Payne v. Hallgarth

• Decision Date: 13 August 1898
• Parties: PAYNE et al. v. HALLGARTH et al.
• Court: Oregon Supreme Court

54 P. 162

33 Or. 430

PAYNE et al. v. HALLGARTH et al.

Supreme Court of Oregon

August 13, 1898

Appeal from circuit court, Union county; Robert Eakin, Judge.

Suit by Mary E. Payne, Sarah Gunnell, Ann Thornton, Joseph Hallgarth and William Hallgarth against Jane Hallgarth and others. From a decree for plaintiffs, defendants appeal. Reversed.

T.H Crawford and J.F. Baker, for appellants.

J.L Austin, for respondents.

WOLVERTON J.

The plaintiffs, Mary E. Payne, Sarah Gunnell, Ann Thornton Joseph Hallgarth, and William Hallgarth, and the defendant Charles Hallgarth, are the brothers and sisters and only heirs of Sibrit Hallgarth, who died intestate in Union county, Or., on November 21, 1893. On the 21st of October preceding his demise he executed and duly acknowledged a certain deed purporting to convey the premises in dispute to the defendant Jane Hallgarth, and the only question involved in this suit is whether there was a delivery of such deed to the grantee to take effect presently, for it is not contended that it could have had effect otherwise. The evidence adduced at the trial is not voluminous, and we will state the substance of it.

Dr. Brownell, the family physician, testifies that on October 21, 1893, he was in attendance upon the deceased at his home, and there met Dr. Honan, of La Grande, in consultation; that he was present when the deed was signed and witnessed, and heard the discussion preliminary thereto; that the deceased asked Dr. Honan what his chances were for getting well, and was told he would probably live a month or so, but it was thought he could not possibly get well, and that if he had any business matters to arrange he had better have them attended to right away. Witness, further testifying, says: "I told him I thought it would be better to fix matters up, and if he got well he could change it. *** He told me that he didn't owe the people in the East anything; that he came west with but very little property, and earned all his money here in the West, and earned it by hard work, and that the property should go to Jane's children; that he loved the children, and he wanted them to have the property when he died. He seemed to be uneasy about the way to dispose of the property, so that it wouldn't tie Charlie up so that he couldn't do business, and asked what he had better do; how he had better do with it. I told him I guessed he had better deed it over to the children. Then he said he couldn't do that very well, but would deed it over to Charlie. And then finally said, 'No; he wouldn't trust Charlie, but would deed it over to Jane, and Jane could give it to the children then as they came of age.' *** I proposed a will, and he said that if he made out a will that it would tie Charlie up so he couldn't do business, and wanted the matter fixed up so that Charlie could carry on all the business as he had done before. *** We told Sib. that if he got well he could destroy the deed, and if he did not get well it should be given to Jane and taken care of." On cross-examination he says, in substance: The deed was to be recorded after Sib. died, and it was not to be recorded unless he did die as a result of the sickness for which he was being treated. He was to keep it, and if he died they were to record it, and if he did not die he was to do as he chose with it. He dictated what should be done. They proposed several ways, and he dictated his own way.

Jane Hallgarth testifies that she was living in the same house with deceased at the time of his death; that his last sickness continued for a year or little over, but he was confined to his room only about the last month; that she saw the deceased sign the deed, and that he handed it to her shortly thereafter; that Marsh took the deed, and when it was returned, about a couple of hours afterwards, deceased handed it to her. She further testifies as follows: "He wanted me to have his land. He said he deeded me his land because I had been good to him, and kind,--took care of him in his sickness. Q. Did he say anything about wanting it to go to your children? A. Yes, sir; at his death. Q. What did you do with the deed then? A. I handed it back to him. Q. What did he do with it then? A. He put it under his pillow. *** Saw the deed the next day. It had been put away in a trunk. He gave it to my husband to put away for me. Q. Why did you wait until after Sib.'s death before you sent it down to have it recorded? A. Because I didn't want the land if he got well. I wanted him to have his own property. Q. Was that the arrangement, that if he got well he was to keep it? A. Certainly, he was to keep it. Q. And if he got well, and asked you for the deed, you would have given it back to him, would you not? A. Yes, sir; I would have given it back. Q. I will ask you if when you received that deed you took it with the understanding that it was to take effect only if Sib. Hallgarth died? A. Yes. Q. And if he got well he was to have it back again? A. Yes. sir."

C.H. Marsh testifies that one of Charles Hallgarth's boys came to Elgin, and asked him to go down and draw a will for Sib. Hallgarth; that he drew the deed at the request of Sib.; that when he came into the room Hallgarth spoke to him concerning the matter, whether it would be better to make a will or a deed, and explained to him what he wanted to do with his property, and witness told him he thought it would be better to make a deed. Deceased said the matter had been talked over, and asked witness which he thought would be best, and was informed that the deed was preferable, and thereupon a description was procured, and witness drew the deed, and it was signed by deceased in the presence of witness and Dr. Brownell. The substance of the understanding he got from Sib.'s conversation was "that the deed was to be placed in the Farmers' & Traders' Bank, to be put on record if he should die, and, if not, to be returned to him." On being recalled, the following was elicited on cross-examination: "Q. I will ask you, if in your conversation with Sib. Hallgarth about what was the best instrument to carry out his purposes, if you said to him that the deed could be made, and if made to be recorded after his death he could keep possession of the land until his death, and could control it by being able to recall the deed and destroy it, in case he got well. A. I did. That was his understanding, or, at least, what his questions to me and answers to me indicated. Q. And the reason that you recommended it in that way? A. Yes, sir. Q. I will ask you if in that conversation he said to you that he wanted Jane and her children to have the property in case he died, but wanted to keep control of it if he got well. A. The children, so far as I remember, were not mentioned in there. He wanted the real estate to go to her. He might have mentioned for the benefit of the children, or something that way, but the real estate was to go to her. I don't remember that he said that he could recall or destroy the deed, or anything that way, or that he would keep possession; but, as near as I remember, his words were something similar to this: 'I want the property so if I don't die, or if I get well, that I can have it back again.' "

Dr. M.F. Honan testifies "that he was called in consultation with Dr. Brownell; that, after examining his patient, he told him he did not think he could get well, and that he could not live longer than about four weeks; that after dinner he saw Hallgarth privately, who told him he felt under no obligations to his other relatives; that what he had Charlie Hallgarth, his brother, and he had made together, and that he wanted Charlie's children to get the benefit of it. A deed to Charlie, then a deed of trust to him, were discussed, but he finally concluded to deed it to Charlie's wife, believing that he could trust a mother to take proper care of her children. When this was concluded, Hallgarth called Charlie in, and told him that he had made up his mind what he was going to do, and instructed him to 'have Marsh come up prepared to make a deed.' " Witness, continuing, says: "The understanding with Sib. was--I reasoned with him in this way: I says, 'After you make this deed out, put it up in escrow in the bank.' Q. You say that you suggested the deed should be sent to the bank or some place in La Grande, to be left in escrow? A. Yes. Q. Did he express his intention of doing so? A. No; he didn't express any intentions of doing anything particularly. He simply wanted to talk to me as a friend about the matter, and see what suggestions I could make to him, and he appeared to think that a suggestion of a deed to Mrs. Hallgarth, and holding the deed himself until after his death, or placing it where it could not be placed on record until after his death, was the very thing he was going to do. Q. That was the plan that was discussed between you and him? A. Yes, sir. Q. This matter of placing the deed so that it could not be put on record,--I presume his intention in that was so that in the possible event of his getting well that he could recall the deed? A. So that he could recall the deed."

John Ross, being called as a witness, says that he was a nurse in attendance upon Sibrit Hallgarth in his sickness; that when the deed was witnessed Marsh took it to see if it was correct, and when it came back "Sib." handed the deed to Charlie, and said, "Charlie, take this, and put it away, and take care of it."

Charles Hallgarth testifies that Sibrit was his brother; that they were partners in business, and that Sib. had never been married; that he had made his home with witness' family ever since 1868, and that he desired all of his property to go to witness' wife and children; that they had been kind to him, and for this reason he wanted...