81 Kan. 33 | Kan. | 1909
The opinion of the court was delivered by
Elsie Norton, formerly Elsie Smith, brought this action in ejectment and recovered judgment. The defendant brings error.
The land in controversy, which is a farm of 200 acres, at one time belonged to Isaac Lamphier, who died in 1906, at the age of eighty-six years. The plaintiff had been a member of his family for twenty-one years. She went to live with him and his wife when she was sixteen years old, under an agreement that if she would remain with them until their death they would leave her all their property. They had no children of their own and treated her as one of the family. The undisputed testimony shows that she faithfully fulfilled her part of the agreement. She helped with the usual housework, milked the cows, fed the stock,
“He said he wanted it left with us to be delivered to Elsie Smith in case anything happened to him, or in case he died. I don’t remember the exact language, but simply in case that he died, or in case of his death, he wanted it delivered to her.”
After Lamphier’s death the deed was delivered to her by Mr. Mullaney and placed on record, and this action was brought.
The defendant, who is a brother-in-law of Isaac Lamphier, claims title by virtue of a warranty deed executed by Lamphier in 1903. He testified that the deed was handed to him by Lamphier at the latter’s house in May, 1903; that he paid one dollar to him at the time and asked him if it was his desire that the
There was some evidence tending to show that in 1903 Isaac Lamphier changed his mind and concluded to dispose of all his property in his lifetime, and to make a different disposition of the land in controversy. In the deed to the defendant he included not only the 200 acres but 80 acres of other land, to which the plaintiff has made no claim. About this time he conveyed all the rest of his property to the plaintiff. It consisted of two pieces of town property and some notes secured by mortgages, and he gave her the immediate possession of both real and personal property.
The defendant has cited a great many authorities in reference to what will constitute a valid delivery of a deed to take effect on the grantor’s death. But the main contention is that the evidence was more favorable to the defendant than to the plaintiff. In view of the general finding of the trial court on the facts, we
“But where he deposits it with a third person, to be turned over upon his death to the grantee, this is a good delivery if he thereby surrenders all control over it, but not otherwise.” (Page 245.)
In several particulars the facts in that case differed from the facts in the present case. The deed executed by Young reserved to him the use and income of the property, during his life. A delivery directly to the grantee would have had the same effect, so far as the grantor’s rights were concerned. In the opinion in that case some weight is given to the fact that the grantor conveyed other property to other heirs as a circumstance shedding light on his probable intentions concerning the conveyance; and it is argued in this case that the fact that Lamphier, after the execution of the deed to the plaintiff, apparently altered his intention not only with respect to the land in controversy but determined to dispose of all his property in his lifetime, and conveyed this land to the defendant, who took possession during the grantor’s lifetime, and the further fact' that he conveyed all his other property to the plaintiff, should be considered as controlling circumstances in determining his intention at the time he executed the first conveyance. In the Young case the fact that the grantor had conveyed other property to other heirs was not held to be controlling, but only a circumstance to be considered in connection with the further and more important fact that the deed in terms reserved to the grantor a life estate. Moreover, the
In arriving at the conclusion that there was an effective delivery of the deed in the Young case considerable weight was attached in the opinion to another fact, in which the cases are precisely alike, and that was the absence of any evidence, or,' as the opinion in that case stated, “convincing evidence” (p. 251), showing any intention on the part of the grantor to retain control over the deed. While the evidence here shows that the grantor exercised control over the property and made a subsequent deed purporting to convey the title, our attention has not been directed to any evidence tending to show that at the time he deposited the deed to the plaintiff he retained any control or dominion over it. The whole controversy turned upon the intent with which he deposited the deed in the hands of the custodian. This could only be determined from the facts and circumstances in evidence. We interpret the language “in case anything happens to me” the same .as though the grantor had said “in case of my death” or “when I die.” Under some circumstances the use of the same language would more naturally mean something different. If, being about to go upon a journey or about to submit to a dangerous surgical operation,, he had said “in case anything happens to me,” the circumstances would naturally indicate that he had
The general finding of the court precludes us from granting any relief to the defendant. Every inference favorable to the plaintiff which may be drawn from the testimony must be indulged, including a finding that it was the intention of the grantor that the deed should take effect at once, and that he parted with all dominion and control over it. (Wuester v. Folin, 60 Kan. 334; Doty v. Barker, 78 Kan. 636.)
The judgment is affirmed.