Walsh v. Kennedy , 115 Mont. 551 ( 1944 )

At the time of her death on June 27, 1941, Mary Z. Kennedy was in the possession of a two-story apartment house located in the six hundred block on Washington Street in Butte, Montana, the title to which property then stood and still stands on the records of Silver Bow county in her name. The apartment house was built in 1916 by Mary Z. Kennedy and her husband, Mike R. Kennedy. It contained four apartments. One of these apartments was occupied by Mary Z. Kennedy as her home from the time the building was erected until the time of her death. The remaining three apartments, Mary Z. Kennedy rented to tenants.

When Mary Z. Kennedy died intestate, the plaintiff was appointed as administratrix of her estate and took possession of same, including the apartment house on Washington Street.

After the death of Mary Z. Kennedy, an unrecorded grant deed to the apartment house was found in a safety deposit box which Mary Z. Kennedy had rented at the First National Bank of Butte and to which no other person had access. The deed purports to be an absolute conveyance; it is dated January 28, 1941, and it purports to be from Mary Z. Kennedy, grantor, to her brother-in-law, Harold N. Kennedy, grantee. The grantee named, Harold N. Kennedy, claims that under such unrecorded deed he became the owner of the apartment house prior to Mary's demise. In view of such claim, the administratrix commenced this suit to quiet title naming Harold N. Kennedy as a defendant therein. The amended complaint contains the customary and ordinary allegations found in suits of this character and alleges "that at all the times hereinafter mentioned and for more than three years prior to the 27th day of June, 1941, the said Mary Kennedy was the owner in fee and in the actual possession of the" described real property.

In the amended answer and cross-complaint which the defendant and cross-complainant, Harold N. Kennedy, filed herein, he "admits the fact to be that prior to on or about the 28th day of January, 1941, the said Mary Kennedy was the owner in fee of said premises, and in this behalf alleges the fact to be, that on or about the 28th day of January, 1941, the said Mary Kennedy, in her lifetime, did make, execute and deliver to this answering Defendant a good and sufficient deed to the real property described in Paragraph 3 of said Complaint; that at all timesthereafter, and at the time of the death of said Mary Kennedy,Plaintiff was, and ever since has been, the lawful owner of saidreal property in fee * * *." The plaintiff is the administratrix and it would seem that the amended answer and cross-complaint admit that "at the time of the death of said Mary Kennedy, Plaintiff was, and ever since has been, the lawful owner of said real property in fee."

At the trial the plaintiff administratrix supplied evidence showing that Mary Z. Kennedy died on June 27, 1941; that up to the time of her death she possessed and occupied the property; that the record title to the property prior to and at the time of her death stood and now stands in the name of Mary Z. Kennedy; that plaintiff was duly appointed as administratrix of the estate and that as such she had taken possession of the estate and has since collected the rents from the apartments under a special order of the probate court. With this evidence, the plaintiff rested her case.

The defendant and cross-complainant, Harold N. Kennedy, then offered testimony in an attempt to establish that the unrecorded deed had been delivered to him in the grantor's lifetime.

Delivery being an affirmative act, the burden of proving it is upon the person alleging it. Whether or not Mary Z. Kennedy ever made a delivery of the deed in her lifetime, depends upon her intention for intention is the essence of delivery.

To meet the burden which was upon him, the defendant and cross-complainant Harold Kennedy offered the testimony of three witnesses and himself. His first witness, C.S. Jackman, a notary public engaged in the real estate business, testified that on January 28, 1941, at the request of Mary Kennedy he prepared in his office the deed in question and went to Mary's home where she signed it and he took her acknowledgment, after which he handedthe deed back to Mary Kennedy. There was no other witness to these acts and no other person was present. From that date on, Mr. Jackman did not see the deed again till at the trial. On direct examination, he testified: "Q. Now, then, at the time she (Mary Kennedy) signed the deed, what was done with the deed then? A. She kept the deed." While the witness testified that when Mary Kennedy took the deed from him she "considered that a grant to Harold Kennedy, and she was going to deliver it herself," yet these were merely the conclusions of the witness and plaintiff's motion to strike them should have been granted. The trial court's error in denying plaintiff's motion to strike is not reversible, however, for the reason that neither the district court nor this court may consider such inadmissible conclusions of the witness as evidence of delivery of the deed. Thus, there is nothing in the testimony of the witness Jackman that tends to prove delivery. There is nothing in the testimony of cross-complainant's next witness, John Degnan, that supplies any evidence of delivery of the deed. Cross-complainant's third witness, Fred Heffron, testified to a conversation which he had at his home with Mary Kennedy in May, 1941, wherein "she did sayin the event anything happened to her she had the proper papers leaving everything to Harold Kennedy. Q. Did she say what, if anything, she had done with those papers, or who, if any one, she had given any of those papers to? A. Yes. Q. What did she say? A. She had given them to Harold Kennedy." The fact is undisputed that, at that very time (May, 1941), the unrecorded grant deed was then and there in the grantor's possession and custody and under lock and key in her safety deposit box at the bank where it had been since February 7, 1941. The records of the bank disclose that the safety deposit box was not entered by anyone from that date until after Mary's demise and, as no other person had access to the box, the evidence is clear that at the time of the alleged conversation the deed was then in Mary Z. Kennedy's exclusive possession. There is therefore nothing in the testimony of the witness Heffron which furnishes any evidence of delivery. Not a single witness in this case ever saw the deed in the possession of the claimant Harold Kennedy prior to Mary's demise. The one and only witness to testify to a delivery was the cross-complainant and such testimony coming from an interested party to the action after Mary's voice had been silenced in death is the least satisfactory of all evidence. (Sec. 10535, subdiv. 3, Revised Codes.)

In a deposition which he gave prior to the trial, the cross-complainant testified:

"Q. Now tell me on this day that you state that Mary Kennedy handed you the deed. Will you repeat again just what occurred on that day? A. The only thing occurred was, when I came in she said, or I asked her what was on her mind, and she said `Well, here's the deed.' She said `This belongs to you now,' and I opened it up and looked at it, and went thru it, and then I asked her if she had a safety deposit box in the bank, and she said `Yes.' Well, then, I said `I think that would be the proper place for it.' I felt this way about it, that she was to haveeverything, the apartments were to belong to her as long as shelives, and whatever comes from them was to be hers, and Icouldn't see that it made any difference where the deed was, aslong as it was made out to me. Of course, if I had known as much at that time as I know now, we wouldn't be here. * * *

"Q. Then you handed the deed back to Mrs. Kennedy? A. Yes.

"Q. Did you ever again see the deed? A. Yes. I saw it when we went thru the safety deposit box.

"Q. After her death? A. Yes, that's the only time I ever saw it. I was pretty sure it was there.

"Q. And she stated to you at the time that she gave you the deed, Harold, that she wanted you to have the apartments on herdeath? A. Yes. That was what her and her husband had agreed on. * * *

"Q. Mr. Kennedy, on or about the last of January, 1941, or the first of February, 1941, what, if anything, occurred in relation to that property, Lot 23, Block 5 of the Travona Addition, between you and Mrs. Kennedy? A. Well, along about the last of January or the 1st of February, she called up one day and she said she wanted to see me, and when I went down and went in she handed me the deed to the apartments, and I looked it over, and saw everything was all right, and I asked her if she didn't have a safety deposit box in the bank, and she said she did; and she said `I intend to give you one of the keys in a few days.' And Ithought, well, that would be the proper place for it, the safetyplace for it, and she would probably feel better in case shewanted to change her mind later on. So I gave her the deed, andshe put it in the safety deposit box. * * *

"Q. Well, to obviate the possibility the question is improper, I will ask you, Mr. Kennedy, if Mary Kennedy, in her lifetime delivered to you the key of her safety deposit box? A. At thetime she handed me that deed, she said she was going to give me akey too. She had a safety deposit box she was paying $6.50 for and she was going to try and get a cheaper one, and it seemed like she didn't succeed in getting one for less, and along about the last of May, I think it was, she gave me the key to the safety deposit box, and said the first time she went up town or something, she was going to fix it to make me jointly in thesafety deposit box which she never did. * * *

"Q. It's a fact, is it not, Harold, that you had discussed the disposition of her property with her prior to the time she called you to make the deed? A. Well, yes, she had told me that on two or three different occasions, and she also told my wife, I believe, the same thing, that they had, regardless of what else took place, that he wanted, that Mike wanted me to have theapartments after; that is, if she went first. * * *

"Q. And did you ever discuss that with Mike before his death? A. No. That's something we never — we knew all the time if he went first he certainly would leave everything to her. * * * The only thing she said was `Here is the deed, this belongs to you now. That's what your brother and I had agreed on, that you wereto have this after I was gone."

The cross-complainant's own testimony shows that it was Mary Z. Kennedy's intention "that she was to have everything, the apartments were to belong to her as long as she lives, and whatever comes from them was to be hers;" that she said to cross-complainant "you were to have this after I was gone" and that he thought Mary Z. Kennedy's safety deposit box, to which he did not have access "would be the proper place for it [the deed], * * * and she would probably feel better in case she wanted tochange her mind later on." Thus did the grantee cross-complainant testify to the grantor's control over the deed and to her right of recall "in case she wanted to change her mind later on" which plainly indicates her intention that the instrument should not take effect as a conveyance until after she was gone, i.e., until after her death. This being the grantor's intention and it being so understood by the grantee, there was no effectual delivery of the deed and no title passed to the grantee in Mary's lifetime. It cannot be unfair to the cross-complainant to deal with his case from the standpoint of his own statements. (Cullen v. Peschel, 115 Mont. 187,142 P.2d 559; Morton v. Mooney, 97 Mont. 1,33 P.2d 262; Putnam v. Putnam, 86 Mont. 135, 282 P. 855.)

The law has long been well settled "that delivery is not complete until the grantor has so dealt with the instrument as a means of divesting his title as to lose all control over it and place it beyond the right of recall. It is required that the grantor shall unequivocally indicate it to be his intention that the instrument shall take effect as a conveyance of property in order to have it produce that result." (Carnahan v. Gupton,109 Mont. 244, 96 P.2d 513, 515; Miller v. Talbott,115 Mont. 1, 139 P.2d 502; Deming v. Smith, 19 Cal. App. 2d 683,66 P.2d 454.) There can be no valid delivery of a deed after the grantor's death. To be made operative after the grantor's death, the deed must have been made effectual during the grantor's lifetime. (Secs. 6843, 6845, Rev. Codes, 1935;Carnahan v. Gupton, supra; Miller v. Talbott, supra.) There can be no delivery by a dead hand. (Munpower v. Castle,128 Va. 1, 104 S.E. 706; Kenney v. Parks, 125 Cal. 146,57 P. 772; Miller v. Brode, 186 Cal. 409, 199 P. 531;Scott v. Cornell, 295 Ill. 508, 129 N.E. 94; Krug v.Bremer, 316 Mo. 891, 292 S.W. 702.)

In 1 Jones Commentaries on Evidence, 2d Ed., section 193, at page 321, the author says: "In the absence of all evidence to the contrary, it seems clear that the possession of a deed by the grantor at his death is evidence sufficient to overcome any presumption of delivery arising from the mere existence of the executed instrument." (Also see Alward v. Lobingier,87 Kan. 106, 123 P. 867; Wiggins v. Lusk, 12 Ill. 132; Weigand v.Rutschke, 253 Ill. 260, 97 N.E. 641; Parrott v. Avery,159 Mass. 594, 35 N.E. 94, 22 L.R.A. 153, 38 Am. St. Rep. 465;Donahue v. Sweeney, 171 Cal. 388, 153 P. 708; Carr v.Anderson, 105 Cal. App. 570, 288 P. 117; Allenbach v.Ridenour, 51 Nev. 437, 279 P. 32; Butts v. Richards,152 Wis. 318, 140 N.W. 1, 44 L.R.A. (n.s.), 528, Ann. Cas. 1914C, 854.)

When the cross-complainant was on the witness stand he was shown the unrecorded deed and then on his direct examination the following occurred: "Q. Have you ever seen that exhibit before today? A. Yes. Q. When and where did you first see it? A. The first time I saw it was when she handed it to me along about the last of January, and she said `Here is the deed. Now you cansend me to the poor farm any time you want to * * *.'" Plaintiff's attorney interrupted and moved that the answer be stricken but the motion to strike was denied by the trial court which observed that any evidence "contrary to the allegations under an admission amounts to nothing." The question asked did not call for the oral communication attributed to the deceased by the cross-complainant in his last answer above. Furthermore as to such communications the lips of Mary Z. Kennedy are forever sealed in death and, the legislature, in its wisdom, has sealed the lips of the cross-complainant in this action and rendered his testimony incompetent by the enactment of the "Dead Man's Statute" which provides: "The following persons cannot be witnesses: * * * 3. Parties * * * to an action * * * prosecuted against an * * * administrator upon a claim or demand against the estate of a deceased person, as to the facts of direct transactions or oral communications between the proposed witness and the deceased, excepting when the * * * administrator first introduces evidence thereof, or when it appears to the court that, without the testimony of the witness, injustice will be done." (Sec. 10535, subd. 3, Rev. Codes.) Here the administratrix did not first introduce evidence as to the facts "of direct transaction or oral communications" nor did it appear that without such testimony "injustice will be done." Clearly the testimony should have been stricken. It was incompetent and prohibited by statute. It amounts to nothing.

The facts of the instant case are quite similar to those inAlward v. Lobingier, supra, where, subsequent to its execution, the grantor handed the deed to the grantee and asking the latter to read it, told her that she (the grantor) desired to retain the deed in her own possession so she might continue to reside on the property until her death. After this the grantor told numerous and divers persons she had deeded the property to the grantee. When the grantor died the deed was among her papers. In holding that there was no delivery the court said:

"The mere handing of the deed to the grantee, with a request that she read it, did not amount to a delivery. In the same manner, a testator might hand a will to a devisee to be read. The grantor's statement that she desired to retain the deed in her own possession, so that she might continue to reside in the property until her death, appears to have been given as a reason for not delivering the deed, rather than as a reason for its being returned to her custody after a delivery had taken place. At no time did she relinquish the right to the immediate control of the deed; and wherever a manual delivery is relied upon this is a conclusive test.

"* * * Mrs. Alward doubtless fully intended that at her death the property should pass to Mrs. Lobingier by the deed. She may not have considered whether she had the power to prevent this. She may have harbored no thought of changing her plan concerning the disposition of the property. But she is not shown to have taken any step that would have given Mrs. Lobingier a legal right to have forbidden the cancellation of the deed. She not only had its actual possession, but she held it in her own right, and without having made any agreement as to its disposition. Her statements that she had deeded the property to Mrs. Lobingier signify nothing further than that she used that phrase to describe what had taken place, which did not, in law, actually involve a passing of the title. (Worth v. Butler,83 Kan. 513, 519, 112 P. 111, 113.)"

Not only is there no competent evidence in this case of any delivery, but cross-complainant's own testimony shows that it was the grantor's intention that the instrument should not take effect as a conveyance of her property until after she was "gone" and she made it plain to cross-complainant she intended that "the apartments were to belong to her as long as she lives."

In other words, it is plain from the above testimony that the property together with the full use and enjoyment of it should belong to Mary so long as she should live and that only after her death and when she could have no further possible use for same was the apartment house to become the property of her brother-in-law. Thus Mary intended to make testamentary and not present disposition of her property. To accomplish this, under the statutes, she was required to make a will. This she did not do and, in my judgment, the evidence is wholly insufficient to show any delivery of the deed to Harold N. Kennedy in the lifetime of Mary Kennedy with the intent that title should then and there pass to him. In my opinion, the undelivered unrecorded deed was and is wholly ineffectual to pass title to the property. The apartment house belonged to Mary Kennedy in her lifetime. It belonged to her on the day of her death. Thereafter the title passed to her estate of which the plaintiff is the duly authorized representative. The judgment should be reversed with directions to enter judgment for the plaintiff administratrix.

Rehearing denied April 18, 1944.