Watts v. Lawrence
| Decision Date | 18 December 1919 |
| Docket Number | 959 |
| Citation | 26 Wyo. 367,185 P. 719 |
| Parties | WATTS v. LAWRENCE |
| Court | Wyoming Supreme Court |
Rehearing Denied March 15, 1920, Reported at: 26 Wyo. 367 at 378.
ERROR to the District Court, Laramie County; HON. JOHN R. ARNOLD Judge.
Affirmed.
Ray E Lee, for plaintiff in error.
Plaintiff below did not present its claim to the administrator before suit; this is a pre-requisite to recovery by action (5616 C. S.; O'Keefe v. Foster, 5 Wyo. 343; Snyder v. State, 5 Wyo. 318); the petition does not allege such presentation nor disallowance; there is no presumption of rejection (O'Keefe v. Foster, supra, Morse v. Steele, 26 P. 693; Pratt v. Hunt, 41 P. 12; Bank v. Charles, 24 P. 1019; Burke v. Maguire, 98 P. 21; Willis v. Booth, 91 P. 759); there was an error of description in the deed which was not reformed by action; this should be fatal to recovery (5623 C. S.); reformation sought in the amended petition comes too late and, moreover, there was no evidence of mutual mistake to justify a reformation (Stoll v. Nagle, 15 Wyo. 86; Grieve v. Grieve, 15 Wyo. 358); the intention of the parties governs in construing a deed (Wolfe v. Scarborough, 2 O. St. 361; Banlos v. Ash, 19 Ill. 187); the instrument must be construed as a whole (Hamner v. Smith, 22 Ala. 433; Bruensmann v. Carroll, 52 Mo. 313); effect must be given to the entire instrument (Barnes v. Haybarger, 53 N. S. 76); written language inserted will prevail over the printed form of a deed (McNear v. McComber, 18 Iowa 12; Reed v. Hatch, 55 N.H. 327), and words given their natural meaning (Bradshaw v. Bradbury, 64 Mo. 334); there was failure to prove performance of conditions precedent (Stockton v. Weber, 98 Cal. 433, 33 P. 332); payments directed by the deed are a condition precedent (Re. Jones, 123 Mich. 505, 48 L. R. A. 580); unless the petition avers performance of conditions precedent, there can be no recovery (Albers v. Co., 66 N.W. 1040; Weeks v. O'Brien, 36 N.E. 185); the instrument recites a nominal consideration, a circumstance favoring forfeiture, unless conditions are shown to have been performed (70 Am. St. Rep. 731, 58 O. St. 67; 50 N.E. 99); if the instrument was not delivered in the life time of the grantor, a bona fide purchaser could take no title (Stone v. French, 37 Kan. 145, 14 P. 530); failure of delivery by the maker in her life time gives the instrument testamentary character; but in the present case the instrument is void as a will because improperly executed; grantor died with the deed in her possession, which is strong evidence of no delivery (Vrseland v. Vrseland, 48 N.E.Eq. 56); ignorance of mistake in description in a deed is no excuse (Foster v. Manefield & Coldwater R. 146 U.S. 88; Netzel v. Co., 65 F. 23); there can be no reformation without a showing of meritorious consideration (Pomeroy's Eq. Rem. 679); admissions alone are insufficient to establish a claim against an estate (Clark v. Roberts Estate, 87 P. 1077); the covenant of seizin was broken when made ; the statute of limitations ran from the date the covenant was broken ( ; the pleadings of defendant in error are insufficient in not alleging positive facts (Hazard Co. v. Volker, 3 Wyo. 189); the Court should give effect to all parts of the instrument (Balch v. Arnold, 9 Wyo. 27); it should be enforced as made by the parties (Phillips v. Hamilton, 17 Wyo. 41).
Kinkead & Henderson, for defendant in error.
Defendant in error bases his claim upon ownership of the land; want of performance of conditions precedent cannot be urged for the first time on appeal; it was unnecessary to ask for a reformation of the instrument; the contention as to the statute of limitations is without merit, as it was not pleaded below (Hart v. Walton, 99 P. 719); only claims arising on contract must be presented to an administrator before suit (5618 C. S.); the rule does not apply to actions for the enforcement of liens (5624 C. S.); the evidence established a delivery of the deed (Walter v. Kressman, 25 Wyo. 293; 169 P. 313; 3623 C. S.); parol evidence is admissible to show the intention of the parties (Pring v. Swarm, 151 N.W. 734; Balch v. Arnold, supra; Albany v. Usel, 157 P. 204; Patch v. White, 117 U.S. 210); the deed was an executed contract (Collier v. Carter, 91 S.E. 551; Phillips v. Phillips, 186 Ala. 545; Hunt v. Hunt, 119 Ky. 39, 68 L. R. A. 180; Ferris v. Neville, 127 Mich. 444, 54 L. R. A. 464); a deed to take effect on the death of the maker where there are no other indicia to prove the intention of the grantor, may be construed as a deed or a will to prevent its becoming inoperative; the apparent intention of the parties must govern; even had the instrument provided that it should not be operative until the death of the grantor, that would not have determined the testamentary character of the instrument (Iness v. Potter, 153 N.W. 604; Pyle v. East, 155 N.W. 283); a deed becomes operative in praesenti even though enjoyment of the estate is postponed until the death of the grantor (Thomas v. Williams, 105 Minn. 88, 117 N.W. 155); a voluntary conveyance is good against the grantor's heirs, unless obtained by fraud or coercion (13 Cyc. 530); any valuable consideration will support a conveyance of land (13 Cyc. 533); the fact that the instrument was found among the effects of the grantor's, is of no importance on the question of delivery (Walter v. Kressman supra); the deed was signed and sealed by grantor and recorded by plaintiff and no other ceremony was required to make it effective (3623 C. S.); the case is on all fours with Meyer v. Stortenbecker, 165 N.W. 456); the right of a decedent to dispose of property as he may desire cannot be questioned (Cook v. Cook, 165 N.W. 402); the statute of limitations cannot be raised under a general denial (Bank v. Bank, 11 Wyo. 32; Marks v. Board, 11 Wyo. 482; Fidelity Co. v. Parker, 20 Wyo. 29); the statute of limitations would not run until grantor claimed an interest adverse to grantee (Cook v. Elmore, 25 Wyo. 393).
BURGESS, DISTRICT JUDGE. BEARD, C. J., and POTTER, J., concur. BLYDENBURGH, J., being unable to sit in this case, HON. JAMES H. BURGESS, Judge of the Fourth Judicial District, was called in and sat in his stead.
This is a case brought here by Clyde M. Watts, Administrator of the estate of Mary A. Edwards, with the will annexed, defendant below, by proceedings in error to review a judgment rendered by the District Court of Laramie County adjudging the defendant in error, Charles P. Lawrence, plaintiff below, to be the owner of a special fund held by the Stock Growers' National Bank as stakeholder and to which the plaintiff in error had asserted a claim.
On March 29, 1905, Mary A. Edwards, a widow, signed, executed, and delivered to her son, Charles P. Lawrence, defendant in error herein, a warranty deed describing the following lands situated in a then portion of Laramie County, Wyoming, to-wit: The east one-half of the northwest quarter, the southwest one-quarter of the northeast one-quarter, and the northwest one-quarter of the northwest one-quarter of section twenty-six in township fourteen north of range seventy west. Through error, the description included the northwest quarter of the northwest quarter of said section twenty-six, which the grantor did not then and never did own, and omitted the northwest quarter of the northeast quarter of said section twenty-six, which was owned at the time by the grantor, and which, by the intention of the parties, was to be embraced therein. Sometime later the east half of the northwest quarter and the west half of the northeast quarter of said section twenty-six were taken by the City of Cheyenne in condemnation proceedings for water works purposes, and the compensation finally allowed for the taking of these lands amounted to $ 4,200.00, which sum is the subject matter of this controversy.
In April, 1915, Mary A. Edwards died, leaving a will, which was admitted to probate, and one Albert Chapman appointed executor. Chapman having resigned, Clyde M. Watts was appointed, and has been, since January, 1917, the administrator of the estate of Mary A. Edwards with the will annexed.
Both Charles P. Lawrence and the executor of the will of Mary A. Edwards having demanded the condemnation money from the City of Cheyenne, it was finally, by stipulation of the parties, placed in the hands of the Stock Growers' National Bank of Cheyenne to be held by it pending the litigation and turned over to the party to whom the ownership thereof was decreed, and the bank was made a party to the action.
The main contention upon which a reversal of the case is sought by the plaintiff in error is that the deed or instrument above mentioned was invalid in that it was never delivered, and that it was testamentary in character and, not being executed with the formalities of a will, was ineffectual either as a deed or a will.
The basis of the contention that there was no delivery of the instrument is the fact that it was found upon the death of the grantor among some of her effects. The evidence in the case, however, shows that upon the signing of the instrument by the grantor she acknowledged to T. J. Fisher, Clerk of the District Court of Laramie County, Wyoming, "that she signed, sealed and delivered" the same "as her free and voluntary act for the uses and purposes therein set forth"; that the...
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