Woodrum S. v. Price S.

• Decision Date: 11 October 1927
• Docket Number: (No. 5944)
• Citation: 104 W.Va. 382
• Parties: Ann Woodrum et als. v. Ira D. Price et als.
• Court: West Virginia Supreme Court

104 W.Va. 382

Ann Woodrum et als.

v.Ira D. Price et als.

(No. 5944)

Supreme Court of Appeals of West Virginia.

Submitted October 4, 1927.

Decided October 11, 1927.

1. Deeds Manual Delivery of Deed to Grantee or Some One for Him Not Necessary to Make Deed Valid and Operative. Delivery May be Constructive, Depending Upon Intention Ascertained From Facts and Circumstances Surrounding Execution.

The manual delivery of a deed to the grantee or some one for him is not necessary to make the deed valid and operative. The delivery may be constructive, depending upon the intention ascertained from the facts and circumstances surrounding its execution. (p. 387.)

2. Same Son of Grantee in Deed Not Incompetent, Under Sec. 23, Chapter 130, Code, to Testify as to Execution or Delivery by Grantor, Since Deceased, Simply Because He is Son of Grantee. As Such He Has no Interest in Suit Which Would Render Him Incompetent.

A son of the grantee in a deed is not incompetent, under Sec. 23, Chapter 130, Code, to testify as to its execution or delivery by the grantor, since deceased, simply because he is the son of the grantee. As such he has no interest in the suit which would render him incompetent. (p. 388.)

3. Attorney And Client In Order to Render Communications Made to Attorney at Law Privileged, It Must be Shown That Relation Existed, or Was Contemplated, at Time; Burden of Showing Such Relation Rests Upon Party Who Asserts That Communications Were Privileged.

In order to render communications made to an attorney at law privileged, it must be shown that the relation of attorney and client existed, or was contemplated, at the time; and the burden of showing such relation rests upon the party who asserts that the communications were privileged. (p. 388.)

Appeal from Circuit Court, Boone County.

Suit by Anne Woodrum and others against Ira D. Price and others. Judgment for defendants, plaintiffs appeal.

Affirmed.

Thomas Coleman and John B. Hager, for appellants.

Bratton & Garnett and Leftwich & Shaffer, for appellees.

Lively, Judge:

Benjamin P. Price died intestate in the year 1916, having executed and acknowledged two deeds each bearing date March 13th, 1915; one to Ira D. Price, defendant, conveying about 25 acres by metes and bounds, excepting therefrom about two acres that day deeded to Ella E. Price, defendant; the other deed is to Ella E. Price, and contains two acres more or less by boundaries and is a part of the land described in the first mentioned deed. Two or three days after the death of Benjamin P. Price, these two deeds were admitted to record in the office of the county court clerk. The 25 acres conveyed by these two deeds is located near the town of Madison and on the opposite side of Coal River and was used by the deceased as a farm, on which he had reared a large family, the plaintiffs and defendants in this case. By reason of the industrial development in that thriving community, the land increased in value. A bridge was later constructed across the river from it, and a highway located and built through. Six or eight acres was sold by the grantee in one of the deeds for about $12,000.00; and later, gas in paying quantities was discovered on the tract. In the year 1925, nine years after the death of Benjamin, plaintiffs who are his children and heirs at law, instituted this suit against Ira Price (a son of Benjamin), and Ella E. Price, wife of W. R. Price (also a son of Benjamin). The object of this suit is to set aside and cancel the two deeds; to partition the land among the children of Benjamin, and to require the defendants to account for the rents, issues, profits and proceeds of the 25 acres, which was all of the real estate claimed to have been owned by the father, Benjamin. Upon final hearing, the circuit court denied relief to the plaintiffs and dismissed their bill, and they appealed.

The controlling question presented is, whether there had been a delivery of the two deeds to the grantees.

According to the evidence of the defendants, there was actual manual delivery to the grantees; but the plaintiffs claim that all of the evidence of manual delivery is incompetent under sec. 23, chapter 130 of the Code, as being testified to by witnesses interested in the litigation.

It appears that in 1903 all of the children of Benjamin F. Price had married and left his home, except Ira Price, defendant, who had not married, but had gone to the home of his brother, W. R. Price, who lived at Maiden, in Kanawha County, and was living with him. The father being left alone in his home on the 25 acres, went to Maiden and induced Ira to return and live with him, with the understanding that he would convey the home place to him. The father and son lived together until 1907, when the son married, and brought his wife into the home, where they all lived together amicably until the death of the father. Sometime before 1915 TV. R. Price moved back from Maiden, and resided on Coal River, a short distance from his father's house. About a month prior to the execution of the deeds, Benjamin had made arrangement with Vernon G. Vande Linde, a notary public, school teacher and farmer, with whom he was acquainted, for the preparation and acknowledgment of the deeds. This notary lived about four miles from Benjamin's home. On the day of the execution of the deeds, the grantor went to the home of the notary public in company with defendant, W. R. Price, his son, and taking with him his title papers to the 25 acres, and upon the direction and instruction of the grantor, the two deeds were drawn and were executed and acknowledged. The deed to Ella Price, containing two acres by boundaries, is in fee without reservation; that to Ira Price is in fee reserving the control of the land during the natural life of the grantor. It does not appear from Vande Linde's evidence that the deeds were then de- livered to W. R. Price. According: to the testimony of W. R. Price, he and his father returned to the home of the former, where the deed to Ella E. Price for the two acres was delivered to her, which she read in their presence and in the presence of their son, Zacha Price. She placed the deed in some receptacle in the house. Prom there they went to the home of Ira Price, where the deed to him was delivered to his wife, who also read the same and the deed was then placed in a wooden box belonging to Ira, which had been made for papers of that character, on which was a lock with two keys, one kept by the father and the other by Ira, Two or three days after the sudden death of Benjamin in 1916, TV. R, Price and Ira Price placed their deeds to record. The testimony of TV. R. Price, with reference to what was done with the deeds after they were executed and acknowledged by Vande Linde is claimed to be incompetent, under sec, 23, chapter 130, Code. J. D. Price, a cousin of Benjamin, who for many years lived about a half mile away from the latter, and who saw him quite frequently, said that Benjamin told him he had promised to make Ira a deed, because the latter had come over and stayed with him; that Ira and his wife were as good to him as they could be; and several times had told him that he intended to make the deed; and finally, that he had made the deed to Ira, and that he had ''got that off his hands." F. P. Murphy, a practicing attorney in Madison, (the county seat), testified that he knew Benjamin quite well, as the latter lived about a quarter of a mile from his office; that they were friends, and that he saw him frequently; that prior to his death the old gentleman came to him to find out whether the deed he had made to Ira was sufficient to convey to him the land, or whether lie would have to make a will; whereupon, he advised him that his deed was sufficient to convey the property. He said the old gentleman told him that Ira was the only one of his children that had "stuck by him", and for that reason he had decided to give him nearly everything he had, but not to say anything about the deed he had made Ira, because his daughters "would raise hell with him, if they knew of it." This testimony is claimed to be incompetent as a privileged and confidential communication between lawyer and client. Zacha Price, son of W. R. Price, testified that he was about 14 or 15 years old at the time of the execution of the deed (he was 25 years old at the time he gave his evidence), that his grandfather Benjamin and his father left his father's house on the morning of the execution of the deeds for Vande Linde's home, and returned that evening about supper time, when his grandfather delivered the deed to the two acres to the grantee, his mother, saying: "Here Ella is your deed to the two acres of land," and asked her to read it, which she did, and that after supper his grandfather left in company with his father, W. R, Price. While this evidence was objected to as incompetent on account of interest in the witness, it is not seriously objected to as such by counsel here. The criticism of the evidence is, that it is not entitled to...