Van Huss v. Wooten

• Decision Date: 19 March 1945
• Docket Number: 4-7565
• Citation: 186 S.W.2d 174,208 Ark. 332
• Parties: Van Huss v. Wooten
• Court: Arkansas Supreme Court

186 S.W.2d 174

208 Ark. 332

Van Huss v. Wooten

No. 4-7565

Supreme Court of Arkansas

March 19, 1945

Appeal from Benton Chancery Court; John K. Butt, Chancellor.

Affirmed.

Vol T. Lindsey, for appellant.

A L. Smith, for appellee.

OPINION

Robins J.

The sole question in this case is whether a deed executed by John M. Van Huss, deceased, on March 9, 1942, purporting to convey to appellant, J. D. Van Huss, a twenty-four acre farm in Benton county, Arkansas, was ever delivered in the lifetime of the grantor so as to vest title in appellant.

Appellee filed complaint in the lower court against appellant, alleging that she was the owner of this land by virtue of a will executed by John M. Van Huss, her brother, under which will all his property was devised to her, and that the deed to appellant, recorded after the death of John M. Van Huss, was void because it was never delivered to appellant; and she prayed for the cancellation of the deed as a cloud upon her title. Appellant in his answer denied the allegations of the complaint and alleged that the deed was delivered to him by the grantor.

The court found that the "said deed is void . . . because said deed was never delivered to the defendant in the lifetime of the deceased, but came into the possession of the defendant from an unauthorized source after the death of the deceased, and that no title passed to the defendant by said deed; that defendant paid no consideration for said deed." From the lower court's decree cancelling the deed and vesting title to the property in appellee this appeal is prosecuted.

There is little dispute in the testimony. Under the will of John M. Van Huss, a bachelor and a resident of Pampa, Texas, he devised and bequeathed all of his property to appellee, his sister, with whom he had made his home for about seven years before his death. This will was executed on December 20, 1939, and after his death was duly probated in the county of his residence in Texas and also probated, as a foreign will, in Benton county, Arkansas. The deed involved herein was executed on March 9, 1942, and it was retained in the actual possession of the grantor, John M. Van Huss, until his death. John M. Van Huss remained in possession of the land, and, on June 16, 1942, mortgaged it to secure a note for $ 150 to Elizabeth F. Smith. He paid this debt and obtained release of the mortgage on November 28, 1942.

After the death of John M. Van Huss, which occurred on February 14, 1943, appellant, appellee and other relatives opened a suitcase belonging to John M. Van Huss, which he had kept near his bed in the home of appellee, and found therein, among other effects and papers, the deed here involved. Appellant took charge of the deed and caused it to be recorded.

It was not contended by appellant that the deed had ever been manually delivered to him by his uncle, the grantor, but he testified that his uncle had told him about executing the deed and that he paid his uncle one dollar to make the deed legal. Appellant testified: "He told me when he drawed his last breath to go to his suitcase and get it . . . Q. Did he discuss with you why he didn't give you the deed? A. He wanted to take care of it himself 'til he passed away. Q. He said he wanted to have the use of the property, have control of it? A. Yes." Appellant is contradicted as to this by Judge Cary, the attorney in Texas who attended to the probating of the will there. Judge Cary testified that appellant told him that he (appellant) knew nothing about the deed until after his uncle's death. Although appellant admitted talking to Judge Cary about the matter and that Judge Cary told him the deed "wasn't any good," and admitted that as a result of this conversation he unsuccessfully tried to get a quitclaim deed from appellee, appellant did not deny that he had told Judge Cary that he (appellant) knew nothing of the existence of the deed until after the death of John M. Van Huss. H. B. Van Huss, father of appellant, testified that his brother, John M. Van Huss, said: "My deeds and papers are fixed and when I die I want these papers delivered like I've got them fixed . . ." Nowhere in the testimony is it shown that anyone, other than John M. Van Huss, during his lifetime, ever had possession of the deed or that he ever surrendered control over it as long as he lived.

Our decision in the case of Johnson v. Young Business Men's Building & Loan Association, 187 Ark. 430, 60 S.W.2d 925, is cited by appellant as supporting his contention that there was a delivery of the deed to appellant. But in the Johnson case it was shown that the deed there involved was placed in a safe, the combination of which was known to the grantee, and to which safe the grantee at all times had access. It further appeared in that case that the grantee was the seventeen-year-old son of the grantors, and, for that reason, it was not entirely inconsistent with a delivery of the deed for the parents, the grantors, after delivery of the deed, to have kept it in their custody for their minor son. In the instant case there was no testimony to indicate that appellant, who was an adult living in his own home, ever had the deed in his possession or ever had access to his uncle's suitcase, in which the deed was kept.

The general rule as to the sufficiency of delivery of a deed is thus stated in 16 Am. Jur., p. 510: "While delivery may be by words or acts, or by both combined, and manual transmission of the deed from the grantor to the grantee is not...