Showalter v. Spangle

• Citation: 160 P. 1042,93 Wash. 326
• Decision Date: 13 November 1916
• Docket Number: 13478.
• Court: United States State Supreme Court of Washington
• Parties: SHOWALTER v. SPANGLE et ux.

160 P. 1042

93 Wash. 326

SHOWALTER v. SPANGLE et ux.

No. 13478.

Supreme Court of Washington

November 13, 1916

Department 1. Appeal from Superior Court, Spokane County; H. L. Kennan Judge.

Suit by G. W. Showalter against John F. Spangle and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

Danson Williams & Danson and George D. Lantz, all of Spokane, for appellants.

Davis &amp Heil, of Spokane, for respondent.

ELLIS J.

Action to quiet title to real estate. The facts are as follows Plaintiff is the son of Mrs. Sarah Jane Showalter. Mrs. Showalter and defendant, Mrs. Mary Alma Spangle, are sisters. They are the only heirs of George W. and Marcella E. Cook. About 1883 George W. Cook acquired title to 2 1/2 lots, and Marcella E. Cook acquired title to another 2 1/2 lots in the town of Cheney, Wash. In 1888 through the medium of trustees the property standing in his name was deeded to her, thus vesting in her the record title to all of the property. The Cooks resided upon the property the rest of their lives, he dying in 1901, she in 1912. No probate proceedings were ever had upon his estate. Her estate was probated, defendant John F. Spangle acting as administrator, but the real estate in issue was not listed as a part of the estate. On January 18, 1907, Mrs. Cook made a deed of 2 1/2 of the lots in question to defendant Mary Alma Spangle, and another deed of the other 2 1/2 lots to defendant John F. Spangle, but she did not then deliver either of these deeds. She kept them at all times in a tin box, which she kept part of the time in a bank and part of the time at her home. These deeds were found in the box with about $40 in money, certain promissory notes, and her other important papers, when it was opened after her death. She died August 6, 1912, at the Spangle home, where she had gone several weeks previously. The two deeds were placed of record by John F. Spangle on August 22, 1912, the same day of his appointment as administrator. On December 16, 1913, Sarah Jane Showalter executed a deed, conveying to plaintiff an undivided one-half interest in the 4 lots and the 2 half lots in question, plaintiff thus acquiring whatever interest she had therein as an heir of George W. and Marcella E. Cook, her parents. He brought this action to quiet his title to this undivided one-half, further claiming, in any event, an undivided one-fourth through his mother an an heir of George W. Cook. Defendants answered, claiming title to the entire property by virtue of the above-mentioned deeds from Mrs. Cook. By reply plaintiff denied delivery of those deeds. John F. Spangle testified as follows:

'Well, this was some time, two or three weeks I think, after she [Mrs. Cook] was taken sick. I went into the bedroom--always went and talked to her--she says, 'Frank,' she says, 'I am not going to get well.' I says, 'Mother, you don't want to think about that.' * * * I told her then, 'You don't want to think that way,' says I, 'You must remember you are old and cannot, recover as quick as a younger person.' 'Well,' she says, 'I know I ain't going to get well,' she says, 'and I want you to straighten up my business.' And she told me the box, what the contents was, and she spoke about some insurance policies, and she says, 'There is a box in there with nearly $40 in.' She says, 'There is two deeds there, one for you and one for Mary; and all of the papers are in there.' And just then the nurse came and she quit talking about it. Q. And then what happened? A. Well, there was nothing more said in regard to it at that time. Q. Where was the box at the time you had the talk with her and she said she wanted you to get the box? A. Right in the closet, about six feet from the bed. Q. And did she deliver it to you? A. Yes, sir. Q. And from then did you have a key also to the box? A. Yes, sir. Q. And what did she say about the deeds to you and to Mary, if anything? A. Well, she said there was two deeds in there, one for me and one for Mary. Q. Tell you to take them? A. Yes; told me to take the box.'

This was objected to on the ground that it related to a transaction with a deceased person, and was inadmissible as against plaintiff, who claimed title through such person. Counsel for defendants then said:

'Your honor cannot consider this testimony in favor of Mr. Spangle, but you can consider it in favor of Mrs. Spangle.'

The testimony was then admitted. On cross-examination he testified:

'A. She told me about the box, what was in the box, and her papers and about these deeds, and she told about the box containing nearly $40. She says, 'My papers are all in there.' And just then the nurse came in, and she quit talking about it at that time. Q. She said all of her papers were in there? A. I am not sure whether she said 'all of her papers.' Q. Did you find any of her papers anywhere except in this box? A. She has a little trunk. I don't think there were any papers to amount to anything. The main papers were right in this box. * * * Q. Now, if she had wanted you to return that box at any time before her death, you would have returned it, would you not? A. If she would have called for it, I certainly would. Q. Delivered it to her? A. Certainly. Q. Was there any one else in the room at the time that she delivered this box to you? A. No; not right at that time. The nurse came in just the time she told me to take the box. Q. Now, at the time she gave you the box, she told you that she wanted you to take care of her affairs? A. She told me to take the box; that she wanted me to straighten up her affairs or her estate. Of course, I don't remember just how it was. Anyway she wanted me to settle up her business. * * *'

He did not take the box at that time, but did a few days later, as to which transaction, over the same objection, Mrs. Spangle was permitted to testify as follows:

'My mother asked Mr. Spangle if he had taken this box. Q. What did he say? A. He said no; that he had not. Q. And then what was done and said? A. After he came in the door he asked me to get the box. Q. In her presence? A. In her presence. I got the box. I gave it to him. He took it, and carried it to the post office then.'

There was evidence that Mrs. Cook had told several other persons that she had made these deeds, and intended that defendants should have the property. A brother of plaintiff testified that in 1910 Mrs. Cook spoke to him of these deeds, said that she had fully determined that his father, whom she did not like, should never have the benefit of any of her property, but now that he was dead she had been 'thinking it over a great deal,' and, 'I may change that yet.'

The court found the facts substantially as we have stated them, and, concluding that the deeds in question had never been delivered, entered judgment quieting title to an undivided one-half of the lots in plaintiff, and awarded him his costs. Defendants have appealed.

Two questions are presented: (1) Were all of these lots Mrs. Cook's separate property? (2) Was there a delivery of either of the deeds sufficient to pass title to either of the appellants? The conclusion which we have reached on the second question makes it unnecessary to discuss the first. We shall proceed at once to the question of delivery.

Respondent contends that there was no evidence of a delivery of either of the deeds, in that the testimony of neither appellant as to transactions which it is claimed constituted the delivery was admissible under the statute (Rem. & Bal. Code, § 1211), because both of them were parties to the record and each testified touching a conversation or transaction had by the witness with the deceased under whom respondent claims. Appellants concede that neither was competent to testify in his or her own behalf, but insist that each was competent to testify in behalf of the other. The latter view seems to us the sound one. The prohibition of the statute is against a party in interest or to the record testifying 'in his own behalf.' Appellants claim title to distinct properties through separate deeds of gift. They might have been sued separately, in which case unquestionably either would have been competent as a witness in behalf of the other, since the other's separate property alone would have been involved. Foster v. Murphy, 76 Neb. 576, 107 N.W. 843; Hiskett v. Bozarth, 75 Neb. 70, 105 N.W. 990; Helsabeck v. Doub, 167 N.C. 205, 83 S.E. 241. In states where the common-law right of dower exists, a wife, in such a case as this, cannot testify in behalf of her husband. Ayres v. Short, 142 Mich. 501, 105 N.W. 1115. But that is because her inchoate right of dower, unlike the husband's curtesy, is a present legal interest, indefeasible by any act of the husband. Wylie v. Charlton, 43 Neb. 840, 62 N.W. 220. In the case here the interest of each spouse in the other's separate property was certainly no greater because of their being joined in the same action than if they had been sued separately. In neither case was it greater than that of a prospective heir, and we have held that, since the living have no heirs, the interest of the ancestor does not disqualify the heir apparent. In re Sloan's Estate, 50 Wash. 86, 96 P. 684, 17 L. R. A. (N. S.) 960.

Assuming therefore, that each appellant was competent to testify on behalf of the other, but not on his or her own behalf, was the evidence sufficient to show a delivery of either deed? It is essential to the delivery of a deed that there be a giving by the grantor and a receiving by the grantee with a mutual intention to pass a present title from the one to the other. It may be made through the hands of an agent, and it may be accepted through the hands of an agent, but there must be a mutual intention presently to pass the title. This mutual intention is...