Opinion
Rehearing Denied Nov. 17, 1970.
Page 676
Murray, Baker & Wendelken, Gerald W. Bennett, Colorado Springs, for plaintiff in error.
Horn, Anderson & Johnson, Louis Johnson, Colorado Springs, for defendants in error.
PIERCE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here in the same order as at trial and will be referred to by their trial court designations or by name. The matter on appeal is the trial court's judgment in favor of defendant Elfreda Jones, in a quiet title action under R.C.P.Colo. 105, in which plaintiff asserted ownership of fractional undivided interests in certain properties in and near Colorado Springs, and defendant Elfreda Jones asserted prior conveyance of those interests to her by quitclaim deed.
The record shows that Julius Jones, one of four sons of Elfreda Jones, was record owner of various undivided fractional interests in the contested properties under a decree of heirship recorded after his father's death, while Elfreda and the other three sons were also record owners of undivided fractional interests in the same properties by virtue of the same decree. In 1942, however, prior to induction into the United States Military during World War II, each of the sons executed a quitclaim deed for his respective interests in Elfreda's favor.
The several quitclaim deeds were prepared by an attorney (deceased at the time of trial) who had apparently acted previously in the dual capacity of Elfreda's personal attorney and attorney for Julius when the latter served as administrator of his father's estate. Controverted evidence indicated that the attorney could have been acting in either capacity, or both, when he prepared the several quitclaim deeds; but the court found that with regard to them, he was acting solely as Elfreda's attorney.
None of the several quitclaim deeds were delivered to Elfreda personally; nor were any ever recorded. All remained in a strongbox in the attorney's office, in an envelope with the names of three of the sons typed thereon, until their discovery in 1967, one year after Julius's death. Upon their discovery, plaintiff brought the instant action to determine the status of the property, and now appeals from the adverse judgment rendered therein.
It was plaintiff's theory at trial that each of the several deeds prepared by the attorney in 1942 for execution by the individual sons, was executed solely in anticipation of the possible demise of that individual son in the War, so that his mother would receive his interests in the properties involved; that delivery of each son's deed was conditional upon his death in the War; and that none of the sons (in particular, Julius) intended then and there a present, unconditional conveyance of his interests.
In this connection, we note that Elfreda, by deposition since unable because of advanced age to appear at trial, testified as follows:
Direct Examination:
'Q. And do you know what happened then? I mean, how did (execution of the deeds) come about?
'A. Well they wanted me to have everything because they didn't know whether they would be back or not, and they all signed that they wanted me to have it all.
Cross-examination:
'Q. Yes. And the reason for these deeds was because the boys were going off to the Armed Services?
'A. That's right.
'Q. And this was the purpose for the deeds, is that correct?
'A. Yes.
'Q. And when the boys did come back, there was no further use for these deeds, was there?
'A. Well, I guess they was left the way they were in (the attorney's) office. 'Q. * * * You didn't ask the boys to sign these deeds, did you?
'A. Well, I don't remember about that. I think they could tell you that.
'Q. They would have to tell us that, wouldn't they?
'A. Yes.
'Q. And you were simply informed that they had signed these deeds in case they didn't come back from the Army?
'A. That's right.
'Q. And that was the sole purpose of signing these deeds?
'A. That's right.'
The only other evidence bearing directly upon the intent behind execution of the subject deeds was testimony by two of the sons that They had never intended to reclaim Their individual deeds upon their return from World War II.
Other evidence indicated that no son ever requested return of his individual deed; and that after execution of the several deeds, Elfreda received all income from the contested properties and exercised control over them--either personally, or through one or more of her sons--until the instant action. However, as against this, there was uncontroverted evidence that Elfreda had held the same incidents of control over the properties, and had received the same benefits therefrom, prior to execution of the several deeds; and that Elfreda and all of the sons, individually, had entered into several post-war transactions involving the contested properties (leases, etc.) as co-owners of record.
The court concluded on this evidence that the attorney was Elfreda's, and not the sons', agent in the quitclaim transactions, and that delivery of the deeds to him was delivery to her. It ruled that each son had intended to pass his interests in the properties to Elfreda when he executed his deed, and that the deeds were not 'mere pretenses of conveyance to take effect only in the case of (each respective son's) demise during World War II,' and, accordingly, quieted title in Elfreda.
Plaintiff argues on appeal that the court erred in ruling that there was a binding delivery of Julius's quitclaim deed, and conveyance of his interests. We agree.
To prove delivery of a deed, the grantee must show by a preponderance of the evidence (Larison v. Taylor, 83 Colo. 430, 266 P. 217) that the grantor parted with possession, control and power over it, for the grantee's benefit, and intended to do so presently and unconditionally, Barnes v. Spangler, 93 Colo. 254, 25 P.2d 732; and, further that he intended to pass a present interest in the property, Curtiss v. Ferris, Colo., 452 P.2d 38. Without such intent, the grantor's delivery is not binding--even if the deed is subsequently recorded, Curtiss, supra; and, further, if he intends only to convey his interest subject to a condition subsequent, which is not thereafter fulfilled, there is no conveyance. McGuire v. Crockett, 112 Colo. 552, 151 P.2d 326.
Although in the instant case we think the trial court could legitimately conclude on the evidence that each of the sons delivered his respective deed to the attorney as agent for his mother (even though the deeds were subsequently found in an envelope bearing the names of the sons), we cannot agree with the court that delivery of Julius's deed was unconditional or that he intended at the time of delivery to convey a present interest in the property to his mother. The only evidence we find in the record bearing upon Julius's intent (excluding statements by two of the other sons as to Their intent, which is not binding upon Julius), is Elfreda's deposition testimony, admitted by stipulation and quoted Supra, which clearly indicates that delivery of Julius's deed and conveyance of his interests was contingent upon his death in World War II. This contingency never came about.
Although Julius and the other sons apparently never requested return of their respective deeds after World War II, it is clear that they and Elfreda continued to treat the subject properties as co-owned (as evidenced by leases, etc., subsequently executed). We do not feel that failure to request return of his deed following his return from World War II evinces intent on Julius's part to convey a present interest to his mother three years previously when he executed the deed.
Nor do we feel that Elfreda's exercise of control over the subject properties and use of the benefits therefrom after execution of the several quitclaim deeds requires, or justifies, the conclusion that each son had unconditionally conveyed his respective interests to her; for the evidence is conclusive that she exercised such control, and received such benefits, prior to execution of the several deeds--apparently because of her sons' desire to assist in her support.
Under these circumstances, we find very strong and direct evidence that Julius did not intend to convey a present interest to his mother when he executed his quitclaim deed. Although an appellate court is normally bound by findings made on controverted evidence (Whatley v. Wood, 157 Colo. 552, 404 P.2d 537), such findings, as in the instant case, need not be permitted to stand when only slightly supported by the evidence and manifestly against the weight of the direct evidence. Archuleta Mercantile Co. v. Archuleta, 62 Colo. 512, 163 P. 964; Crowley v. Shepard, 38 Colo. 345, 88 P. 177.
We therefore reverse judgment and remand the case with instructions to enter judgment for the plaintiff as to the interests claimed.
DWYER and ENOCH, JJ., concur.