*1 intelligence discretion attack this jury’s verdict in
-court after the here. needs no discussion
McDonough, crockett, wade JJ., CALLISTER, concur. RECEIVABLES, INC. and
CONTROLLED Harman, D. Plaintiffs Appellants, Harman, wife, and Lila
Don HARMAN Harman, Har aka Blake William Blake wife, man, De and Colleen Respondents. fendants and
No. 10403.
Supreme Court of Utah.
May 4, 1966.
McKay Burton, Richards, & H. Reed City, McKay, ap- Barrie G. Lake Salt pellants.
Mabey, Ronnow, Marsden, Madsen & Madsen, City, A. Lake Gordon for re- Salt spondents.
CALLISTER, Justice. Plaintiff, Claude and his D. interest, Controlled successors in Receiva- bles, Inc., quiet action initiated this title parcel to a land Lake situated Salt County deeds, and to have certain under an which defendants claimed interest as throughout years. possession of them tenants, declared null ed joint aside and set Claude, occupy the Plaintiff continued to home essence, plaintiff, In void. expenses he pay taxes and maintenance invalidity on based prior or done was no ground that there deeds. take effect were intended to deeds in- upon and were therefore his death negotiated the sale of the testamentary dis- attempt make valid 8Y¡ parcel; acre with this connection court position property. The trial of his transaction, he obtained correction deed summary motion defendants’ brother, wife, Franklin, from his and his the action. judgment dismissed again designated which the father and four Plaintiff, Claude, sole was the owner grantees joint children as tenants. The these, parcels land. one of two On quitclaim children executed acres, a home consisted of which 1^4 vendees in connection with this sale. wife, her until he resided with his where re- Claude decided to sell the other his children. The demise requested maining parcel and acre ground acres parcel consisted I14 81/3 quitclaim deeds; children to two execute smaller northeast to the was situated *3 complied, of the and children but Blake parcel. refused, Don legal thus this action was widower, Claude, in According to commenced. resid- minors children were still while his home, the accepted he ing him in this Plaintiff time the with contends at the of and joint and sister-in-law execution of the in advice of his brother deeds which ar- conveyancing tenancy created, participated in certain his children he with was any he would passing present understood had no intention of which rangements, death, equal merely property in the provide, in his interest but the event of among chil- property utilizing his a device brother had ad- which his of his division only upon its vised him would take effect probate and attendant dren and avoid Harman, a death. Don and Blake the de- Claude, executed expenses. grantor, as assertion, fendants, dispute brother, as their father’s to his Franklin deed strawman, they knowledge of Franklin, and claim that have had acting a grantee. as that he had and the deeds since childhood and grantees, a deed to executed had an inter- told that all the children children, joint tenants them his minor as four joint property ten- with him as est and not as tenants common. These he assured them could ants and that he request plaintiff’s at the were recorded signatures. their Franklin; not sell it without brother, retain- and Claude has plead- The fact court, per that Claude did not trial on the basis The by sonally facts disclosed cause the deeds to be foregoing recorded is of ings and the consequence, no respondents’ they motion were for delivered depositions, to him stamp with the summary judgment. recorder’s affixed for
thereon and possession in his remained summary judgment is A motion for more years. than were, fifteen If the deeds measure, plain this reason harsh and for fact, a brother, recorded by it was as in a must be considered tiff’s contentions agent. Furthermore, Claude’s the record advantage all doubts and most to his light by ing perfectly the brother is consistent go him to permitting in favor of resolved transaction, gran he was the trial; only mat the whole if when tee in the grantor first deed in the nevertheless, could, viewed, es is so he ter second. recovery, right should no
tablish
respect
With
to the fact that Claude
granted.1
be
motion
possession
deeds,
retained
it is of
evidentiary
discussing the
Before
little or
significance
no
in rebutting
pre
rules of law
facts,
sumption
certain fundamental
in this case. A de
livery
prime importance
generally
to one
is
regarded
cotenant
be set forth. Of
should
as a delivery
particu
to all.5 This rule is
in
asserts the
the rule that one who
is
larly applicable
in the instant
for at
by
prove
so
clear
validity of a deed must
the time of
conveyance
the execution of the
convincing
evidence.2
Claude’s children were all
It
minors.
is on
delivery,3
presumption
a deed
raises
ly
he,
parent
natural that
guardian,
as
great
is
which
entitled
should be the
custodian
the deeds.6
which can
be
controlling weight and
convincing evid
clear and
overcome
payment
Claude’s
of the taxes and
ence.4
expenses
possession
maintenance
Eccles,
mediately. People
1. Samms v.
2d
a rule do
not delib-
(1961).
erately put
P.2d 344
in the title
flaw
to their
property,
thereby handicapping its later
Northcrest,
Bank
Trust
Inc. v. Walker
&
disposal,
really
they
unless
intend to trans-
(1952).
Co.,
122 Utah
P.2d 692
person
fer some
interest
whose
*4
Allen,
303,
3. Allen v.
P.2d
115
204
Utah
placed
name is
in the record.”
thus
(1949).
p.
458
The court stated at
308
Larsen,
4.
420,
Chamberlain v.
83 Utah
29
report,
page
204
Utah
at
461 of
(1934).
“
P.2d 355
* * *
P.2d:
of
The
the
placing
deed
of others on
the names
Herr,
79,
5. Herr v.
N.J.
13
the
contrary,
to
delivery. To
in order
ef-
the
important factor
again an
delivery,
here
delivery
purpose
this
of
time
fectuate
minority
at the
his children
of
is the
Furthermore, his asser-
in
was essential.10
This court Chamber-
the transaction.
of
they
because
438,
P.2d
the
were void
Larsen,7
tion that
page
at
29
lain v.
stated
attempt to make a
were an invalid
testa-
page
at
363:
disposition
mentary
without merit.
is
the execution
grantor, after
the
“That
Halleck,11
Oregon
the
v.
court
Halleck
taxes
deed,
pay
the
of
continued
the
stated:
in
the insurance
property, carried
on the
“ *
**
fact that the owner de-
The
per-
name,
expressed to various
her
a
the execution of will
sires
avoid
the
or
of
part
sell a
all
sons a desire to
tween
property is
into
actual
consideration,
the
grantor
not,
of
when the
the
inconsistent
deed.”
grantee is
relationship
8
with
taken
be-
manner.
law
tion that takes effect
a
does
legitimate
prohibits
not render void his
If
an owner of
substitute.
an unattested
in a
*
attempt to
property
testamentary
*
[*]
disposi-
The
use
can
testimony
Finally,
that
Claude’s
vi-
disposing
find a means of
it inter
of
prior
unnecessary
pass
to his
title
vos that will render a will
he did not intend
accomplishment
practical
for the
his
of
self-serving and inconsistent
death is
purposes,
right
employ
he has a
it.
Certainly,
of
not
it is
evidence
his actions.
pre
the
a character which would overcome
The fact that
the motive of a transfer
delivery.9
sumption
contention
Claude’s
practical advantages
is to obtain the
pro-
executed to avoid
making
that the deeds were
a
one is immaterial.”
will without
4, supra.
Allen,
3, supra,
7. See
9.
v.
this
note
Allen
see note
Eschler,
con-
8. Also
Burnham v.
116
facts
see
Utah
court observed that
the
were
Woolley
(1949);
61, 66,
forgetfulness
or misunder-
sistent with
standing
Taylor,
legal
by
grantor
v.
425 the instant deeds raised a CHIODO, and Chiodo and Vincent Vincent only which could clear and be overcome Chiodo, stockholders of Ethel as former Company, Telephone on their Bear River convincing that evidence. It has been held persons other own Behalf and on Behalf of voluntary here, where, deeds are a situated, Respond similarly Plaintiffs grantees, presump- settlement to minor ents, v. tion bar- stronger is even than in a case of CORPORA GENERAL WATERWORKS gain and sale.12 TION, corporation, Bear River a Delaware corporation, Telephone Company, a Utah foregoing prop- view of the the court Telephone shares Bear River 2500 of stock of erly Company, corporation, concluded that were effec- De Appellant. fendants tive and that this is the reasonable con- No. 10473. clusion even the event of a trial. summary
lower court properly granted Supreme Court of Utah. judgment in favor of the defendants. May 5, 1966.
McDonough crockett, jj.,
concur.
HENRIOD, J., participate C. does not
herein.
WADE, (concurring) : Justice However,
I concur. I think since 1 opinion Dupler
our Yates have v. we plain
not followed Rule meaning
(c), summary U.R.C.P., effect to the that a
judgment be there should not where fact, genuine
is a issue as to a material chang-
I Rule should think that the above be
ed conform to decisions. our dissenting opinion 442, Johnson, of Justice Crockett 12. Kunkle 268 Ill. v. (1915). in Hughes McCormick, Utah, v. N.E. 279 P.2d Yates, Dupler decided March 1966. 10 Utah 2d my also concurrence P.2d 624. See