Higgins v. Thornton
2017 Ark. App. 258
| Ark. Ct. App. | 2017Background
- Alpha Burnett owned 240 acres; in June 1994 she executed and recorded two separate warranty deeds reserving a life estate: one 80-acre deed to Brenda Higgins and another 80-acre deed to Tonya Merritt Heffner.
- Burnett’s 2000 will left most of her estate in a trust for Heffner (with Arkansas Children’s Hospital as successor beneficiary) and appointed Bob Thornton trustee. Burnett died January 9, 2001; probate closed with an accounting listing a house and 80 acres.
- A warranty deed dated May 1, 1990 (but not recorded until November 5, 2009) purported to convey all 240 acres to Higgins and Heffner as co-tenants while reserving a life estate to Burnett.
- Thornton (as trustee) petitioned to quiet title and set aside the 1990 deed, asserting it was never delivered before Burnett’s death and was found among Burnett’s papers years later. Thornton produced Higgins’s interrogatory answers stating the deed had been in Burnett’s house and was found in an ammo box after Burnett’s death.
- Higgins claimed the deed had been delivered during Burnett’s lifetime (allegedly after signing at the attorney’s office), but offered no affidavit or other evidence contradicting her interrogatory answers.
- The trial court granted summary judgment for Thornton, set aside the 1990 deed, and quieted title to the remaining 80 acres in the Trust. Higgins appealed.
Issues
| Issue | Plaintiff's Argument (Higgins) | Defendant's Argument (Thornton/Trust) | Held |
|---|---|---|---|
| Was the May 1, 1990 deed delivered during Burnett’s lifetime? | Deed was delivered at attorney’s office to Higgins and Heffner and placed in box in Burnett’s house. | Deed remained in Burnett’s possession and control until after her death; found later in her papers. | No delivery shown; deed presumed undelivered and set aside. Summary judgment affirmed. |
| Does reservation of a life estate remove the presumption against delivery when the deed is found among grantor’s effects? | Cites authority that when grantor reserves life estate, possession at death does not raise presumption against delivery. | No evidence Burnett showed or provided the deed to grantees during her life; thus Grimmett line is inapplicable. | Grimmett line inapplicable because Higgins produced no proof she knew of or had seen the deed before grantor’s death. |
| Did Higgins present admissible evidence creating a genuine issue of material fact? | Counsel’s hearing statements alleged delivery; Higgins relied on those statements. | Higgins’ interrogatory answers contradicted delivery claim; no affidavits or evidence to rebut. | Higgins failed to "meet proof with proof;" her unchecked interrogatory answers warranted summary judgment. |
| Do the 1994 recorded deeds affect intent to convey the full 240 acres in 1990? | (Implicit) The 1990 grant could still have conveyed full 240 acres despite 1994 deeds. | Execution and recording of separate 1994 deeds for two 80-acre tracts undermines intent to convey entire 240 acres in 1990. | Existence of separate 1994 deeds supported finding Burnett did not intend to convey all 240 acres by the 1990 instrument. |
Key Cases Cited
- Van Huss v. Wooten, 208 Ark. 332 (1945) (deed found in grantor’s possession at death raises presumption of nondelivery; burden on claimant)
- Grimmett v. Estate of Beasley, 29 Ark. App. 88 (1989) (when deed reserves a life estate, showing the grantee knew of the deed can rebut presumption even if original remains with grantor)
- Cribbs v. Walker, 74 Ark. 104 (1905) (delivery may be found where grantor reserves life estate but shows deed to grantee and retains custody)
- Johnson v. Young Men’s Building & Loan Ass’n, 187 Ark. 430 (1933) (delivery can occur despite original remaining in grantor’s safe where grantee knew of deed and parties intended retention)
- Barker v. Nelson, 306 Ark. 204 (1991) (reiterating that showing the grantee the deed can effect delivery despite grantor’s possession)