Payne v. Carver

• Decision Date: 13 May 1988
• Citation: 534 So.2d 566
• Parties: Ferris PAYNE and Lora D. Payne v. Marjorie Payne CARVER. 87-78.
• Court: Alabama Supreme Court

Page 566

534 So.2d 566

Ferris PAYNE and Lora D. Payne v. Marjorie Payne CARVER.

87-78.

Supreme Court of Alabama.

May 13, 1988.

On Return to Remand Sept. 30, 1988.

William H. Mills of Redden, Mills & Clark, Birmingham, for appellants.

Bryant A. Whitmire, Jr., Birmingham, for appellee.

JONES, Justice.

Because we remand this cause to the trial court for clarification of its order and judgment, we set out only those facts necessary to our order.

The plaintiffs, Ferris Payne and Lora D. Payne, filed a declaratory judgment action to quiet title to 40 acres of land alleged by the plaintiffs to have been deeded to Ferris by his father and mother. The trial court, sitting without a jury, held that there had not been a legally effective delivery of the deed upon which the plaintiffs relied, and that the defendant, Ferris's sister Marjorie Payne Carver, was "a tenant in common owning an undivided one-sixth interest in and to the [subject] property."

When reviewing the judgment of a trial court entered after a non-jury trial, an appellate court in this state will not alter the findings or reverse the judgment of the trial court unless the reviewing court finds the judgment to be plainly and palpably wrong. First Alabama Bank of Montgomery v. Adams, 382 So.2d 1104 (Ala.1980); and Menefee v. Lowery, 375 So.2d 793 (Ala.1979). Our cases specifically denote as reversible error in these cases both an erroneous application of the law to the facts of the case and a judgment that is contrary to the great weight of the evidence. Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); Kelly v. Smith, 454 So.2d 1315 (Ala.1984); and Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979).

Here, we are asked to review the judgment of a trial court that is based upon findings set out in a lengthy and detailed order. We can not say, however, whether the trial court was or was not correct in its application of the law to the evidence proffered by the parties or whether the judgment entered by the trial court is against the great weight of the evidence.

In its original order, the trial court found, as facts, that the deed was executed by Bart and Lucy Payne, Ferris's parents, at the office of a notary public, and that

"[a]fter the deed was executed, it was given to Lucy Payne who put it in one of the drawers of a buffet where she kept other important papers for her husband. The deed was kept in a locked drawer. Lucy Payne had a key and Ferris Payne had a key to the drawer."

In a post-judgment motion, the plaintiffs asked that the foregoing statements be deleted and that statements supplied in the motion be substituted therefor. The trial court denied the plaintiffs' motion, except for a slight amendment:

"Ferris Payne testified that his father, Bart Payne, then handed the deed to him and he in turn handed it to his mother, Lucy Payne, and asked her to put it up or keep it. Lucy Payne then put it in one of the drawers of a buffet where she kept other important papers for her husband. The deed was kept in a locked drawer. Lucy Payne had a key and Ferris Payne had a key to the drawer." (Emphasis supplied.)

It is impossible to ascertain, from a reading of the trial court's order, whether the testimony of Ferris Payne (that he accepted the deed from his father and then gave the deed to his mother for safekeeping) was accepted or rejected by the trial court. Indeed, while the trial court reaches the conclusion that there was no "legally effective delivery of the deed," we can not determine from the order whether that conclusion was based on the trial court's rejection of Ferris's testimony as untrue; whether the judgment was based on an acceptance of Ferris's testimony as true but as being outweighed by other evidence tending to prove lack of delivery; or whether the judgment was based on the trial court's determination that the testimony of Ferris, even if believed, was insufficient as a matter of law to establish delivery.

Therefore, because we are unable to determine the basis for the findings set out in the trial court's order or for the judgment of lack of delivery of the deed, we remand this cause to the trial court for the entry of an order consistent with this opinion.

REMANDED WITH INSTRUCTIONS.

SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.

On return to Remand

JONES, Justice.

This case is before us for the second time. In the first appeal, Payne v. Carver, 534 So.2d 566 (Ala.1988), we held that we were "unable to determine the basis for the findings set out in the trial court's order or for the judgment of lack of delivery of the deed" and we remanded the cause to the trial court for the entry of an order consistent with our opinion.

The Trial Court's Order On Remand

On June 3, 1988, the trial court filed an "ORDER CLARIFYING [ITS] ORDER AND JUDGMENT PURSUANT TO INSTRUCTIONS FROM THE SUPREME COURT OF ALABAMA," in which it wrote:

"This Court finds that there was not an unconditional delivery of the deed by Bart Payne to Ferris Payne. Therefore, the testimony of Ferris Payne that his father handed the deed to him and he in turn handed it to his mother, Lucy Payne, is either incorrect or incomplete. This Court finds from the evidence presented that the deed was either not delivered to Ferris Payne as he testified, or, if it was delivered to him, it was delivered on the condition that he return it to Lucy Payne and that she and her husband would retain possession and control over it by keeping it locked in the drawer of a buffet in their home.

"This Court finds that the undisputed evidence is consistent with this holding and conclusion.

"First, this Court considered the fact that Bart and Lucy Payne, on December 31, 1968 (eleven years after the 1957 deed to Ferris Payne), executed a deed conveying a right-of-way across the [disputed] property to Jefferson County as evidence that Bart Payne still considered himself the owner in fee simple of the [disputed] property at that time.

"This Court also considered the fact that after Bart Payne suffered a stroke and became seriously ill, Ferris Payne, the grantee, and Lucy Payne, the mother and one of the grantors, rented a safety deposit box from the First National Bank of Jasper in both their names and placed the deed in that box. Ferris Payne still did not record the deed.

"However, on August 8, 1975, the very day that Bart Payne died, the deed was taken from the safety deposit box at 1:05 p.m. and recorded at 3:01 p.m.

"The vault access records of the First National Bank of Jasper indicated the signatures of both Ferris Payne and his mother, Lucy Payne, at the time of the visit at 1:05 p.m. on August 8, 1975. This Court finds from these facts that both Ferris Payne and his mother, Lucy Payne, visited the box in order to remove the deed.

"This Court further finds from the evidence that the testimony of Ferris, even if believed, is insufficient as a matter of law in this instance to establish delivery in view of the evidence supporting a finding and conclusion that Bart and Lucy Payne did not intend to part with control over the deed until Bart Payne's death."

Decision

It is from this judgment--that there was no effective or valid delivery of the deed from Bart Payne to Ferris Payne--that the instant appeal is brought. We reverse and remand.

We will not disturb the judgment of the trial court in a non-jury trial unless that judgment is clearly wrong or unjust or is unsupported by the evidence. CRW, Inc. v. Twin Lakes Property Owners Ass'n, Inc., 521 So.2d 939 (Ala.1988). However, "this rule has never precluded this Court from reversing a case where the trial court erroneously applies the principles of law involved." Borland v. Sanders Lead Co., 369 So.2d 523, 526 (Ala.1979). It is our opinion that the trial court has misapplied the law in this case.

In support of its conclusion that the deed was either not delivered to Ferris Payne or that it was delivered to him on the condition that he return it to the custody and control of the grantors, the trial court refers to specific facts it found from the evidence. We will consider each separately.

First, the trial court found that the deed of an easement across the subject property from Bart and Lucy Payne to Jefferson County, after the execution of the 1957 deed to Ferris, was proof that Bart Payne still considered himself the owner of the property. However, the trial court also held, and the defendant Marjorie Payne Carver does not dispute, that the effect of the language of the deed was to reserve in Bart Payne a life estate in the property (see Stephens v. Stephens, 280 Ala. 312, 193 So.2d 755 (1966)), which conclusion is consistent with a holding both that the deed containing the reservation was effectively delivered to the grantee during the lifetime of the grantor and that the deed took effect at the moment of delivery.

The owner of a life estate does not act in derogation of the rights of the remainderman by granting an easement or right-of-way across the property--an act consistent with the interest reserved by the instant grantors. See, generally, 23 Am.Jur.2d Deeds § 162, pp. 186-87 (1983). Indeed, that a grantor reserves a life estate in the property is evidence "that an immediate conveyance of title was contemplated, on the theory that the reservation indicates an intent that title should immediately vest in the grantee." 23 Am.Jur.2d Deeds § 167, p. 189 (1983).

Another "fact" cited by the trial court is that the deed to Ferris Payne was not recorded until after the death of grantor Bart Payne. It is a familiar rule of law in Alabama, however, that, as between the parties, a deed is valid even though it is not recorded. White v. White, 350 So.2d 326 (Ala.1977); Murphree v. Smith, 291 Ala. 20, 277 So.2d 327 (1973); Watson v. Watson, 283 Ala. 214, 215 So.2d 290 (1968). Further, Ferris testified that despite urging from his father, he had simply neglected to have the deed recorded during his fathe...