Thomas v. Dancer
| Decision Date | 15 December 1953 |
| Docket Number | No. 35146,35146 |
| Citation | 264 P.2d 714 |
| Parties | THOMAS v. DANCER et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where the owner of land executes a deed purportedly conveying such land to another and deposits such deed with a third person with the intention that it should not pass from the control of the grantor, there is no delivery and the deed is void.
2. Generally, recitals in a contract will not control the operative clauses thereof unless the latter are ambiguous.
3. Held that under the facts in the case the parties had entered into a valid antenuptial contract and that same was not revoked by alleged subsequent oral agreement.
Lon Kile, Hugo, for plaintiff in error.
Geo. T. Arnett and Ed. R. LeForce, Idabel, for defendants in error.
Parties are referred to herein as in the trial court.
This action was brought by Lula Thomas, administratrix of the estate of D. G. Thomas, deceased, as such administratrix and as surviving widow of the deceased, for the cancellation of certain deeds, and to have a certain ante-nuptial contract declared void. The facts giving rise to this action are as follows:
Deceased had adult children by a previous mariage at the time he began paying court to plaintiff herein. On April 2, 1938, deceased executed 4 deeds by the terms of which he conveyed certain described lands to three of his children and to the children of a deceased daughter. The deeds were prepared by a Mr. Moran, a long-time friend and business advisor of deceased. Mr. Moran was a notary public, minister and former bank official, and was reputed to be a justice of the peace, though this was not true. He was not a lawyer. The deeds contained provisions to the effect that they were not to become effective till after the death of grantor; in all other respects they were ordinary warranty deeds. They were left in the possession of Mr. Moran.
On April 16, 1938, deceased executed a will, which was also prepared by and left with Mr. Moran, and which will be referred to later.
On June 7, 1938, plaintiff and deceased executed an ante-nuptial contract prepared by Mr. Moran, providing generally that in the event of the death of either of them, the survivor would not claim any interest in the separate property of such deceased one, and containing the following paragraphs, among others, which are pertinent in this action
Shortly after execution of this contract, deceased and plaintiff were married. The officiating minister was Mr. Moran.
On October 4, 1946, deceased executed 2 deeds conveying to two of his children certain described lands which had been acquired after marriage; these deeds contained the same provision that they were to become effective only at the death of the grantor; Mr. Moran was again the scrivener and the deeds were left in his possession.
Thereafter, Mr. Thomas died, and plaintiff herein was appointed administratrix with the will annexed of the estate of D. C. Thomas, deceased. At approximately the same time (after the death of Mr. Thomas) Mr. Moran delivered all deeds mentioned above to the respective grantees, and they were filed for record. However, Mrs. Thomas apparently took possession of all of the real estate as administratrix except a farm which had been rented prior to her appointment and retained possession of a portion thereof until the date of the trial.
Defendants' answer and cross-petition admitted the execution of the deeds, will and ante-nuptial contract referred to, but denied the existence of grounds for cancellation of the deeds and avoidance of the contract, and asked that plaintiff be required to account for the rents received from the lands in her possession, and that their titles be quieted.
The trial court found for defendants, and plaintiff has appealed.
For cancellation of the deeds, plaintiff urges that there was never any delivery and the transfer of title was therefore never completed; that the deeds are testamentary in character and, not having been signed in the presence of two witnesses, are void as wills, and therefore void for any purpose.
It is well settled in this state that the owner of land may pass title to the same by executing a deed which is delivered to a third person (not the grantee) with the intention on the part of the grantor of placing such deed 'beyond recall' or beyond his own control when he delivers it to such third person. See Wright v. Anstine, 96 Okl. 162, 220 P. 928, and Kay v. Walling, 98 Okl. 258, 225 P. 384. The question in the instant case, then, is whether the deceased intended to place the deeds 'beyond recall'.
The principal witness on this question in the court below was Mr. Moran. At all times heretofore mentioned, Mr. and Mrs. Thomas and Mr. Moran were all elderly people, and at the time of trial Mr. Moran was 82 years of age. A careful examination of his testimony reveals that he had been deceased's business advisor and personal friend for 30 or 40 years; that he helped in many of his business transactions; that he customarily kept various business papers and instruments of deceased, who was an uneducated man. It may fairly be inferred from such testimony that he was merely acting as a depository in retaining such instruments in his possession. At one point he testified as follows with reference to instructions by Mr. Thomas concerning the deeds in question:
He also testified as follows without objection * * *'
On cross-examination he testified:
We think that under the clear weight of the evidence herein, it was shown that Mr. Thomas gave the deeds to Mr. Moran...
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