Jack Garrett v. Thelma Garrett
302 P.3d 1061
Idaho
2013
Check Treatment

*1 arguments will this Court consider mortgage as first less the IM priority over petition re- for the first time on for good is raised IM default encumbrance —where been subsequent hearing after a decision has rendered. against en- faith encumbrancer rehearing there- petition were first is the Gunters The Gunters’ cumbrancers —is if not the first to The were fore denied. to record. Gunters Therefore, their deed of trust is record. mortgage.

junior to the IM

VI. Conclusion good IM faith Court holds

This property; both of the Gunter

encumbrancer money purchase and IM

the Gunters property; the IM liens the Gunter GARRETT, the Gunters’ Plaintiff- mortgage priority takes over Jack L. judgment of trust. The Counterdefendant- deed of Appellant, is, therefore, vacated and remanded with this entry judgment consistent v. Opinion. appeal are awarded Costs on party. par- GARRETT, Neither Insight prevailing Thelma V. Defendant- Counterclaimant-Respondent. attorney appeal. fees on ty requested No. 38971. BRUDICK, Justices Chief Justice EISMANN, J. HORTON JONES Idaho, Supreme Court of concur. Boise, February 2013 Term. Rehearing—

On Denial of Petition for 11, 2013. June April JONES, W. Justice. Pat and Monica Gunter

Respondents,

(“Gunters”), petition rehearing this Court for matter.

The that Idaho law Gunters contend preference for the liens of

indicates ven against

dors other liens. The Gunters con

tend that Idaho should follow law priority grant

other states which vendor money mortgages.

purchase See Sutton Mueller,

Funding, LLC v. S.W.3d Holding ALH (Mo.Ct.App.2009);

704-05 Co. (Colo.2000); Telluride, 18

v. Bank Clement, Giragosian A.D.2d (N.Y.A.D. 3 Dept.1993).

N.Y.S.2d 983

The thus contend for the Gunters they

first had a vendor’s lien on the time take priority. which This should money theory purchase

a distinct theory orig ease

mortgage on which this

inally brought. This Court will consider on appeal. raised for the first time

issues Foods, Springs Spackman, Inc.

Clear Much

Idaho *2 Office, Boise,

Rainey appellant. Law Rainey argued. Rebecca A. Office,

Troupis Eagle, respondent. Law Troupis argued. Christ T.

HORTON, Justice. dispute This case arises from (the nature of real Middleton joint taxes from their in Middle- property) located property or checking accounts. ton, originally owned Alva Garrett Idaho. most of it to retire but parcel, sold 80-acre Alva and Thelma into entered Alva was married of his debts. some provided the sur- contract for wills Garrett, owned but viving spouse would take the entire estate. *3 quit- a Alva executed separately. In survivor, estate Upon the death of the the deed) (the to 1990 the Middleton claim deed among equally the seven would divided to Alva Alva Garrett property from Garrett family. The Mid- children of their combined In executed Thelma Alva and Garrett. only property property was the real dleton deed) (the 2006 quitclaim another deed by their owned estates. Garrett, to Alva Jack property from Garrett February quit- a In Alva executed gave the to Jack’s Alva deed

Alva’s son. conveying his inter- purportedly claim deed brother, John, record not to with instructions son, property in the to Jack est Middleton his in March death. Alva died it until Alva’s until Thelma unaware of this Garrett. was filed deed was recorded. Jack and the gave to after Alva’s death. Alva the deed Thelma, step-mother, par- against his to suit Garrett, brother, Jack’s and instructed John trial, the After a bench property. tition the after Alva’s death. him to record until deed transmuted that the 1990 court ruled kept in March the deed recorded it John community, separate from to property days After the two after Alva’s death. It ruled in invalidating the 2006 deed. deed, manage- preparation of the Alva intent to had no alternative property of Middleton went on as ment gave when he John the transfer title in to live Alva and Thelma continued before. deed, af- making the invalid. We home, pay to them Jack continued firm. farming the property. rent for August partition Jack filed suit to I. FACTUAL AND PROCEDURAL property. argued Alva had Thelma BACKGROUND by executing the property transmuted argued lived the Mid- 1990 deed. Jack that the 1990 deed Alva and Thelma Garrett on years tenancy a and the property during their entire 32 had created common dleton passed away in 2008. 2006 had Alva’s one-half marriage until Alva deed transferred trial, they Following They previously, and interest to a bench were each married Jack. had to prior from those mar- district court ruled that Alva intended each had children brought property from to riages. They separate separate also real transmute the each they he to marriage. community When were when deeded property to married, initially parcels owned three of himself and Thelma in 1990 that because Alva transfer, time, his consent property. real Over he sold all of Thelma did not to property. it was The court found that property except the Middleton void. inescapable Alva hardship financial forced him to sell that one reason for “[i]t portion remaining property to both significant of the Middleton to transfer his off obtaining acres of Alva and Thelma was to effectuate property as well. He retained 26 property.” mortgage included the home where another on the which later, pursuant Two to this decision in Barrett he and Thelma resided. months Court’s (2010), simply quitclaim Alva deed that executed conveyed that it free to stated that the deed the district ruled regard L. to Alva’s L. Garrett to Alva consider all evidence with Alva Garrett property. prepared Alva this deed transmute the V. Garrett. himseif, consulting attorney. was introduced wheth- without The required day executing quitclaim er the bank Alva execute after mortgage. granted mortgage prop- 1990 deed in order to obtain and Thelma $20,000. ruled in the alternative that erty They were listed on The court also both validly had not been delivered mortgage documents. Alva and Thelma deed himself mortgage jointly. They paid did not intend divest paid off the also because Alva property until after his death. constitute a valid It held that an arguing appeals deed created a effective had not place taken be- cause, tenancy in although common and the 2006 deed quitclaim delivered properly party, to a delivered. third “Alva did not intend

divest himself title to the Prop- Middleton erty II. STANDARD OF REVIEW until after argues his death.” Jack the district court abused its discretion party asserting The improperly shifting proof. the burden of He prove was transmuted must the intent argues holder, that as record title he should convincing transmute evidence. presumed have been the owner and Thelma Hoskinson, Hoskinson should had prove have the burden to that the Furthermore, 80 P.3d ov argues was invalid. Thelma ercoming a presumption of valid of a produced she sufficient evidence to allow the *4 requires convincing deed also evi delivery find that a valid of Family dence. Russ Ballard & Achieve place. the deed took never Resort, Inc., Springs Inst. v. Lava Hot ment 572, 72, (1976). 579, 97 548 Idaho P.2d 79 A deed is not effective until it is explicitly “[W]here trial court has deter delivered “with intent that it operate.” shall application by mined case of the clear Perrone, 340, 344-45, Barmore v. Idaho 145 standard, convincing evidentiary this 303, (2008) 179 (quoting P.3d 307-08 Bowers must if determine the decision was Cottrell, 221, 228, 936, v. 15 Idaho 96 P. 938 by supported competent substantial evi (1908)). “The intent with which it is deliv Doe, 759, 761, dence.” In re 146 Idaho 203 important. ered is enlarges This restricts or (2009). 689, Thus, P.3d 691 trial court’s the effect of the instrument.” Id. When a finding will not disturbed unless it is grantee possesses a he enjoys pre a clearly Aragon, erroneous. Matter 120 of sumption delivery. valid of Hartley Sti v. 606, (1991) 608, 310, Idaho 818 P.2d 312 bor, 157, 160, 352, 96 Idaho 525 P.2d Bush, (citing Interest 113 Idaho of (1974). However, it may parol by shown (1988)). 492, 495 evidence that the delivery was Bar invalid. more, 344-45, 145 Idaho at 179 P.3d at 307- III. ANALYSIS 08. real delivery “[T]he test of the of a deed finding We affirm the district court’s that grantor words, is by this: Did his acts or delivery no there was valid of the 2006 deed. both, or intend divest himself of If title? delivery, regardless With no valid of the so, the deed is delivered.” Estate Skvo of property, of the nature title to the rak, (2004) 89 P.3d Thus, remains with is Thelma. it unneces- (internal omitted). quotation Thus, although sary Court to rule on the transmuta- a possession in the of grantee deed is tion issue.1 presumed delivered, validly to have been that presumption can showing be overcome A. The district court relied on substantial that there no present intent make a competent find evidence to that transfer of title. properly the 2006 deed was deliv- ered. A deed need does not to be deliv The district court found executing that ered directly grantee to be effective. giving grantor 2006 deed and it to A John did not can deliver the deed to a third Although unnecessary quirement 1. interpreted by to the determination of that deeds are to be appeal, important this we is feel it to reiterate the plain language. recognized their This Court scope holding limited of our v. Barrett when a deed is executed at behest of a bank In that case during refinancing, necessarily it is not a com- we "the of a deed executed in pletely portrayal grantor's accurate of intent. refinancing conclusively the course of does not interpreted allowing Barrett should not be purposes determine the of character extrinsic evidence in other situations where the Id. of a divorce action.” at 232 P.3d at 802. unambiguous. deed is general That is narrow re- determining delivery of the grantor’s pose of whether in escrow until the hold party to By very Drake, occurred.” Id. its Idaho relevant deed death. Cell (1940) nature, or lack thereof (citing Showalter evidence (1916)). only by way parol P. can come evidence. Wash. Spangle, 93 However, only when is valid case, quit Alva executed a or over control grantor retains dominion brother, gave claim deed and it to Jack’s happens, imme- Id. When deed. John, to after death. record Alva’s grantee and the in the diate vests estate the district court determined no direct Id. a life grantor retains estate. introduced evidence had been to a may transfer a deed grantor legally A of the once Alva’s dominion control deed to deliver person third with instructions gave the district court it to John. grantor’s death. grantee after surrounding reasoned that the circumstances takes deed circumstances Under such provided of the deed the best the oth- from the first On effect Alva’s The court found evidence of intent. hand, grantor must do- surrender er possess did not to effec title, and, if a control minion and over title. As tuate transfer of is reserved power to recall the intent, of this lack of the court cited the fact her, there no effectual him or that Alva remained on the effect, take even deed cannot and the initially unaware execution custody of the manual though it comes into *5 pay to Jack continued to rent Alva and au- grantee the and is recorded without quitclaim after the deed was even thorization. executed, Alva and exercised dominion grantor part with The intention of the to the until death. control over his title, by the circum- the as evidenced Furthermore, recognize seemed to that Jack transaction, af- surrounding the stances quitclaim deed was not intended to have must true Such intention fords the test. any effect until after Alva’s death. Jack was delivery time to as of be established of asked, you agree you me “Would with that depositary____ long living that as felt as Alva was (citations omitted). § 26A Deeds C.J.S. to treat the land as his entitled to continue Thus, delivery may satisfy party to a third regardless in being own of this deed exis requirements delivery, for a valid but “Yes, responded, I tence?” To which Jack in- question remains to the fundamental as guess.” argues that all of facts these delivery grantor of the third upon tent to necessarily not inconsistent are with party. divesting of the re himself while by The intent to deliver is shown taining a trial “[i]f life estate. surrounding “the the transac circumstances findings evi court based its on substantial Crenshaw, tion.” Crenshaw 68 Idaho dence, conflicting, if the evidence is even (1948). beyond “It findings will not overturn those controversy that the evidence of McCandless, appeal.” Borah v. In other must come without deed. Because words, upon nor never its face a deed shows finding that the district court’s Alva lacked parol delivery, the terms thereof supported title was transfer necessarily admit evidence thereof must evidence, competent its substantial question of arises.” ted when clearly decision was not erroneous. we Barmore, 179 P.3d at 308 Idaho at judgment upon affirm the based Whitney Dewey, 10 Idaho (quoting that deliv court’s there was valid decision (1905)). addition, 80 P. ery from Alva to Jack. quitclaim of necessary for a deed is “[s]ince validity, any admissible deed’s evidence is IV. CONCLUSION if it indicates the absence of Therefore, parol judgment affirm the the district evidence rule does We pur- used court. to Thelma. bar admission Costs Chief Justice BURDICK Justices J. concur.

EISMANN and JONES JONES, specially concurring.

W. Opin-

Although majority concur with I

ion there is to the extent holds no valid deed in this case and there-

fore at issue the title remains Thelma, separately only

with I write clari- disagree

fy that I with footnote 1 in the majority

majority Opinion regarding the

Opinion in Barrett v. (2010), holding is a P.3d 799 there general requirement exception

narrow interpreted by deeds are their case,

plain language. this Court extrinsic evidence was admissible

prove though grantor, the intent of the even un- of the deed clear

ambiguous. I dissented in that case on

grounds justification there was no is, fact, in when the deed clear and I

unambiguous to its effect. continue to position

adhere to that and therefore want to by concurring

make it ma-

jority my Opinion, concurrence in- does not

clude the content of the footnote that there is

or should a narrow rule unambiguous

that clear deeds should

interpreted the deed rath-

er than extrinsic evidence. Idaho, Plaintiff-Respondent,

STATE of CORNELISON,

Jesse Scott

Defendant-Appellant.

No. 39616. Appeals Idaho.

April 2013. July

Review Denied 2013.

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