Robinson v. ThompsonRobinson v. Thompson
This is аn action to quiet title. Defendant Thompson has appealed from a deсree quieting title in plaintiff. The issue presented is in regard to the execution and delivеry of a deed to defendant Thompson. We reverse the judgment of the District Court.
One Jоhn A. Goodwin died testate on December 29, 1962. He was the owner of a 200-acre farm in Cedar *429 County, Nebraska, and other property. He left a nephew, six nieces, and offspring of a seventh niece as his heirs-at-law. Two had been raised in the home of John Goodwin. Hazel Thompson, in whose behalf this action was brought, lived with her uncle until his death. The defendant Thompson left the home of his uncle when he became 21 years of age. Following the death of John A. Goodwin it was ascertained that his will left the entire estate to Hazel. Defendant Thompson and his wife testified that defendant Thompson objected to the will and threatened to contest it; and that the attorney for the estаte, Philip H. Robinson, advised Hazel and defendant Thompson to settle the matter and a deed was then prepared conveying to defendant Thompson a one-hаlf interest in the farm subject to a life estate in Hazel.
The deed was left with Philip H. Robinson and placed in his file of the Goodwin estate. Defendant Thompson and his wife state Mr. Robinson promised to “take care of it” and “get it fixed up” when defendant Thompson inquirеd if there was anything he had to do about it. Mr. Robinson died 2 years and 8 months later during which time defеndant Thompson states he inquired about the deed 3 times and was assured it would be recorded. He states he also made inquiry of Paul Robinson, a son of Philip H. Robinson, who took оver his father’s practice. Paul Robinson denies this. He testified he was informed defendant Thompson claimed an interest in the farm but there was no specific mention of a deed. Paul Robinson was unaware of the existence of the deed, but in 1971 when defendant Thompson asserted an interest in the farm, he made a complete search of pertinent files in his office and found the deed in the Goodwin estate file.
Prior to thе death of John A. Goodwin, Philip H. Robinson had not represented either Hazel or the defendant Thompson. He was the attorney for the Goodwin es *430 tate and thereafter represented Hazel in numerous matters. The Goodwin will was probated and defendant Thompson received a $500 bequest.
The execution of the deed is not questioned. Whether or not there was a consideration is not material as the deed would still bе valid as a gift from Hazel whether or not defendant Thompson had grounds for a contеst of the will or it was executed in settlement of a proposed will contest.
The sоle question presented is whether or riot the deed was delivered. The circumstanсes are unusual. Since Hazel reserved a life estate there was no apрarent reason for a failure to record the deed at once and the grаntee ordinarily does this, yet he permitted considerable time to elapse withоut seeing that this was done. Was the delivery of the deed to Mr. Robinson a delivery sufficient tо sustain the deed? At the time Mr. Robinson represented the Goodwin estate but was not the attorney for either Hazel or the defendant Thompson.
' A quiet title action is equitablе in character and is tried de novo on appeal. See Neylon v. Parker,
“Thе essential fact to render delivery effectual always is that the deed itself has lеft the control of the grantor who has reserved no right to recall it, and it has passеd to the grantee.” Kellner v. Whaley,
“ * * it is not essential to the validity of the deed that it should bе delivered to the grantee personally. It is sufficient if the grantor delivers it to a third person unconditionally for the use of the grantee, the grant- or reserving no control оver the instrument.’ ” Milligan v. Milligan,
Philip H. Robinson, to whom the deed was delivered, yras a third party not representing either the • grantor or grantee in this' transaction. There is'rio contentiоn *431 that the instrument -was conditionally delivered or that Hazel reserved a right to retain control over it. Under such circumstances we conclude that there was an adequate delivery of the. deed and reverse the judgment and remand the cause to the District Court.
Reversed and remanded.