Nalley v. First Nat. Bank

• Decision Date: 09 December 1930
• Citation: 135 Or. 409,293 P. 721
• Parties: NALLEY v. FIRST NAT. BANK OF MEDFORD ET AL.
• Court: Oregon Supreme Court

293 P. 721

135 Or. 409

NALLEY v. FIRST NAT. BANK OF MEDFORD ET AL.

Supreme Court of Oregon

December 9, 1930

Department 1.

Appeal from Circuit Court, Jackson County; H. D. Norton, Judge.

Suit by P. K. Nalley against the First National Bank of Medford and others, in which defendant Anna C. Nalley filed a cross-bill. From a decree dismissing the complaint and cross-bill plaintiff and cross-complainant appeal.

Modified and affirmed.

This is a suit instituted by P. K. Nalley, plaintiff and appellant for the purpose of procuring a declaratory decree to the effect that, he (the said P. K. Nalley) is the owner of an undivided one-half interest in and to certain property described in a certain instrument executed on the 11th day of February, 1928, by William A. Pointer, now deceased, and to impress a trust upon such property.

On said 11th day of February, 1928, the plaintiff and appellant P. K Nalley was, and, for several years theretofore, had been, the husband of defendant and appellant Anna C. Nalley, now deceased. Said Anna C. Nalley was the daughter of said William A. Pointer.

In December, 1927, said William A. Pointer signed a written instrument, which, by its terms, purports to convey the property in controversy to said Anna C. Nalley. This instrument was not delivered.

On the 11th day of February, 1928, said William A. Pointer executed the instrument under which plaintiff and appellant claims to have become the owner of an undivided half of the property in controversy. That instrument is in words and figures as follows:

"This indenture witnesseth that I, William A. Pointer, a widower of the county of Jackson, state of Oregon, hereinafter called the grantor, for and in consideration of the sum of one dollar and other good and valuable consideration to me in hand paid by Anna C. Nalley and Peter K. Nalley, wife and husband, of said county and state, hereinafter called grantees, the receipt of which is hereby acknowledged, have sold, assigned, transferred, set over and conveyed, and do by these presents sell, assign, transfer, set over and convey unto the said grantees and to the survivor thereof that certain claim for $4,000.00 due to me from Gus Godett; and that certain claim for $8,000.00 due to me from Charles Heimroth and wife; and that certain claim for $1,500.00 due to me from J. T. Brewer; and that certain claim for $1,800.00 due to me from C. C. Wheeler; and that certain claim for $400.00 due to me from Grace Gobel; and that certain claim for $800.00 due to me from Gus Godett; and all of said claims being secured by escrow agreements now in the hands of the said Anna C. Nalley, and I do hereby grant, bargain, sell and convey unto the said grantees all of my right, title and interest in the real property given to secure said claims as represented by conveyances in said respective escrow agreements.

"The purpose of this conveyance is to substitute and supplant the said grantees for myself, and in my place and stead in the said conveyances so given as security, hereby making and constituting them, the said grantees, the absolute owners thereof.

"The foregoing provisions of this conveyance, however, shall not go into effect or be in force until after my death, nor shall this instrument be recorded before my death, and I do hereby authorize and direct the said grantees, Anna C. Nalley and Peter K. Nalley, immediately after my death shall occur, to pay out of the funds hereby conveyed, or out of other money of my estate, the sum of one thousand ($1,000.00) dollars unto J. C. Cass and his wife, or the survivor thereof, said sum of $1,000.00 being in consideration of the kindly services rendered unto me and unto my deceased wife in time of trouble and need of such sympathetic services, and I do hereby expressly authorize and direct the payment of $1,000.00 therefor, to be so paid by the said grantees after my death as aforesaid.

"To have and to hold the said described property, and all of my right, title, interest or equity in or to the real property given to secure said respective loans unto the said grantees and their heirs and assigns forever.

"In witness whereof, I have hereunto subscribed my name and affixed by seal this, the 11th day of February, 1928.

"Wm. A. Pointer. [ Seal.]

"Done in presence of:

"W. E. Phipps.

"Mary H. Wilson.

"State of Oregon, County of Jackson--ss.

"This certifies that on this, the 11th day of February, 1928, before me, the undersigned, a notary public within and for the above named state and county, personally appeared William A. Pointer, a widower, to me personally known to be the individual named and described in, and who executed the within and foregoing conveyance, and acknowledged to me that he executed the same freely and voluntarily, for the uses and purposes therein named.

"Witness my signature and official seal hereunto affixed this, the day and date in this certificate above written.

"W. E. Phipps, Notary Public for Oregon.

"My commission expires Dec. 8, 1928."

In March, 1928, Anna C. Nalley executed a written instrument, which by its terms conveyed all her interest in the property in controversy to said William A. Pointer.

In April, 1928, Mr. and Mrs. Nalley were divorced.

Defendant and appellant Anna C. Nalley, by a cross-bill, seeks to have the said instrument executed by her in March, 1928, reformed, so that the same shall apply to and convey only her interest in loans, which she acquired by advancing funds when said loans were made.

On the 30th day of June, 1928, William A. Pointer executed a will, which by its terms devised and bequeathed an undivided one-third of his estate to his daughter Anna C. Nalley; an undivided one-third thereof to said P. K. Nalley, and the remaining one-third thereof to said J. C. Cass and wife.

On the 10th day of October, 1928, said William A. Pointer executed another will, which by its terms devised and bequeathed an undivided two-thirds of his estate to his daughter Anna C. Nalley, and the remaining one-third to respondents Cass.

On the 25th day of January, 1929, said Pointer executed still another will by the terms of which he devised and bequeathed to his daughter Anna C. Nalley one-half of his estate, and to respondents Cass, or the survivor, the remaining one-half.

On January 30, 1929, said William A. Pointer died in Jackson county, Or., at the age of eighty-five years; and subsequently the will last above mentioned was admitted to probate.

On June 13, 1930, Anna C. Nalley, defendant and appellant, died in Jackson county, Or., and on September 30, 1930, by an order of this court, plaintiff and appellant P. K. Nalley, as administrator of her estate, was substituted for her as party defendant and appellant.

The county court entered a decree dismissing plaintiff's amended complaint and the cross-complaint of defendant Anna C. Nalley, and declaring defendant B. E. Harder, as executor, to be the owner of the property in controversy.

Charles W. Reames, of Medford and E. M. Page, of Salem, for appellant P. K. Nalley.

Harry C. Skyrman, of Medford, for appellant Anna C. Nalley.

Porter J. Neff, of Medford, for respondents.

KELLY, J. (after stating the facts as above).

During the course of the trial, a partial transcript of testimony taken by W. J. Looker, at the instance of the attorney for Mr. Pointer, in a proceeding in the county court, was received in evidence over the objection of plaintiff and appellant. This proceeding had been instituted by defendant and appellant Anna C. Nalley for the purpose of having her father, William A. Pointer, declared to be an incompetent and having a guardian appointed for him. Mr. Looker, the stenographer who took the testimony, though doubtless most proficient, was not appointed by the court for that purpose and was in no sense an official court reporter. Moreover, the proper foundation was not laid for the use of his notes to refresh his memory while testifying. This partial transcript of testimony should not have been received in evidence. Our view of the record, however, renders its admission harmless.

It is contended by respondents that there was no delivery by Pointer to the Nalleys of the instrument dated February 11, 1928. Upon that question, Mr. Nalley testified, directly and positively, to the effect that such delivery was made. As to the actual passing of the instrument from the hands of Mr. Pointer to those of the appellant Mr. Nalley, he (Mr. Nalley) is corroborated by Mr. Phipps. The instrument itself was taken to the bank. The testimony of the officials of the bank was negative. The conservatism which properly actuates good bankers, when contemplating the uncertainty which attends litigation, caused these officers, when apprised of the imminence of this litigation, to decline to surrender the documents involved until so directed by a court having jurisdiction of the controversy.

The statement of Mr. Pointer in his last will, to the effect that he retained possession of the instrument in question, if given the effect of a denial that he delivered the same to Nalley, when considered in the light of his advanced age and his vacillating course, is not sufficient to counterbalance the probative value of the direct testimony of Mr. Nalley and Mr. Phipps.

It is also contended that the instrument is testamentary in character, and therefore superseded by the last will and testament which has been admitted to probate. This contention is based upon the following clause in the...