89 Kan. 892 | Kan. | 1913
The opinion of the court was delivered by
In an action for the partition of a half section of land owned at the time of his death by C. W. Shumway, who died intestate in 1890, his six children were parties, and the only controversy was whether a deed from him to his oldest child, R. B. Shumway, was intended as a preferential gift. The trial court treated it as an advancement, and the grantee appeals.
The deed covered a quarter section of land. It was signed and acknowledged in 1886, but remained in the hands of the grantor, who indorsed upon it the words “To be delivered to him on his 21st birthday, April 18, 1893.” On November 26, 1889, he caused it to be recorded. The appellant concedes that the' usual presumption is that such a deed is intended as an advancement, but he maintains that here the undisputed evidence overcame this presumption. No special findings
The appellant contends that error was committed in admitting evidence of declarations supporting the advancement theory made by the grantor after the execution of the deed. A conflict of authority with regard to the admissibility of such evidence is noted in Plowman v. Nicholson, 81 Kan. 210, 215, 216, 105 Pac. 692, 106 Pac. 279, where citations are made. (See, also, Thornton on Gifts and Advancements, §§ 584, 585.) In this state there is no hard-and-fast rule that the declarations of the grantor, offered to show his purpose in making a deed, may never be received after its execution. This appears from the case just cited, especially from the quotations there made from Brook v. Latimer, 44 Kan. 431, 24 Pac. 946, 11 L. R. A. 805, 21 Am. St. Rep. 292. (See, also, Gordon v. Munn, 87 Kan. 624, 125 Pac. 1.) The principle upon which it is held that subsequent declarations of a grantor, in disparagement of the title acquired by the grantee, are inadmissible, does not apply. When a parent conveys land to his child he parts absolutely with the title, whether he intends a gift or an advancement. The suggestion has been made that his subsequent declara
Much of the testimony objected to related to conversations had with the grantor after the deed had been signed and acknowledged, but before it was recorded. During this period it was within the control of the grantor, and words then spoken by the grantor throwing light upon his purpose were clearly competent; they were uttered before the completion of his act, and gave character to it. The deed doubtless must be regarded as delivered at the time it was filed for record with the register of deeds. (Pentico v. Hays, 75 Kan. 76, 88 Pac. 738; Note, 9 L. R. A., n. s., 225.) Even if declarations made after that time were incompetent, their admission would not justify a reversal, since the case was tried without a jury and there was sufficient other evidence to sustain the finding. (McCready v. Crane, 74 Kan. 710, 88 Pac. 748.)
The judgment is affirmed.