93 Kan. 579 | Kan. | 1914
The opinion of the court was delivered by
The appellant, Elizabeth C. Ross, began this action to quiet her title to certain land situated in Douglas county of which she was in possession. From the facts as found by the trial court it appears that on April 22, 1904, W. C. Ross was the owner of the land in question, which' was of the value of about $2500 and was practically all the property which he did own. He was then sixty-nine years of age and not in rugged health. His wife had died about a year before that time, and while they had no children of their own, the appellees, Mrs. Nellie D. Perkins and Mrs. Ida M. Stewart, who were nieces, had been members of the family for a considerable time and had been treated to ■a great extent as their own children. On the day mentioned, in accordance with a prearranged plan, Ross conveyed an undivided one-hálf interest of his property to each of the appellees in consideration that each should pay one-half of his debts and funeral expenses at his death and that they should erect a $200 monument
“It is especially understood that should I marry during my life time that the property thus deeded is not to be sold or incumbered during the life time of my wife, should I elect to have one, and that in such case you are to meet one-half of her funeral expenses, and that she is to retain undisturbed possession and use of same during her natural life time, and after her death and burial you are to inherit one-half of personal property then on hand.” ; .
The deeds were placed in separate envelopes, which were sealed and the names of respective appelles endorsed thereon, and these, in turn, were inclosed in a large envelope and delivered to Henry Benson, a friend of the grantor, who was an officer in a Lawrence bank.
It appears that early in February, 1904, Ross began a correspondence with the appellant, then a resident of the state of Washiiigton, which led to a marriage engagement, and it -was arranged between them that she shoüld come on to Lawrence, arriving thére on April 20, 1904, when 'they would be married. She Came, but did not arrive until April 23, and bn that day they were' married. Thereafter "they lived together in the Ross home on' a part of the land in question until Ross’s death oh September 29,1911. During this time she sold some property of her own for $500 and expended $200 of the amount bn the Ross land and gave the balance of it to hér sons. Before her marriage to Ross she had a general knowledge that he owned some land, the exact extent of which she did not know. Shortly after the marriage she learned that he had made some arrangement as to the property, but did not know the exact disposition made of it until after his death, but she supposed all the time that he had made a will by the terms of which she was to have only a life interest in the property. On the day after his death the appellee, Mrs. Perkins, obtained the deed executed to her from the custodian, Mr. Benson, and placed it on record, and the
From all the testimony in the case, none of which has been brought up on this appeal, the court found that the deeds had been legally delivered to the appellee; and another finding was that the conveyances operated as a fraud upon the marital rights of the appellant. It was decided by the court that the deeds should be set aside only so far as they tended to defeat the rights of the appellant to inherit a one-half interest in the land, and it was adjudged that an undivided half of the land was owned by appellant and that each of the appellees had an undivided quarter in the land, and, further, that the life estate provided for in the deeds should be terminated by the judgment.
The first contention of appellant is that the court erred in holding that there was a valid delivery of the deeds. It is true, as appellant contends, that before a deed can operate as a transfer of title there must be an intention that it should become effective as a present conveyance, and this, intention is to be obtained from the words and acts of the grantor. It is likewise true that a complete legal delivery implies a surrender of control of the instrument by the grantor and an assent or acceptance by the grantee. (Wuester v. Folin, 60 Kan. 334, 56 Pac. 490.) A formal manual delivery of the deed, however, by the grantor to the grantee is not essential, nor is it necessary that any set phrase should be used as a declaration of intention. (Kelsa v. Graves, 64 Kan. 777, 68 Pac. 607; Bremyer v. School Association, 86 Kan. 644,122 Pac. 104.) It is settled, too, that if the grantor deliver the deed to a third person with the intention to part with control of the instrument and to divest himself of title, it will constitute a transfer, although it is agreed that the deed shall not be recorded during the lifetime of the grantor. (Zeitlow v. Zeitlow, 84 Kan. 713, 115 Pac. 573.) It has also been held that delivery of a deed to a custodian, to be passed
The facts and circumstances of the case tend strongly towards proving an actual delivery of the deeds. After they had been executed and placed in envelopes with the names off the grantees thereon, they were handed by Ross to Mrs. Perkins, who kept them until they drove to the bank, when she turned them over to Ross, who carried them in and put them in Benson’s hands with the request that he keep them. Both were placed in a larger envelope, on the outside of which the name of Ross was written. There is a fair implication that Ross parted with control of the deeds and that there was an acceptance of them by the grantees When he handed them to Mrs. Perkins, and that he was acting for the appellees when he carried them into the bank and turned them over to Benson. However, if it be inferred that control of the deeds was not surrendered until he handed them to Benson, there are sufficient facts to support a delivery when he placed the deeds in the hands of the custodian with the statement that he would learn from the inside of the envelopes what was to be done with them. That Ross intended that the deeds were thereafter to be within the control of the grantees and not of himself is also shown by the remark to Mrs. Perkins, “When you record yours, you may record Ida’s also.” As shown by the authorities cited, the fact that the enjoyment of the land was to be postponed until Ross’s death and until the death of the second wife, in case he married one, does not militate against the theory that the delivery of the deeds was
Assuming, as we must, that there was an effectual and valid delivery of the deeds, the next contention we have to meet is that if the transfer constituted a fraud on the marital rights of the appellant, so far as the transfer prevented her from inheriting one-half of the land, it was ineffectual for any purpose. It was held by the court that the deeds were valid and binding as to one-half of the land, but that the transfer of more than one-half qperated as a fraud on the marital rights . of the appellant. It is not easy to see how the transfer of qne-half of the land, nor even the whole of it, can be regarded as a fraud upon the rights of appellant. She and Ross had been neighbors in Douglas county for many years, and it is fair to presume she was acquainted with his situation and financial condition. It appears she did not know exactly what disposition he had made of his property, nor just what provision had been made for her, but from what she had learned she supposed that he had made a will devising the property to others, but by the terms of which she was to have a life interest in the property. While the writings executed by him were deeds instead of a will, they were intended to accomplish substantially what she understood had been done, that is, there was a transfer of the fee of the land to others, and the transfer did, in effect, give her a life estate in the property. By the terms of the provision she was “to retain undisturbed possession and use of the same during her natural life time.” During her life the grantees were not to have the use or possession of the property, and could not transfer, incumber or embarrass her life interest or the posses
None of the errors assigned can be sustained, and, therefore, the judgment of the district court will be affirmed.