Sasseen v. Farmer

• Decision Date: 05 March 1918
• Citation: 201 S.W. 39,179 Ky. 632
• Parties: SASSEEN v. FARMER ET AL.
• Court: Kentucky Court of Appeals

201 S.W. 39

179 Ky. 632

SASSEEN v. FARMER ET AL.

Court of Appeals of Kentucky.

March 5, 1918

Appeal from Circuit Court, Caldwell County.

Action by Sallie Sasseen against Mabel Farmer and others. From an adverse judgment, plaintiff appeals. Reversed and remanded with directions.

Miller & Morse, of Princeton, for appellant.

L. B Alexander, of Paducah, for appellee Farmer.

Speight & Dean, of Mayfield, for appellees Stone heirs.

CLARKE J.

On January 4, 1909, Henry C. Stone signed and acknowledged before the county clerk of Caldwell county a deed conveying to his wife, Lillie F. Stone, a house and lot in Princeton Ky. He did not then have this deed recorded, and appellees insist there is no positive proof that he ever delivered it to his wife. He and his wife continued to occupy the premises described in the deed as their home until her death, on November 24, 1914, during which time he listed the property for taxation in his own name, and presumably paid the taxes thereon, but, on several occasions, he said to different persons that the property belonged to his wife, and she, upon several occasions, had in her possession a small tin box which belonged to him, and in which he at least kept his valuable papers. Once when he was quite ill, he said to his wife, in the presence of one of the witnesses:

"I am still alive. If I had died last night though, you would have been all right. You have got the papers here to show that you have got plenty to live on if I had died last night."

The wife then had the little tin box in which he kept his valuable papers; and, at that time, practically the only property owned by either of them was the house and lot described in the deed he had executed to his wife.

Henry C. Stone and his wife, Lillie F.

Stone, had but one child, a son, who died childless prior to the death of his mother; and Lillie F. Stone, from money given her by her parents, furnished part at least of the funds used in the purchase of the property involved.

On April 9, 1915, Henry C. Stone conveyed this same property to Nola Whiteside in consideration of her agreement to nurse and care for him so long as he lived. Four days later, Nola Whiteside reconveyed the property to Stone in consideration of her release of the obligation to nurse and care for him recited in the deed to her. A short time after this, Stone married again, and in November, 1915, his second wife, Mattie C. Stone, sued him for divorce and alimony, attaching the property above referred to. On December 24, 1915, Stone had recorded the deed which, on January 4, 1909, he had executed to his first wife. On March 1, 1916, Stone executed a will, devising this same property to Mabel Farmer, and upon the same day committed suicide. On January 15, 1916, Mattie C. Stone, the second wife, conveyed to Sallie Sasseen, the mother of Lillie F. Stone, by quitclaim deed, whatever interest she owned in this property.

Sallie Sasseen, claiming to have inherited this property as the only heir of her daughter, Lillie F. Stone, and to be in possession thereof, instituted this action, under section 11, Kentucky Statutes, to quiet her title thereto, making Mabel Farmer, the devisee under the will of Henry C. Stone, Dr. I. Z. Barbour, administrator with will annexed of Henry C. Stone, and the heirs of Henry C. Stone parties defendant. Each of the defendants filed separate answers, denying both the title and possession of plaintiff and asserting title to the property. The claim of each defendant of title to the property was denied by plaintiff in reply to the separate answers. After trial, the chancellor dismissed the petition, canceled the deed from Henry C. Stone to Lillie F. Stone, adjudged that Henry C. Stone was the owner of the property at the time of his death, ordered it sold to pay his debts and costs of administration, that Mattie C. Stone was entitled to dower in the proceeds of sale of the property, and withheld judgment as to whether Mabel Farmer as devisee or the heirs of Henry C. Stone were entitled to the balance of the funds derived from the sale of the property. From that judgment, plaintiff appeals.

1. Appellees insist, first, that as plaintiff began this suit to quiet title and alleged, as she must have done, that she had both title and possession, and failing to prove possession, she cannot complain of the judgment dismissing her petition; and this position, assuming plaintiff failed as alleged to prove possession or title, would have been correct had the judgment gone no further than to dismiss plaintiff's petition. But, as defendants not only traversed the petition, but in addition alleged title in themselves and sought and procured a judgment, not only on the question of quieting plaintiff's title, but upon the question of their own title under Henry C. Stone, including the cancellation of plaintiff's deed from him, it will be seen the parties and the chancellor treated the suit as an action to try the title to the property among all the parties, rather than simply as an action by plaintiff to quiet title; and we might therefore so consider it. However, the question of possession depends entirely upon the question of title, as Mrs. Mattie C. Stone, who was actually in possession, was holding under contract as tenant of plaintiff if she had title, and, if plaintiff's title is upheld, she had both title and possession and was entitled to the specific relief sought.

2. Counsel for plaintiff insist (1) that an actual delivery of the deed to Lillie F. Stone by Henry C. Stone during her lifetime is proven by circumstantial evidence; and (2) that such a delivery is presumed from the conceded facts that Stone signed, acknowledged, and had the deed recorded.

Defendants deny actual or any delivery was proven, and urge that although Stone signed and acknowledged the deed during the lifetime of his wife, Lillie, and caused it to be recorded after her death, since she was dead when the deed was recorded, there can be no presumption of a delivery to her from such facts. It is, of course, necessary, in order to render a deed effective, that there should have been a delivery by the grantor and an acceptance by the grantee, but a manual delivery by the grantor is not necessary to effect a legal delivery, nor is it necessary to a legal acceptance that the grantee have actual possession of the deed. Shoptaw v. Ridgeway, 60 S.W. 723, 22 Ky. Law Rep. 1495; Bunnell v. Bunnell, 111 Ky. 566, 64 S.W. 420, 65 S.W. 607, 23 Ky. Law Rep. 800, 1101; Interstate Investment Co. v. Bailey, 93 S.W. 578, 29 Ky. Law Rep. 468; Washburn's...