Singleton v. Kelly

• Decision Date: 22 December 1922
• Docket Number: 3870
• Citation: 212 P. 63,61 Utah 277
• Court: Utah Supreme Court
• Parties: SINGLETON v. KELLY et al

212 P. 63

61 Utah 277

SINGLETON v. KELLY et al

No. 3870

Supreme Court of Utah

December 22, 1922

Petition for rehearing denied February 6, 1923.

Appeal from District Court, Fourth District, Utah County; Elias Hansen, Judge.

Suit by Thomas Singleton, as administrator of the estate of Wm. E Kelly, deceased, against Thomas S. Kelly and another. From a decree for plaintiff, defendants appeal.

AFFIRMED.

P. C Evans and Ray T. Elsmore, both of Salt Lake City, for appellants.

O. W. Moyle, of Salt Lake City, for respondent.

WEBER, J. CORFMAN, P. J., and WEBER, GIDEON, and FRICK, JJ., concur.

OPINION

WEBER, J.

Plaintiff is the administrator of the estate of Wm. E. Kelly, who died intestate in July, 1920. It is alleged in the complaint that at the time of his death and for many years prior thereto he was the owner and in possession of about 30 acres of land in Utah county. It is further alleged that on July 29, 1920, after the death of said deceased, the defendants caused to be recorded a certain deed purporting to be made by Wm. E. Kelly to defendant Thomas S. Kelly, conveying to the latter the property described in the complaint, and that such deed was never delivered to defendants, or either of them, and never became a valid deed. The answer admits that defendants claim to be the owners of the land by reason of the deed referred to in the complaint, but denies that it was not delivered, and also alleges that in 1914 the deceased, Wm. E. Kelly, conveyed the land in dispute to Thomas S. Kelly by warranty deed. The district court found the issues in favor of plaintiff. Conclusions of law were entered in accordance with the findings of fact, and a decree was rendered quieting title to the land in plaintiff. Defendants appeal.

The only question is as to the delivery of the deeds referred to in the pleadings. If either deed was delivered, the judgment must be reversed, and the appellants, who were defendants below, are entitled to be declared the owners of the property described in the complaint.

First, as to the 1914 deed: As claimed and stated by counsel for appellants, the facts were:

"Appellant Thomas S. Kelly, grantee in said deeds, is the only full brother of decedent Wm. E. Kelly, grantor in said deeds. Decedent had about 25 other relatives of the half blood. On May 16, 1914, decedent with his brother Tom (defendant Thos. S. Kelly) went to the home of E. A. Henroid, who was then county surveyor and conveyancer. Decedent stated to Henroid that he wanted a deed made out, conveying the land in question to his brother Tom, but reserving a life estate to himself. Henroid asked decedent what he wanted to do that for and decedent answered that he wanted to convey his lake land to his brother Tom. Henroid then made out the deed, and checked the description with an old deed brought for that purpose, and decedent signed the deed, and Henroid signed as a witness. Henroid then handed the deed to decedent, who, in Henroid's presence, handed the deed to appellant Thomas S. Kelly."

That Wm. E. Kelly, after signing the deed, handed it to Thomas S. Kelly, and that the parties then left Henroid's place is undisputed. Standing alone, this would indicate delivery. In favor of the claim of Thomas S. Kelly is also the fact that in the deed the grantor reserved a life estate. Such a deed raises a strong presumption of an intent to make an immediate transfer "for the reason that, if such intention had not existed, there would be no reason for such reservation." 18 C. J. 414; 18 R. C. L. 997; Riegel v. Riegel, 243 Ill. 626, 90 N.E. 1108; German-American Nat. Bank v. Martin, 277 Ill. 629, 115 N.E. 721. However, it is held in Sample v. Geathard, 281 Ill. 79, 117 N.E. 718, that the presumption is applied only where there are no circumstances showing that the grantor did not intend the deed to operate immediately. Delivery being the final act of consummating a deed, if there was a delivery the transaction was completed, and the grantor's title could not be reinvested by a redelivery of the deed to him. If there were no facts other than those mentioned, the delivery and consequent validity of the deed of 1914 would be beyond question. But there is other testimony to consider. Henroid, the scrivener who prepared the first deed, informed the parties that the deed must be acknowledged. He also warned them of the danger of delaying the recording of the deed. He testified:

"Well, William E. Kelly came to me with his brother Tom, and asked me to convey to his brother Tom the property that he owned in the bottoms next to the lake; * * * asked me to make a conveyance, a deed, to his brother Tom of all the land that he owned * * * in the bottoms near the lake, and, not knowing what the conditions were, and being intimately acquainted with the family, and with the boys, I turned to William, and asked him what he wanted to do that for. Took liberty with them, for I was well acquainted with them. * * * He said he wanted to convey to his brother Tom, and at the same moment his brother Tom turned to me and said, 'Mr. Henroid, he is not conveying this gratis; * * * he wants to keep a life interest in this.' That satisfied me. So he handed me his original deeds, and from them I instructed him at the time, though, that I was no longer a notary public. I believe they came to my house believing I was still a notary public, but I told them that my commission expired, and in case it was made he should have to go to another notary public for him to acknowledge their signature, and so forth. When this was understood I made the deed, copied it simply from the original, and handed the original to Thomas Kelly, and, holding the copy, I checked the copy with the original. * * * And after making the copies I handed them to William Edward, and asked him to sign the copy, which he did, and before handing the deed back to him I told him that it would be necessary for him to go before a notary public for him to acknowledge the deed. They agreed to do this so he signed the deed. I took the deed back, witnessed the signature myself, and handed the deed back to him, that is, to William Edward Kelly, and William Edward Kelly handed the deeds to his brother Tom in my presence. That closed the transaction. * * * Q. Mr. Henroid, when the deed was signed by Mr. William E. Kelly and handed to his brother Tom, as you have testified, * * * it wasn't then complete, was it? You had told them that they would have to go before a notary public and fix it up? A. Yes; that is right. Q. And they contemplated doing it? A. It was complete as far as the copy was concerned, and so forth, but otherwise it wasn't complete. Q. And they understood they would have to go before a notary public before they could have it delivered-- A. That is right. * * * Q. You explained to them fully that--the necessity for putting a deed on record, if it was to be an absolute, binding deed, didn't you? A. Oh, yes, yes. Well, so far--it wasn't so far as being absolute a deed, my friend, but it was in order to secure the title to themselves, not because it would be--make an absolute deed, but because it would secure them as against other parties. That is the idea that I gave them. Q. You explained to them fully that it was quite important to have it recorded, didn't you? A. Yes."

While Mr. Henroid was mistaken as to the law, and the deed was good as between the parties when signed and delivered, both grantor and grantee doubtless thought the deed of no effect until after acknowledgment and recording. Mr. Henroid testified that they "understood they would have to go before a notary public before they could have it delivered." If the parties had that in mind, was it an unconditional and unqualified delivery? In Kenney v. Parks, 137 Cal. 527, 70 P. 556, the facts were that a wife gave her husband a deed under the belief that it would not be valid until recorded. He recorded it, nevertheless, and in a suit by the wife to recover the property it was held that the delivery was not valid. See, also, Stone et al. v. Daily, 181 Cal. 571, 185 P. 665.

On May 19, 1914, or as counsel for respondent says, on May 16, 1914, the grantor and grantee went to Mr. James H. Clark to have the deed acknowledged. After he had taken the acknowledgment, Clark asked the deceased whether he was turning the deed over to Thomas S. Kelly then, or whether he expected him to have it after his death. Wm. E. Kelly, the deceased, replied: "I mean to keep control of it while I live." Thereupon Mr. Clark, in the presence of the deceased and Thomas S. Kelly, wrote a letter of instructions, addressed to James H. Clark and signed by the deceased, Wm. E. Kelly, as follows:

"I herewith deliver with this a warranty deed. made and executed the 16th day of May, A. D. 1914, for lands in Sec. 36 and 35, township 5 south of one east, Salt Lake meridian, favor of Thomas S. Kelly, and I hereby expressly instruct the said James H. Clark, or any one to whom these presents may come, to deliver the same at my death to the said Thomas S. Kelly, or his heirs, reserving, however, the right to withdraw or change same during my life."

Was the above writing part of the transaction? The trial court held that it was, and that what was done before Clark was a continuation of what was done in the presence of Henroid.

The 1914 deed remained in Clark's possession till July 19, 1920. At that time Wm. E. Kelly appeared in Mr. Clark's office and said:

"I want to change the deed I left with you, I want to deed part of it to Mrs. Tom Redmond."

Clark no longer being a notary public, he took Kelly to a notary public at the People's State Bank, where Kelly signed...