivered to grantees during the lifetime of the deceased; and it was admitted at the trial that the records of the irrigation company showed the same number of shares of stock standing in the name of Wm. E. Mower at the date of his death.
It appears that, when the safety deposit box was opened in the presence of the two families, each of the persons named as grantees in the deeds took their respective deeds and papers, Emily R. Mower retaining the old box held by Wm. E. Mower in his lifetime, and defendant renting a new box for her deeds. Later the parties recorded their respective deeds. Some dispute arose, and the widow Emily R. Mower offered to reconvey the property covered in the deeds to her, and requested Cecelia, defendant, to do the same. The request was refused and this suit is the result.
The evidence of delivery of the deeds relied upon by the defendant consists of the testimony of some six of her children and the widow of one of her deceased sons, to the effect that they saw the deeds in their mother's possession a short time after they were made, and some of the witnesses testified that they talked the matter over with their father (the deceased), and that he explained to them what the deeds were; that this was done after he had requested the defendant to produce the deeds, and that she produced them in her home. Two or three of the witnesses testified that when the bank at Fairview was opened they heard their mother (defendant) discussing with their father the advisability of his taking the deeds to the bank for safe-keeping for her.
The district court found in favor of delivery, and made findings and judgment awarding the property described to the defendant. Plaintiff appeals.
The plaintiff relies for reversal upon alleged error in permitting the defendant's children to testify as to the delivery of the deeds, on two alleged errors on ruling excluding evidence, and that the finding as to delivery is contrary to the weight of the evidence. There seems to be no dispute between counsel that, where a deed is signed and acknowledged, but found to be in possession of grantor at the time of his death, a presumption arises that it was never delivered, so that the burden of proving delivery is upon defendant. For this proposition, see Donahue v. Sweeney, 171 Cal. 388, 153 P. 708; 13 Cyc. 733, and note collecting cases in 44 L.R.A. (N. S.) 528. Plaintiff assigns as error the admission of the testimony of defendant's children as to delivery. If this evidence is incompetent as claimed by plaintiff, then there would be no evidence to sustain the finding of delivery. Plaintiff contends that these witnesses were incompetent to testify under the provisions of subdivision 3, § 7123, Comp. Laws Utah 1917, which reads as follows:
This section of the statute has frequently been before this court, and similar sections have been before a number of courts, and the cases, like the language of the statute, are not entirely free from confusion.
Appellant here argues that because these witnesses are children of the deceased, Wm. E. Mower, they have a direct interest in the result of the suit, and, are therefore prohibited from testifying under the statute, citing Ewing v. White, 8 Utah 250, 30 P. 984; Hennifer v. Hays, 14 Utah 324, 47 P. 90; Clawson v. Wallace, 16 Utah 300, 52 P. 9; Robison v. Gull, 52 Utah 323, 173 P. 905. None of these cases help us much in the case at bar because they are all cases where a party to the suit attempted to testify to transactions with deceased persons, and therefore came within the plain provisions of the statute.
In the case at bar we are asked to make a rather unique application of the statute, and hold that, because these children are heirs of the deceased and therefore interested in seeing his estate increased by voiding these deeds for lack of delivery still they are by this statute made incompetent to testify against this interest, viz., to facts which tend to prove there was a delivery, and therefore defeat their own interest. We do not believe the statute was intended to go that far. If we assume that these parties have an interest in the event of this suit by reason of the fact they are heirs of the deceased, then that interest is with the plaintiff and not with the defendant, so that the adverse party (defendant) is not defending as an administrator heir, or legatee, or devisee of the deceased, Wm. E. Mower, but is defending in her own right as grantee in the deed, so that the express terms of the statute do not exclude these witnesses. It would seem, therefore, that "party interested" here should refer to a party whose interests in the event of the suit are adverse to the interests of the deceased...
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Stanley v. Stanley
... ... appears that the declarations are made fairly and in the ... ordinary course of life." Mower v ... Mower, 64 Utah 260, 228 P. 911, 914 ... Then ... also these declarations were reinforced by the sworn ... declaration of the ... ...
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...to the hearsay rule. Hansen v. Bear Film Co., 28 Cal.2d 154, 168 P.2d 946, 959; Schultz v. Young, 37 N.M. 427, 24 P.2d 276; Mower v. Mower, 64 Utah 260, 228 P. 911; 105 A.L.R. 410; Williams v. Kidd, 170 Cal. 631, 151 P. 1, 8, Ann.Cas.1916E, 703. Where the deed is found among decedent's pers......
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...been a good delivery, there was nothing done or said thereafter which had any effect to invalidate the deeds. As stated in Mower v. Mower, 64 Utah 260, 228 P. 911, 914: 'delivery is essentially a matter of intent, which intent is to be arrived at from all the facts and surrounding circumsta......
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