Young v. O'Donnell

• Decision Date: 01 April 1924
• Docket Number: 18411.
• Citation: 129 Wash. 219,224 P. 682
• Court: Washington Supreme Court
• Parties: YOUNG v. O'DONNELL ex ux.

224 P. 682

129 Wash. 219

YOUNG v. O'DONNELL ex ux.

No. 18411.

Supreme Court of Washington

April 1, 1924

Department 1.

Appeal from Superior Court, Clarke County; Simpson, Judge.

Action by Annie Young against John P. O'Donnell and wife. Decree for defendants, and plaintiff appeals. Reversed.

Miller Wilkinson & Miller, of Vancouver, for appellant.

Yates &amp Yates, of Vancouver, for respondents.

HOLCOMB J.

Appellant brought this action for ejectment and to quiet title in herself, and respondents answered affirmatively, alleging title in themselves, and praying that their title be quieted. Both parties claimed as the common source of title their father, Patrick O'Donnell. Appellant also showed a quitclaim deed from John P. O'Donnell to her, not executed jointly with him by his wife. Appellant alleged an oral agreement entered into between herself and her brother the respondent John P. O'Donnell, whereby she assumed the care of their father in 1919, when he was 82 years old, and needed special care and attention. She also alleged that she received a deed from her father, which was a part of the agreement and understanding between them all that possession of the premises so conveyed was surrendered to her, and assistance rendered in looking after the premises for appellant and in collecting rentals from the tenant in possession by John P. O'Donnell.

Respondents in their affirmative defense set up a deed from Patrick O'Donnell to respondent John P. O'Donnell, and claim that this deed conveyed the property to respondents as man and wife, which constituted it community property. Respondents also allege that, because John P. O'Donnell signed the deed to appellant without the signature of his wife, the deed was therefore void under our statutes as to community real estate. Appellant replied to the affirmative defense by general denial.

The trial court found in substance as follows: That Patrick O'Donnell, the father of the parties, was, on May 17, 1912, the owner of, and resided upon the real estate involved, together with other real estate; and that on that day he deeded to his son, John P. O'Donnell, then being a married man (his wife was his corespondent, Sarah O'Donnell), the premises in controversy herein; that the deed was a deed in the ordinary form of a statutory warranty deed, but contained the following clause:

'This deed is to take effect only after the death of the grantor, and the grantor herein reserves to himself a life estate in the above premises, and is to have and to use and to retain absolute control until the death of the grantor. In case the grantee dies before the grantor, then this deed to be null and void, and to be of no effect as though this conveyance had never been made or executed.'

The deed recites as consideration love and affection and the nominal sum of $1. The trial court found that the deed was given by Patrick O'Donnell in consideration of John P. O'Donnell and his wife caring for Patrick O'Donnell until his death. The court further found that some time prior to December, 1919, respondent John P. O'Donnell arranged with his sister, appellant herein, for her to take the care, support, and maintenance of Patrick O'Donnell during the period of his lifetime, and in consideration thereof executed and delivered to appellant an instrument in the form of a deed, purporting to convey to her the real property involved herein; that at the time appellant took Patrick O'Donnell to care for she expended approximately $1,000 on remodeling her house and putting it in proper condition to take proper care of her father, and that she took her father to her home pursuant to the agreement, and kept him there until about a month and a half before his death; that thereafter on May 4, 1921, Patrick O'Donnell executed and delivered to his daughter, appellant herein, an instrument in the form of a warranty deed, purporting to convey to appellant the above-described property; that Patrick O'Donnell is now deceased; that respondent Sarah O'Donnell has never in any way by any deed or admission on her part consented to the transfer of the property from her husband to appellant.

Based upon the foregoing findings of fact the court concluded that the deed from Patrick O'Donnell to John P. O'Donnell created a present interest in the lands thereby conveyed, subject only to the life estate therein reserved to the grantor; that the deed was not testamentary in character, and that it created a present community interest in the lands involved in respondents; that the deed from John P. O'Donnell to appellant was void, and that respondent Sarah O'Donnell is not estopped to so claim; that the deed from Patrick O'Donnell to appellant conveyed to her only whatever estate he had reserved in his deed to respondent John P. O'Donnell. It was then concluded that respondents were entitled to judgment and decree quieting their title to the property as against appellant, and other relief. Decree was entered accordingly.

The primary question for determination is whether or not the deed of May 17, 1912, to respondent John P. O'Donnell was a deed conveying a present estate or interest in the premises involved, or merely an instrument of a testamentary character.

Appellant contends that it was testamentary only. Respondents contend that it was a deed conveying a present estate or interest, and that, supported by the extraneous evidence as found by the court, it was for a consideration passing from the community of John P. O'Donnell and wife to the grantor, Patrick O'Donnell, and the property thereby conveyed by Patrick O'Donnell was conveyed for a valuable community consideration, and not as a gift, and constituted community property.

It must be said in general that the authorities fight on both sides of this proposition. A vast number of authorities have been examined, most of them cited by respondents, but many of them are based upon peculiar language of the conveyance or instrument involved to establish that the instrument there involved was a deed rather than a testamentary instrument. Under the system existing in this state, if the instrument was testamentary in character, it conveyed the property to John P. O'Donnell as a gift or devise, and became separate property in which his wife acquired no interest.

In Andrews a. Andrews, 116 Wash. 513, 199 P. 981, this court held that property acquired by a husband under a contract for its devise in return for the care and support of the grantee's parents would be community property. Our statute was referred to, providing that:

'The 'gift, bequest, devise or descent' contemplated by the statute as constituting separate property is not based upon contract or consideration, and property willed by one to another in compliance with a contract between the parties is not a gift or bequest in contemplation of the statute.'

And in the case of In re Brown's Estate, 124 Wash. 273, 214 P. 10, which is relied upon by respondents, the principle was again reaffirmed as established by a number of cases cited therein, that the 'presumption is that property acquired during coverture is community property. * * * And the burden is upon the person claiming it to be separate property to establish that as its character.'

The cases of Showalter v. Spangle, 93 Wash. 326, 160 P. 1042, and Bloor v. Bloor, 105 Wash. 110, 177 P. 722, are relied upon by respondents, and the following quotation is made:

'It is essential to the delivery of a deed that there be a giving by the grantor and a receiving by the grantee with a mutual intention to pass a present title from the one to the other. * * * This mutual intention is the cardinal requisite. * * * This is as essential to a deed of gift as to any other. It is elementary that a deed cannot perform the functions of a will, hence cannot be effectually delivered after the grantor's death. When, however, the grantor delivers the deed to a third person in escrow to be held until the grantor's death and then delivered to the grantee, the grantor retaining to dominion

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