Nolan v. Mathis

• Decision Date: 02 October 1928
• Docket Number: Case Number: 18703
• Citation: 1928 OK 586,134 Okla. 70,272 P. 857
• Parties: NOLAN v. MATHIS, Adm'r, et al.
• Court: Oklahoma Supreme Court

1928 OK 586

272 P. 857

134 Okla. 70

NOLAN v. MATHIS, Adm'r, et al.

Case Number: 18703

Supreme Court of Oklahoma

Decided: October 2, 1928

Syllabus

¶0 1. Trial--Demurrer to Evidence--Effect in Equity Case. We have no statutory provision for a demurrer to the evidence in an equity case in this state, but it is a practice long recognized and followed in Kansas and in this jurisdiction, and such demurrer to the evidence will be treated by the court as a motion by defendant for judgment for defendant upon the evidence as produced by the plaintiff.

2. Same--Determination. When a trial is had before a court without a jury, the court must eventually weigh the testimony, and there is no reason why it should not do so at the earliest possible time when the rights of plaintiff will not be cut off or impaired by its so doing, and when the plaintiff, in an equity case, has introduced all his proof and rested, no rights of his will be impaired if the court then, upon demurrer to the evidence by defendant, determines what has been proven.

3. Same--Quieting Title--Plaintiff's Evidence Held Insufficient to Establish Parol Gift of Real Estate. In an action by M. to quiet title to certain lands, where he alleges that his brother J. (the owner of the title), shortly before his death, orally gave said lands to M., in consideration of kinship, past kindness, and attention during sickness, and that under such gift M. took possession of and made permanent improvements on the premises, but where, in fact, such improvements were negligible, and where there is evidence tending to show that M., before, at the time of, and after the alleged gift, was occupying the premises as a tenant of J., and where M., after death of J., sued his administrator for a tenant's share of the crop, alleging ownership of the property in J. and that M. held same as a tenant of J., and where some proof in the case at bar tended to show that J. declared he would deed said premises to M., and other proof that he intended willing same to M., but that he did neither; and where the proof showed that J. was a shrewd and intelligent business man and knew how lands should be conveyed, and that he died after a long illness, during which he retained his mental faculties, the sustaining of a demurrer to the evidence of plaintiff is not error.

4. Gifts--Parol Gift of Real Estate--Proof Required. To sustain a parol gift of real estate the evidence in support thereof must go further than a mere preponderance; the same must be clear, explicit, and convincing as to every element necessary to constitute such a valid gift.

5. Appeal and Error--Review of Equity Case--When Affirmed. Where, in an action of purely equitable cognizance, tried to the court without the intervention of a jury, the finding of the court is not against the clear weight of the evidence and comes within the principles of equity, the decision of the lower court should be affirmed.

6. Same--Judgment for Defendants in Action to Quiet Title Sustained. Evidence weighed and examined; held, the judgment of the trial court is sustained and is not against the clear weight thereof.

John J. Carney, W. H. C. Taylor, J.

T. Johnson, and Walter Marlin, for plaintiff in error.

Drennan & Drennan and Sam P. Ridings, for defendants in error.

BENNETT, C.

¶1 John Nolan, about 60 years old, died intestate at his home in Lamont, Okla., May 19, 1924, leaving as his only heirs at law certain brothers and sisters, parties to this suit. Harry W. Mathis is administrator of said decedent. Decedent left a considerable estate composed of several farms, a grain elevator, and $ 8 000 or $ 10,000 worth of personal property; the entire estate would perhaps aggregate $ 50,000 or $ 60,000. Immediately following the death of said decedent, his three brothers, Michael, Patrick, and Thomas, took possession of and appropriated to their own use about $ 7,000 worth of personal property and practically all of the real estate belonging to said decedent under the claim that decedent had made an oral gift to each of said three brothers of certain farms, and also all of the personal property. Thereafter each of said brothers brought suit against the other heirs of John Nolan, deceased, and his administrator, to quiet title in the land claimed by him. The administrator brought suit against said three brothers for conversion of personal property of the estate and recovered judgment for more than $ 7,000. Suit was brought against the administrator by Michael Nolan for $ 20,000, damages for interfering with the possession of the real estate so claimed by him, and for more than $ 2,000, the tenant's share of the crop raised on said premises for the year 1924, and alleged to have been wrongfully taken by the administrator.

¶2 John Nolan was an alert, shrewd, active business man, and accumulated by his own efforts his fortune, and all of the brothers and sisters of decedent lived round about him, and there is no proof that there was any enmity or ill-will between them and decedent. In 1922 John was stricken with paralysis, and for two or three months was unable to take care of himself, but later was able to overlook his farms and take an active interest therein, though he was less active than formerly. In December, 1923, he went to Marlin, Tex., and later to Mineral Wells, Tex., for his health, but remained only a short time. During decedent's sickness he was given such attention as he required, principally by Michael Nolan and Amelia, his youngest sister. Some attention was given him also by his other two brothers and perhaps others of the family. Michael gave attention to the management of some of decedent's farms during 1923. Michael lived only a short distance from decedent, and neither Michael nor John had ever married. While at Mineral Wells in February, 1924, John suffered another paralytic stroke, and upon request said brothers and said sister attended him there. He was not entirely helpless at this time, but was able to walk about with assistance, and a short time later he was carried to his home in Lamont where he died within about two months. For a few weeks before his death he required considerable attention as he was not able to look after himself. These brothers gave him such attention assisted by Amelia and nurses.

¶3 Soon after John's death the three brothers approached their sisters to ascertain if they would be willing to carry out the will of decedent. This approach was upon various occasions and under different circumstances, and received answer, in substance, that if decedent had made any will the same should be disclosed to them, so that they might determine for themselves their course, and that if it were a legal will they would have to be bound by it. So far as the proof goes, these three brothers, or some one of them, were with John most of the time from the time of his stroke in Mineral Wells until his death. The proof does not indicate that any of the other heirs had any knowledge of the alleged gift of real or personal estate made by decedent to the three brothers until the institution of several suits based thereon. It thus appears that this estate is subject to exhaustive, if not exhausting, litigation; and the case at bar is the suit of Michael against his other brothers and sisters to enforce the oral gift claimed from decedent and to quiet title in plaintiff as against said brothers and sisters and the administrator of said estate as to the real estate known as the Blaisdell and the Mabry farms, which lands are of considerable value, one of said tracts being appraised at $ 14,000, but subject to a mortgage of $ 5,000.

¶4 The original petition was in the usual form in actions to quiet title, and alleged as the basis of title of plaintiff that in consideration of blood relationship, close business association and an agreement between Michael and John, made years before, the survivor of them should take all the property of the one dying first, and also by reason of the fact that Michael had attended him during his illness; that John, in February, 1924, and again in April, of the same year, when in dire physical distress and apprehensive of death, orally gave to Michael the two said farms, and also the personal property hereinbefore mentioned; and that Michael accepted such gifts, and thereafter, on April 15, 1924, entered upon said real property and made permanent improvements thereon in reliance upon said gift, and on which account he asked that title be declared and quieted in him. After a demurrer was filed to the petition and sustained, a first amended petition was filed substantially the same in form and substance as the first, but adding that one of said farms was purchased with partnership money which belonged jointly and equally to John and Michael. Later a second amended petition was filed in deference to a successful demurrer interposed as to the first amended petition. The second amended petition followed in substance the original and first amended petitions, but added to his charging paragraph therein:

"That this plaintiff, therefore, claims an equitable interest in said real estate by reason both as a gift and the fact that he was a joint and equal owner of the money used to purchase said real estate."

¶5 The answer of defendants, after general denial, set out the relationship of parties, ownership of the real estate in John Nolan before his death, the administration on the estate, and followed with an allegation that these three brothers had conspired and fraudulently confederated together to absorb and personally take over the entire estate, both real and personal of John Nolan, deceased, and to claim same either by gift, purchase, or under a resulting trust, just in such manner as best suited their unlawful designs, and that each would bring suit to quiet title to the property so taken by him, and that, acting under this arrangement, they brought the suits, took possession of the property, converted the personal...