Smith v. Fox

289 P.2d 126

Opinions

BLACKBIRD, Justice.

This action was originally commenced May 10, 1952, as one for partition, by plaintiff in error, O. T. Smith, as the alleged owner of an undivided one-fourth interest in a tract of land containing approximately 150 acres, situated in Sec. 6, Township 3 South, Range 6 East, Johnston County, Oklahoma. As far as concerns the issues herein, one Cynthia Talley, now deceased, was the tract’s original owner, together with other real estate situated in Seminole, Love and Murray Counties. One of these properties was involved in the case of Green v. Votaw, 192 Okl. 136, 134 P.2d 367. The land involved here was the only property described in one of these regular warranty deeds, dated November 7, 1933, executed by said owner and her husband, T. F. Talley, as grantors, purporting to convey separate parcels of their real estate to certain of Cynthia’s four grandnephews, who were sons of Lonnie and Marie Votaw. The one of them named as grantee in the deed to the land here involved is Cecil Votaw. Sometime after the deed’s execution it was altered by someone (whose identity was never established) by the insertion between the legal description of the land and the habendum clause of said deed, the following:

“This deed is a gratuitous grant, conditioned: (1) That same should not take effect until after the death of grantors herein, and grantors shall have absolute control over said land receiving the rents and profits there-, from, and shall have power, during their life time, to make good and valid conveyances, by deed or. otherwise. Such conveyance, if made, shall become operative on the interest conveyed, and should grantors convey by deed, then this deed shall become null and void. (2) If this estate vests in the grantee, by the deaths of the grantors, then sai4 grantee is prohibited from making any manner of conveyance until said grantee reaches the age of twenty one years, notwithstanding covenants to the contrary herein.”

On the same date as that of the deed the Talleys, who had no children, made a joint and mutual will, naming the survivor of the two as sole executors, without bond, and expressing the “desire that all property, real as well as personal, of which” they or either of them might die possessed, should “pass to the survivor in fee simple * * *

Thereafter, almost four years later, or on July 9, 1937, according to the county clerk’s records, the phove described deed was received by that official, altered as aforesaid, for filing and recording, from the husband T. F. Talley, with instructions that it be forwarded, after recording, to the grantee therein named, whose address was given as Box 312, Sulphur, Oklahoma, and, who at that time was a minor. Cynthia Talley apparently continued in possession of the land, however, and upon her death a few days later, on July 22, 1937, T. F. Talley procured the admission of the above described will to probate, and, apparently without regard to the above described deed, the land was administered upon as a part of said testatrix’ estate.

Thereafter, by deed dated December 28, 1937, the said T. F. Talley purported to convey the land in question, together with the Seminole, Love and Murray County properties, to Cvnthia’s same four grandnephews jointly, or in equal undivided shares. Thereafter, when the administration of Cynthia’s estate was completed, the probate court, by decree of March 28, 1938, distributed all of said properties to T. F. Talley, as sole devisee under the will, without mention or recognition of either of the above described deeds. Thereafter, Talley exercised dominion over, and received the income from, the land until he died in 1938. A-ftér his death, a guardian was appointed for the four' minor grandnephews. ' Said guardian and his successor, Mamie Votaw, the boys’ mother, handled the properties deeded the boys by Talley as if they were the joint property of all four and apparently divided the income therefrom in equal shares. In other words, from the way the guardians administered the properties they seemed to recognize the deed executed by Mr. Talley in 1937, rather than the one executed by both him and his wife in November, 1933.

In 1949, after the Votaw family had moved from Oklahoma to Cottle County, Texas, a Dr. W. W. Fox of Oklahoma became interested in purchasing the Johnston County land here involved. On the theory that the Talley deed of November, 1933, vested the title thereto solely in Cecil Votaw, Fox, while Cecil was only eighteen years of age, procured him to obtain a court decree in Cottle County, Texas, purporting to confer majority rights on said minor, which decree is admittedly invalid and ineffectual for that purpose. Fox then, on September 12, 1949, entered into a contract with Cecil Votaw to purchase this land from him for $2,000 with the provision that the title thereto would be cleared at the seller’s expense and deducted from the stated consideration. The next month, Cecil gave Fox a deed to the land pursuant to said contract, and received $500 of the agreed consideration. On two later occasions, ' once when Cecil was twenty years of age and again on September 21, 1951 (one day after he became twenty-one) Fox obtained successive deeds from him covering the same property.

When the first purported trial was had on the petition for partition of O. T. Smith, who deraigned his title through Mr. Talley’s deed of December, 1937, and a subsequent deed from one of the Votaw sons, Arles, to the undivided one-fourth interest thereby purportedly conveyed to him, Smith obtained a default judgment decreeing him, along with the three other Votaw sons, including Cecil, to be the owners of undivided one-fourth interests each in the land and ordering its partition. No specific mention or determination was made in said judgment with reference to the previous Talley deed of November, 1933, in which Cecil Votaw was named the sole grantee of the entire fee. After the commissioners appointed by the Court had determined the inadapatability of the land for partition and had made their.report, or on April 6, 1950, the aforementioned default judgment was vacated on motion of Cecil Votaw, and Dr. Fox was allowed to intervene in said action. In his pleading, Cecil Votaw, on the basis of the deed of November, 1933, claimed the entire fee simple title to the land. In replying, Smith asserted that because of the peculiar language of said deed it was not an instrument of present conveyance, but was testamentary in character and therefore ineffective to vest title in its grantee. Thereafter, Fox pleaded his purchase from Cecil and claimed title to the land by his deed dated September 20, 1950, from said vendor. When the case was • thereafter tried in October, 1950, the court, without any evidence that Talley’s deed of November, 1933, had been altered after its execution, rendered judgment on the basis of Talley’s 1937 deed determining that Fox, 'Smith and the two Votaw sons, Thomas and Ulysses, were each the owners of undivided one-fourth interests in the land. From said judgment, Fox perfected an appeal to this Court, but while said appeal was pending, his attorney, by accident discovered the case of Green v. Votaw, supra, learned that the special language, testamentary in character, hereinbefore described, was not in the Talley deed of November, 1933, when it was executed, and thereupon filed a petition for a new trial on the ground of such newly discovered evidence., Said petition was granted, and Fox’ appeal to this. Court from the former judgment was dismissed. Upon the new trial of the case, Fox, on the basis of the Talley deed of November, 1933, and his most recent deed, dated September 21, 1951, from Cecil Votaw, was determined to be the sole owner of the land. From said judgment O. T. Smith and Cecil’s brothers, Thomas and Ulysses, have perfected the present appeal. They will hereinafter be referred to as appellants, while Dr. Fox and Cecil Votaw, defendants in error, will be referred to as appellees.

Under their Proposition II, appellants continue their attack on the deed executed by Cynthia "Talley and her husband in November, 1933, as a conveyance of title. They say it was insufficient for that purpose because in order to vest title a deed must be delivered as well as executed, and here the testamentary language which rendered said deed invalid had already been written into it at the time of its filing, recording and subsequent delivery. Though recognizing and conceding that this language was not in the deed when it was executed, appellants say that as far as 'the record shows, it was never delivered in its original-state, or until altered, and therefore, as originally drawn and executed, it can have no effect as a conveyance. We do not agree. Since it was established that there was nothing in the deed to invalidate it at the time it was executed, we think it became effective as a conveyance, in accord with the intention of its grantors (at that time) upon its delivery at' a later"’date, and without regard to its alteration subsequent to its execution. When the deed was executed, it constituted evidence of the strongest character that it was the intention of its signers to thereby Convey to Cecil Votaw the entire fee ⅛ the land. Title thereto was previously in Cyn-tha Talley’s name, and as far as the record shows, if was hers to convey to whomever she pleased, without her husband' also signing it. When said deed_ was delivered to the-husband, T. F. Talley, for recording and forwarding to the grantee, Cecil Votaw, it then became absolute as a conveyance. That it was thereafter altered could not affect 'it as such conveyance, unless such alteration was done with knowledge, acquiescence, consent or ratification of Cynthia Talley, who, with the title solely in her name, was the only one who could convey such title. In this connection see Green v. Votaw, supra, 2 Am.Jur., “Alteration of Instruments”, secs. 23, 37, 39; 16 Am.Jur., “Deeds”, sec. 29; Annotation, 67 A.L.R. 364. There was no evidence that any such consent was given or ratification obtained, or that the deed was, after alteration, redelivered by Cynthia to her husband for recording and delivery to Cecil Votaw. Of course T. F. Talley’s subsesquent execution of the purported deed of December, 1937, indicates that at that later date, it was his desire that the title should be vested in all four of the Votaw boys jointly, but his execution of that deed was a nullity in view of the previous vesting of the entire fee simple title in Cecil Votaw by the previous deed. That previous deed having been delivered and the title thereby conveyed having already vested, there was no interest in said land for him to obtain by devise upon his wife’s subsequent death. By the same token, he then had no right or interest in this particular land to convey to anyone by his purported deed of 1937.

Appellants further argue that ap-pellees are now in no position to claim under the deed of November, 1933. They say that the question of its validity was determined adversely to appellees by the District Court’s judgment of October, 1950; and that when appellees dismissed their appeal to this Court from said judgment, that determination became final. This argument, however, ignores the significant fact that said appeal was dismissed only when it became apparent that the District Court’s judgment was to be superseded and nullified by the new trial said court granted appellants on account of newly discovered evidence as here-inbefore noted.

Under their Proposition III, appellants urge that the principles which appeared in the doctrine of election to take under wills, should apply to this case. In their argument they refer to the evidence showing that in the Votaw boys’ guardianship the property involved herein, as well as the other properties deeded to them by the Talleys, was treated as if the boys owned equal undivided shares in all of them; and they argue on the basis of this and the further fact that Cecil Votaw, like his brothers, received a one-fourth share in the net income from all of the properties, that this constituted an, “election” on his behalf to recognize the deed of December, 1937, instead of the one of November, 1933. We cannot agree that the doctrine of election and the receipt of benefits thereunder applicable to those with rights of inheritance in a testator’s property, should be extended to such a situation as the one involved here. As hereinbefore pointed out, after the entire fee simple title to the land was vested solely in Cecil Votaw by the deed of November, 1933, there was no interest that could be conveyed in that property by the subsequent deed of December, 1937, and the later deed was wholly insufficient as to that parcel. After such vesting of the title, no conduct on the part of Cecil Votaw’s guardian or Cecil Votaw himself, short of the execution of an instrument competent, under our statutes, to alienate or convey title, could diminish the interest that had vested in him by the first deed. Cecil Votaw’s position was thus vastly different from that of the surviving spouse who may take property either under a will or under the laws of intestate succession, and may elect under which he or she will take. In that kind of a situation the surviving spouse’s right accrues by reason of said spouse’s death; and his or her election as to whether she or he will claim under the will or under the law is determinative of the interest he will receive. But this is not true where a party’s right, title and interest vests by deed and is measured entirely by the effective terms thereof. In the latter situation, no election the grantee might make, nor benefit he might receive from other properties, can affect the quantum of interest with which he has become vested -by that particular conveyance. We see no application to the present case of the case of Carlile v. Harmon, 179 Okl. 303, 65 P.2d 495, relied on by defendants. The testimony in the present case indicates that Mamie Votaw would have tried to see that her sons benefited equally in respect to the income from the various real estate interests deeded them by the Tal-leys, no matter how their interests had been described in the . conveyance. B.ut such desire or endeavor, either on her part, or on the part of the boys themselves, or their guardian, was wholly incapable or powerless to affect in any way the deraignment of title to the property or the quantum of either’s interest in its fee. Whether Cecil Votaw’s receipt of the benefits he is said to have received as a result of the above mentioned conduct, came about because of a misapprehension as to the validity of the original deed of November, 1933, or for whatever reason, such receipt could not affect said deed’s validity, nor change the quantum of interest he was thereby conveyed. In this connection, see Annotation, 33 A.L.R. 601, 602. Accordingly, the doctrine of election of remedies for which appellants cite Vose v. Penny, 78 Okl. 238, 190 P. 97, has no application to the present case.

Appellants say that the fact that Cyntha Talley was still in possession of the land at the time of her death in July, 1937, was strong evidence that the deed of November, 1933, was never delivered in its •original form. This contention does not take into account the absence of any evidence indicating when that deed was turned over to Mr. Talley for filing, recording and delivering. For all that the record shows, this may not have been done until the day it was recorded, which was less than two weeks before Cynthia’s death in 1937. For this reason, we do not consider the fact that the minor, Cecil Votaw, or some adult or legal representative in his behalf, had not yet assumed possession of the land at the time of Cynthia’s death, controlling or conclusive evidence that after originally executing the deed and before turning it over to her husband, Mrs. Talley decided to cancel, revoke or repudiate her original absolute grant of the entire fee simple title contained in the deed as originally drawn.

Appellants also assert that, under the above described circumstances, the delivery of the 1933 deed from Cynthia Talley, through her husband, to Cecil Votaw was never complete because it was not accepted by said minor grantee. For such argument to be tenable, the facts must be sufficient to overcome the presumption of acceptance by the grantee which attends delivery of a conveyance for his benefit. See Green v. Votaw, supra, and 16 Am.Jur., “Deeds”, sec. 389 et seq. We have examined the evidence with this in mind, and have concluded that it is insufficient to render erroneous or clearly against the weight of the evidence, the trial court’s judgment, which, in effect, held that said presumption of acceptance was never overcome.

In the remainder of appellants’ argument they deal, with other matters included in what they call the “equities” of the present situation and not only cast reflections upon the amount of the consideration contracted to be paid by Dr. Fox to Cecil Votaw for the land in question, but they say the latter will be unusually fortunate if he derives any more out of the sale to Fox than the $500 already paid him, by the time the cost of past and present litigation necessary to clear Dr. Fox’ title is deducted from said consideration in accord with their contract. We do not think such complaints have any standing coming from appellants. Cecil Votaw is not complaining of any inequity or overreaching in Dr. Fox’ contract with him, and it would appear that he is the only one who would have any legal right to so object. We therefore deem such argument unworthy of any consideration.

In accord with the views here expressed the judgment of the trial court is affirmed.

. JOHNSON, V. C. J., and CORN, DAVI-SON and O’NEAL, JJ., concur. HALLEY, C. J., and WILLIAMS, J., dissent.