Sand v. Sand

• Decision Date: 20 February 1959
• Citation: 321 S.W.2d 234
• Parties: Edward SAND et al., Appellants, v. Louis SAND et al., Appellees.
• Court: Supreme Court of Kentucky

Page 234

321 S.W.2d 234

Edward SAND et al., Appellants, v. Louis SAND et al., Appellees.

Court of Appeals of Kentucky.

Feb. 20, 1959.

Albert H. Root, Wm. J. Heringer, Newport, for appellants.

Wm. R. Seidenfaden, Newport, for appellees.

STANLEY, Commissioner.

This action to quiet title is determinable by a decision whether an instrument in the form of a deed shall be construed as intending to pass title to the property presently or posthumously. A preliminary question is whether the court should have permitted introduction of parol evidence of the circumstances and conditions surrounding the execution of the instrument.

The instrument is a printed commercial form of a deed with the blanks filled by a typewriter. It was executed by Mrs. Anna Sand to her two sons, Louis and Max Sand, with the right of survivorship. The maker's signature was witnessed by a deputy county court clerk, and the instrument was acknowledged by Mrs. Sand before another deputy clerk on January 10, 1933. It was promptly recorded. The property consists of five tracts of land in Campbell County.

Immediately following the printed habendum and covenant of warranty appears this typed stipulation:

'It is mutually agreed between the said parties, hereto as a part of the consideration herein the said grantees, Louis Sand and Max Sand, will pay to the following named, Adolph Sand, Edward Sand, Freda Sand, Martha Lauer (nee Sand), Oscar Sand, and Michael Sand, each the sum of seven hundred fifty ($750.00) dollars, said amount to be paid within one year after the death of the grantor, [sic] said deed shall become effective, upon the death of said grantor, and each of said named children of the grantor named to receive said amounts shall have power to cancel the amounts due them, and when so cancelled shall make the title complete in the names of the grantees herein.'

The plaintiffs claimed title as tenants in common with the two defendants under the will of their mother, Anna Sand, which was dated June 13, 1929, and probated June 18, 1952. Mrs. Sand devised all her estate equally among her eight children, except a special bequest of a thousand dollars to Max 'for services rendered.'

The plaintiffs say they had no actual knowledge of the deed in controversy until after their mother's death. A general warranty deed to the same property had been executed by the eight children, described as heirs of Michael Sand, deceased, to their mother, Anna Sand, which is dated May 20, 1929, about three weeks before the will was executed. The deed in controversy, it will be noticed, was executed about four years later and had been recorded for more than nineteen years before the mother died.

The circuit court construed the instrument to be understandable and enforceable as a valid deed of conveyance. A summary judgment was rendered in favor of the grantees and their title quieted. It was, however, and adjudged that each of the six plaintiffs had a lien on the property in the sum of $1,000 each. We have no explanation of this figure, but no question is raised about the difference between it and the sum stipulated in the deed to be paid them.

The appellants contend that because of the added provision, the instrument cannot be regarded as a deed conveying a present estate. They maintain that it is ambulatory and was intended to postpone transfer of title until after the maker's death, and therefore is void because not executed with the formalities required of a will.

While the record does not contain any motion by the plaintiffs that oral testimony be heard to show the facts and circumstances surrounding the execution of the deed, the trial court's opinion recites that the right to introduce extrinsic evidence was considered and denied.

In addition to the claim of general obscurity and ambiguity, the appellants point to the reference to an agreement or understanding between the parties presumably made simultaneously with the execution of the deed. The typed provision begins, 'It is mutually agreed.' This cannot be taken out of context. It is clearly expressed that the agreement was that the grantees should pay their brothers and sisters $750 each within a year after the mother's death.

In the original instrument the word 'when' appears to have been typed between the words 'grantee' and 'said deed' and then incompletely erased and a dim pencil line run through it. In reproducing the provision, we have run a line through the word 'when.' We attach no significance to this word, for it appears to have been a clerical error and was taken out. It really added nothing to the provision. The word will be presumed to have been erased or taken out before or at the time of the execution and delivery of the instrument. Pike County v. Sowards, 147 Ky. 37, 143 S.W. 745. Moreover, it...