Nalley v. First Nat. Bank

• Decision Date: 03 March 1931
• Parties: NALLEY v. FIRST NAT. BANK OF MEDFORD ET AL.
• Court: Oregon Supreme Court

296 P. 61

135 Or. 409

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

Supreme Court of Oregon

March 3, 1931

Department 1.

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

On petition for rehearing.

Petition denied.

For former opinion, see 293 P. 721.

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.

The petition for rehearing, as we construe it, presents the contention that in our original consideration of this case we did not bear in mind the events occurring after the execution of the instrument dated February 11, 1928, and conveying the property in controversy to P. K. and Anna C. Malley. For convenience, we will refer to this instrument as Exhibit A.

The suggestion is also made that we should have referred to the conversation between Mr. Pointer and Mr. Phipps just before the delivery of Exhibit A.

We cannot believe that the petitioners challenge the truth of the statement that the instrument dated December, 1927 purporting to convey the property in controversy to Anna C Nalley, was not delivered. As we construe petitioners' position in that regard, it is that, because this instrument was not delivered, we should have held that Exhibit A was not delivered.

We find no protest by petitioners against our holding with respect to the validity of the instrument executed in March, 1928, by Anna C. Nalley conveying her interest in said property to Mr Pointer. As to the property in controversy, this instrument was entirely unnecessary and futile if there had been no delivery of Exhibit A. To the extent of its validity as a transfer of an interest in the property described in Exhibit A, it is a practical construction by Pointer of Exhibit A to the effect that Exhibit A had been delivered and title in the property had passed to the Nalleys.

The events to which the petition calls our attention are:

(1) Nalley's failure to take action, after knowledge of the execution of a will by Pointer, to prevent the provisions of the will from becoming effective.

(2) Nally's relation to the proceedings instituted for the appointment of a guardian for Pointer and Nalley's testimony therein.

(3) The possession by Pointer at his death of a receipt, bearing date of December 14, 1927, for an escrow package placed in the bank.

(4) The refusal of defendant, Harder, also an officer in the bank, to deliver to Pointer the papers in escrow.

We will first present the testimony of Mr. Phipps as to what occurred just before and when Exhibit A was prepared by him (Transcript of Testimony, pp. 105 and 106):

"Q. Now do you recall an instance of Mr. Pointer coming to your office later on and wanting another instrument drawn giving half to Mrs. Nalley and half to Mr. Nalley? A. Yes sir.

"Q. Just relate to the court what were the circumstances of that case? A. He came up one morning and said that he wanted to make a new conveyance, in which he was intending to convey one-half of the property to Mr. Nalley, and one-half of the property to Mrs. Nalley, and still reserve $1,000.00 to Mr. Cass.

"Q. Was such an instrument drawn? A. It was.

"Q. Is that the true and correct instrument attached to the complaint in this case and made a part of it? A. It is.

"Q. Did you have any conversation with him about what should be done with the instrument passing present title or anything in that regard? A. That was his intention and my understanding of what he said.

"Objection. * * *

"The Court: State what was said about it. * * *

"A. He said: 'I want to convey my property to Mr. and Mrs. Nalley.' And he said: 'I expect there will be enough interest from the transactions to keep me during my lifetime; but,' he said: 'I don't want to turn it over to them until after my death.'

"Q. Do you know whether or not there was any--what was his intent at that time, or did you give him any instructions at that time as to what he must do with the instrument to convey the property the way he desired to? A. Yes. I told him he should either deliver it to Mr. Nalley or Mrs. Nalley, and then I further suggested that he deposit it in the bank, in his bank box or turn it over to the bank, the cashier or an officer of the bank, one or the other.

"Q. Now did you leave your office with Mr. Pointer? A. Yes. I did.

"Q. And did you at the time meet Mr. Nalley? A. Yes sir.

"Q. Where did you meet him? A. I went out with Mr. Pointer into the hall and was going to show him down the stairs and when we got to the back head of the stairs we met Mr. Nalley coming up for Mr. Pointer.

"Q. Was any conversation had there between Mr. Nalley and Mrs. Nalley and Mr. Pointer at that time when you were present? A. I didn't hear anything but I saw Mr. Pointer hand this conveyance over to Mr. Nalley.

"Q. How long would you say that was after you had instructed Mr. Pointer to pass his present interest it must be delivered. A. I think five or six minutes."

Taken in its entirety, this testimony is corroborative of Mr. Nalley's claim that Exhibit A was delivered by Pointer to Nalley.

We have stated above that we cannot believe that petitioners challenge the truth of the statement as to the nondelivery of the instrument dated December, 1927, purporting to transfer the property in controversy to Anna C. Nalley. Our reason for this is that in plaintiff's first brief, at page 7, we find this statement:

"In December, 1927, while Mr. and Mrs. Nalley were husband and wife, Pointer made a conveyance of the property here in controversy unto Mrs. Nalley. This conveyance was never delivered."

In the first brief of defendant Anna C. Nalley, at page 4 thereof, we find this statement:

"Plaintiff has made a very complete statement of the case. It is not necessary to repeat the same herein. We adopt it as the statement of this appellant with exception that the same should be more definite as to the execution of the transfer from this appellant to Pointer."

The excerpts from the briefs just quoted disclose a formal admission of nondelivery by the grantee named therein. Another reason for so holding is that the only testimony in the record on the subject discloses that there was no delivery thereof.

We are, however, utterly unable to adopt petitioners' reasoning to the effect that, inasmuch as there was no delivery of this instrument, we must hold that there was no delivery of Exhibit A.

Four months and nineteen days after the execution of Exhibit A, Pointer made a will containing a bequest of one-third of his estate to plaintiff, one-third to Anna C. Nalley, and one-third to defendants Cass.

In the meantime, divorce proceedings had been instituted and a divorce granted between the Nalleys, and Pointer had taken up his abode with the defendants Cass. Petitioners criticize plaintiff for saying that he was named in that will and not taking steps to prevent the provisions of the will from becoming effective. Usually a will is not contested until the testator's death. Mr. Nalley, in explaining the reason for his attitude about the matter, said:

"Because I knew that Mr. Pointer had conveyed this property to us and it didn't make any difference how many wills he made. I didn't think it made any difference so I let Mr. Pointer have his way. He was old and childish." Transcript of Testimony, p. 242 (misnumbered 342).

Petitioners call attention to plaintiff's testimony as to the value of the Pointer property. As we read it, plaintiff stated its value. He was not called upon to state whether or not he had or claimed an interest in it. The testimony referred to is as follows:

"Q. Do you know how much Pointer's estate amounts to at this time--how much he has got: A. I can tell you in a minute. (Witness examines a memorandum book.)

"Q. Aside from interest that you have collected? A. Mr. Pointer has got one thousand dollars in a note on the Cook loan and then he drawed out seven hundred and some odd dollars, and it leaves a balance of about seventeen thousand and seven hundred dollars.

"Q. Did you so testify? A. Yes sir, that...