Opinion
No. 52338.
1946-07-6
SMITH v. RANCK et al.
Pierson & Pierson, of Warren, for plaintiff. Paul E. Kightlinger, of Warren, for defendants.
Action by Elizabeth M. Smith against Caroline Mae Ranck, a minor, and others to set aside plaintiff's deed conveying realty to defendant minor.
Judgment for plaintiff.Pierson & Pierson, of Warren, for plaintiff. Paul E. Kightlinger, of Warren, for defendants.
BIRRELL, Judge.
On October 8, 1941, the plaintiff executed a warranty deed without reservations to Caroline Mae Ranck at the office of D. C. Rogers, Justice of the Peace. The plaintiff took the deed with her and on October 30, 1941, secured the transfer at the County's Auditor's office and left the deed for record at the office of the County Recorder of Trumbull County where it was subsequently recorded, Vol. 437, page 445, Trumbull County Records of Deeds. The plaintiff directed the Recorder to return the deed to her which was done, and the deed has ever since remained in the possession of the plaintiff. The preparation, execution and recording of the deed were entirely the voluntary acts of the plaintiff and concerned property which unquestionably belonged to the plaintiff. The grantee in the deed is a minor, nine years of age, distantly related to the plaintiff, and had advanced no consideration for the property nor had any knowledge whatever of the conveyance. Sometime later the parents of the grantee, observing a newspaper report of the transfer called upon the grantor, thanked her for her kindness, discussed the question of transfer or inheritance tax, and endeavored to show their appreciation for this unsolicited and unknown action on the part of the grantor. The grantor continued in possession and control of the deed and of the property described in the deed. Shortly before this action was commenced the mother of the grantee was appointed her guardian by the Probate Court, and went to the property and secured from the tenant the rent under claim that her child was the owner of this property. This was done without the knowledge or consent of the plaintiff in this case. Whereupon plaintiff has brought this action to set aside the conveyance.
The following matters are disputed: As hearing upon her reason for the execution of the deed, plaintiff testifies that she is a widow possessed of some property; that she entertained great affection for her grand-niece, and had already made the grand-niece the recipient of gifts of personal property; that on her way home from Geneva she was seized with the fear that her decease might be imminent and desired to make provision for the transfer at her death of the particular property described by this deed to her grand-niece; and that while under the influence of this fear she had the deed prepared, executed and recorded with the intention that her grand-niece should have the property upon her death. She retained the deed and expected, apparently, that it would be discovered among her papers at her decease. She intended to retain control of the property during her life time and had no intention whatever of transferring the property until her decease, to the grantee. This testimony of her intention is substantiated by the fact that she did retain control of the deed, did not communicate its existence to the grantee until the grantee's parent had discovered it otherwise; and that she retained control of the property collecting the rents and applying them to her own purposes. The testimony offered of the expressions of appreciation by the parents of the grantee, and the discussion of the question of taxes are not necessarily inconsistent with grantor's statements. The parents of the grantee offered evidence that grantor had said she retained the deed because she desired to collect the rents and manage the property, and she would hold the balance of the money after paying expenses in trust for their daughter's education. They also state that some years later the plaintiff suggested that they live in the house and provide a home for the grantor, and that they sold their dairy in anticipation of this arrangement. These latter plans were never consummated because the tenant could not be ousted under the O. P. A. rulings. Plaintiff denied both these statements. The Court is inclined to think that conversations occurred involving both these subjects the purport of which was misinterpreted by the grantee's parents. Believing that the execution and recording of the deed constituted the consummated gift, their understanding of the grantor's explanation of her intention that this property would serve as a source of funds for their daughter's education, might easily have inspired the thought that grantor had said something about a trust fund. Their testimony of the actual statements of the grantor are not too clear. In the absence of positive expressions indicating that grantor stated her intention to be to make a gift without reservation as to time of taking effect, the possibility of misunderstanding and misinterpretation by the parents of whatever words were used is ever present.
If the grantor made some statement after the preparation and execution of the deed at the importunity of the parents of the grantee which were contrary to her actual intentions at the time of the preparation and execution of the deed, such a change of intention ought to have been evidenced by a corresponding change of actions with relation to the custody and control of both the deed and the property. Grantor did not alter her course of conduct in any manner. If she made such statements to the parents of the grantee and such statements were the expression of her true intention at the time of preparation and execution of the deed, then her actions never have been in accordance with such expressions of intention. The actions of the grantor both before and after the disputed statements have some bearing in determining the probability of the making of statements entirely inconsistent with her admitted course of conduct. It is possible that grantor considered the gift of the property upon her death, which she then seemed to think was imminent, would constitute a fund for the child's education. Such a statement, if made, was not inconsistent with her testimony of her intention. Consequently the Court is inclined to the belief that the evidence preponderates in favor of the story of the plaintiff to the effect that she never intended to part with the property until her death, and had caused the preparation, execution and recording of the deed solely with the thought that it was a means of transferring the property to her grand-niece at her death.
The question is whether a deed, possession of which is retained by the grantor with the intention of transferring title upon her death, operates to transfer title immediately by reason of its delivery for transfer and record, regardless of the grantor's intention. The law appears to be settled that delivery of a deed is a necessary element of the actual transfer of title, although there are many instances where delivery may be presumed. 13 O.Jur. § 58 et seq., pp. 872 et seq. Here it is admitted that no actual delivery was made. The proposition argued by counsel is that delivery for record is a sufficient delivery and that the grantor is bound conclusively thereby. We therefore must examine the question of delivery.
‘It is well settled that delivery for record is prima facia evidence of delivery, but this presumption may be rebutted by proof, for the statute makes the record prima facia evidence only.’ 13 O.Jur. § 72 p. 883.
Presumably Ohio Jurisprudence is here referring to Sec. 8557, O.G.C. (no other section having been found by the Court bearing on this subject), which reads as follows:
‘A copy of the record of a Deed or other instrument of writing, duly certified by the County recorder with his official seal affixed thereto, shall be received in all Courts and places within this state, as prima facie evidence of the existence of such instrument, and as conclusive evidence of the existence of such record.’
It will be noted that this section merely makes the record ‘prima facie evidence of the existence of the instrument,’ and says nothing about delivery. The law as to presumption of delivery has arisen because of the necessity of relying at times upon the material inference raised by the record.
The theory that delivery for record constitutes actual delivery seems to have been first proposed in the case of Stelle v. Lourey, 4 Ohio 72,19 Am.Dec. 581, wherein the delivery for record of a deed of trust prepared in accordance with the agreement of the parties was held sufficient evidence of delivery. In Hammell v. Hammell, 19 Ohio 17, the Supreme Court held: ‘If the deed be recorded and the Grantee take possession under it, these facts, unexplained, will amount to a delivery.’ And the decision as explained on page 19 of 19 Ohio rests on the fact of record and possession ‘in the absence of explanatory proof on the part of the complainant.’ In the case of Mitchell v. Ryan, 3 Ohio St. 377, a portion of the syllabus reads as follows:
‘Where a man executes and acknowledges a deed and delivers it to the Recorder with unqualified instructions to record it, the reasonable presumption in the absence of any rebutting circumstances is that he means to part with his title.’
This case has been cited many times with approval, and the possibility of rebutting the presumption raised by the record has been many times discussed and is especially mentioned in the following cases: Harvey v. Jones, 1 Disn. 65;Goodhue v. Goodhue, 3 Ohio N.P.N.S., 225, 15 Ohio Dec. 635;Lemley v. Shafer, 14 Ohio App. 362, 32, O.C.A. 177;Hinchey v. Seldon, 17 Ohio App. 447. All of these cases emphasize that the intention of the Grantor at the time of recording the instrument is controlling.
The reasoning of the Court in the Mitchell case is indicated in the opinion, 3 Ohio St. at pages 384 and 385, where the failure of the grantor to defend his actions or show any other intention than that of making an actual conveyance to the grantee is analyzed as follows:
‘He was called as a witness and testified. When he did so he had the strongest motives to state that he did not mean by the execution and recording of the deed to part with his title. * * * Yet he uttered not one word to explain the intention with which he sent the deed to the recorder, * * *. Why this silence of both witness and party? Why this failure to prove what the intents of both required to be proved. Why this neglect to make a successful defense? It seems to us there is but one answer we are authorized to give to these questions, and that is that the question was not asked because the answer would have been unfavorable and for the same reason there was no unasked statement by the witness. This is the ordinary presumption where a party fails to offer proof of what he ought to prove if it exist. * * * The very object for which the witness was called was to prove that the deed was never delivered, but instead of asking him directly for what purpose he caused it to be recorded, the Defendant contents himself with proving circumstances from which he asks the Court to infer the purpose.
‘We suppose the truth to be, that the deed was sent to the Recorder to be recorded, in order to vest the title in the Grantee, and make the property hers; but that afterwards the Grantor changed his mind, and concluded not to give it to her. And, it is altogether probable, assuming the deed to be a gift, that he supposed he had a right to revoke it. This view reconciles his conduct perfectly, and it is the only view that, upon the testimony, we felt at liberty to take.’
The foregoing explains clearly the basis of the decision in the Mitchell v. Ryan case and indicates that the Court would have listened to an explanation of the grantor's actions then, had an explanation been offered.
I am impressed, incidentally along this line, with the following analogous cases wherein the Court gives controlling effect to the actual intention existing at the date of the conveyance and delivery of the deed, regardless of later developments: Dukes v. Spangler, 35 Ohio St. 119;Williams v. Schatz, 42 Ohio St. 47;Meek v. Stillwell, 54 Ohio St. 541, 44 N.E. 267. In our present case, the grantor very clearly explained her intention which existed at the time of execution of the deed, at the time of recording of the deed, and apparently continued to exist unchanged until the actions of the parents of the grantee caused her to change her mind and file this law suit. She has a right to change her mind with reference to this proposed gift which, according to this Court's view of the evidence, had never been actually made. No proceedings in Court would have been required to authorize the retention of an undelivered gift, except for the necessity of correcting the County Records because of the recording of the deed. It would seem that the property being hers and no consideration or obligation having existed requiring her to complete her proposed gift to her grandniece, she should be entitled to do with her property as she pleases even though her change of mind may unfavorably affect the proposed recipient of her favor.
The fact that the grantee was a minor, and may be presumed in law to accept any beneficial gift, is not controlling for the reason that she cannot accept a gift until the gift is actually made. The absence of any clause in the deed reserving a life use to the grantor is not considered controlling where grantor retained the deed in her possession. It is unfortunate that the solicitude of the parents for the care of the property, which the grantor may not have been repairing as frequently as desired, should have brought about a change of heart on the part of the intending grantor, and it is to be hoped that the plaintiff will not penalize the proposed grantee who is herself too young to have known of or participated in the proceedings. It is likewise true that the widow of an eminent and learned attorney and Judge of our Probate Court should have realized the border lines on which she was treading in recording this deed, yet if her line of thought were in accordance with her testimony, she has protected herself according to her understanding of the law. The transfer of property on death in this manner is not favored by law, and doubtless many conveyances of this kind are of doubtful validity, yet the Court can hardly penalize a party for attempting to do an act which is not illegal, although it might have been void had it been consummated. The Court has given some time to the consideration of this matter, and has read numerous cases in addition to those cited in the briefs bearing upon the questions herein involved.
Judgment will be rendered in favor of the plaintiff, setting aside and cancelling the deed, and attorneys are authorized to draw a decree accordingly. Plaintiff is required to pay the costs because her placing of the deed on record has made necessary this proceeding. Defendant must refund the rents collected by her.