Myers v. Diehl, 39352

• Decision Date: 17 October 1961
• Docket Number: No. 39352,39352
• Citation: 365 P.2d 717
• Parties: Helen Diehl MYERS, Plaintiff in Error, v. Nora L. DIEHL, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 717

365 P.2d 717

1961 OK 239

Helen Diehl MYERS, Plaintiff in Error, v. Nora L. DIEHL, Defendant in Error.

No. 39352.

Supreme Court of Oklahoma.

Oct. 17, 1961.

Syllabus by the Court

1. Where the record does not unequivocally show a ruling by the trial court on a demurrer, claimed error of said court in 'overruling' it will not be considered on appeal.

2. Where plaintiff sued to cancel deeds she had executed and delivered to defendant, on the ground of defendant's failure (other than to furnish some groceries) to keep her oral agreement to defray plaintiff's necessary expenses the rest of her life, which allegedly constituted the deeds' consideration; and defendant maintained all through the trial that her furnishing of the groceries was not referable to any such agreement, her claim on appeal that plaintiff's acceptance of the groceries estopped her under Tit. 16 O.S.1951 § 11, demonstrated no ground for reversal.

3. Record examined and Held: The trial court's findings and judgment that the deeds were executed and delivered in consideration for defendant's agreement to furnish plaintiff all necessities the rest of her life, and that there was such failure of said consideration as to justify cancellation of the deeds, was neither clearly against the weight of the evidence, nor contrary to any law invoked for reversal.

Appeal from the District Court of Stephens County; Arthur J. Marmaduke, Judge.

Action by plaintiff for cancellation of deeds previously delivered to defendant, and for allowing defendant a judgment and lien on the property in the amount of $200 for groceries she had furnished plaintiff. After judgment granting plaintiff the relief she sought for herself, and a larger lien than prayed for in favor of defendant, the latter appealed. Affirmed.

Geo. W. Moser, Comanche, for plaintiff in error.

Bond & Bond, Duncan, for defendant in error.

BLACKBIRD, Vice Chief Justice.

Plaintiff in error and defendant in error are sisters. This appeal involves a controversy between them as to real estate, consisting of an undivided one-half interest in a 120-acre tract of land, an undivided one-fourth interest in a 40-acre tract (both unimproved), the minerals under two 80-acre tracts, and defendant in error's home in Duncan, Oklahoma, all of which is said to have a combined total value of $12,500. These parcels of real estate were described in five separate deeds, or conveyances, reciting a consideration of 'One Dollar and other valuable considerations, in hand paid, the receipt of which is hereby acknowledged * * *', which defendant in error executed in her attorney's office, and delivered to plaintiff in error, on February 15, 1957.

The principal purpose of this action, instituted in November, 1959, by defendant in error, as plaintiff, against plaintiff in error, as defendant, was to cancel those deeds. The parties will hereinafter be referred to by their trial court designations.

All of the property, except the Duncan residence, had belonged to the parties' parents, who had divided it between themselves, when they were divorced in 1926. After the divorce, plaintiff, who has never married and is now more than 67 years of age, and has been in frail health most of her life, continued to live with her mother, in the family's former farm home, until the mother died in 1948. The father made his home with defendant, who, with her husband, has for several years operated a grocery store in Comanche, Oklahoma, in, or connected with, the couple's residence in that city.

In 1943, before she started receiving benefits through the State Public Welfare Department, the parties' mother deeded the farm, on which the two lived together, to plaintiff, along with apparently all of the other rural property involved therein, except one parcel, not completely described, which we may refer to as tract 'X'. The latter was deeded to plaintiff by her father in the fall of 1940, by way of paying off a promissory note for $600, which, earlier that year, he had executed and delivered to the mother. He deeded a different 80-acre tract to defendant; and thereafter died.

After the parties' mother died in 1948, plaintiff sold the farm home, after moving to Duncan. She applied its sale proceeds on the balance of the purchase price due on her newly acquired Duncan home, that, with the other above-mentioned real estate, is involved here.

In 1955, plaintiff became temporarily incapacitated from what she apparently feared might be a fatal illness, and was hospitalized. She gave defendant a power of attorney covering the subject real estate, as well as $500 in cash to put in her lock box for safekeeping and defrayal of her expenses. After her hospitalization for only two days, plaintiff's condition improved, and the power of attorney was never used, but defendant continued her custody of the cash, plaintiff had delivered to her, for some time afterward, paying some of her bills with part of it and deducting therefrom small amounts to meet plaintiff's periodic requests for cash. After a while defendant returned to plaintiff $342.25 as the unexpended remainder of that original fund.

It was after plaintiff had suffered recurring periods of illness in 1956, and the early part of 1957, and her funds were repleted to an insecure level, that she gave defendant the subject deeds, herein sought to be set aside, or cancelled. In her petition, plaintiff alleged the deeds were executed and delivered pursuant to an oral agreement between her and the defendant, that defendant would 'take care of * * * (her) and furnish her with medical care and attention and the necessities of life as long as plaintiff lived.' The ground upon which plaintiff prayed for the stated relief was that defendant had breached the agreement, resulting in a failure of consideration for the deeds. Notwithstanding this claim, plaintiff further alleged that defendant, during the period from the 1957 date of the deeds until the filing of the action, had furnished plaintiff with approximately $200 'worth of groceries', and prayed that defendant be allowed a lien for that amount on the properties involved.

After her filing of preliminary pleadings, and a court ruling hereinafter alluded to, defendant filed an answer, in which she admitted plaintiff's execution and delivery to her of the subject deeds, and alleged that she had not only 'paid the consideration * * * set forth' therein, but had '* * * for several years, cared for and looked after the plaintiff.' She further alleged, among other things, that she had, for several years, given plaintiff any groceries she desired and that 'as a sisterly act' she had taken her to, and offered to pay for, any doctor whose care she desired. As to the property which she, in substance, alleged was validly and irrevocably conveyed to her and that she now owns through the subject deeds, defendant alleged that by reason of 'much' of the property having belonged to the parties' parents, she had an equitable interest in it, prior to the deeds; and that, upon the deeds' delivery to her, she went into possession of the property, and has since paid the taxes thereon.

At the trial, defendant introduced no direct evidence that the parties' mother's conveyances to plaintiff were made with the intention, or understanding, that any interest therein would belong to defendant, or be held in trust for her by plaintiff, except the circumstances that, on one occasion after the parents' divorce, defendant had cared for the mother about a month while plaintiff had the flu. Testifying on her own behalf, defendant claimed that the parties' father had placed the title to the hereinbefore mentioned Tract X in plaintiff's name, only for the remainder of his life; and, though she asserted an equitable interest in said tract, defendant denied that plaintiff had any comparable interest in the tract their father had given her, as aforesaid.

It was revealed by the testimony that, after her delivery to defendant of the deeds herein sought to be cancelled, plaintiff commenced receiving Social Security benefits of $29.60 per month in 1957 and 1958, and has supplemented that income with earnings as a baby-sitter, and from furnishing lodging in her home to some nurses. According to plaintiff's testimony, as long as the title to the property was in her name, her total income from it did not exceed $50 per month, which was no more than sufficient to defray the taxes and cost of the insurance thereon. In her testimony, defendant admitted that her payment of the taxes on the property (after its conveyance to her) was made out of its income. Defendant's testimony contradicted plaintiff's, that the consideration for the deeds to defendant was a promise by her to defray the cost of plaintiff's needs the rest of her life, but her only attempts to explain directly why her sister executed and delivered the deeds, are found in her testimony on recross-examination by plaintiff's attorney, as follows:

'Q. And you never had any agreement with her? A. No, sir, she never asked me and we had no agreement.

'Q. She wanted you to have her land and she stripped herself of everything she owned just so you could have it for no reason? A. For no reason.

'Q. Yes? A. Well, I had been helping her. I had been giving her groceries for two years. And she knew that if there was any income on her land she would get part of it. * * *

'Q. She was ill, and she owned some land and minerals and her home and she deeded to you everything she owned and stripped herself of everything she owned so that you could have it for no reason? A. I never got any money off of the...