Opinion
No. 33160.
Filed July 18, 1952.
1. Deeds. The fact that a deed was not recorded until after the grantor's death is not of itself sufficient to show nondelivery. 2. ___. The possession of a deed by the grantee, in the absence of opposing circumstances, is prima facie evidence of delivery, and the burden of proof is on him who disputes this presumption. 3. ___. While not conclusive, this presumption controls until overcome by clear and satisfactory proof. 4. Evidence. An admission should possess the same degree of certainty as would be required in the evidence which it represents, and hence mere conjectures or suggestions as to what might have happened if certain circumstances had occurred are not competent. 5. Depositions: Evidence. An extrajudicial admission appearing in the deposition of a party taken before trial is not ordinarily final and conclusive upon him, but it may be competent and admissible as evidence in contradiction and impeachment of his present claim and his other evidence given at the trial, to be given such weight as the trier of fact deems it entitled. 6. Equity: Appeal and Error. Actions in equity, on appeal to this court, are triable de novo in conformity with section 25-1925, R. R. S. 1943, subject, however, to the condition that when the evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite.
APPEAL from the district court for Howard County: WILLIAM F. SPIKES, JUDGE. Affirmed.
John F. Kerrigan, for appellants.
Haggart Haggart, for appellee.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, and BOSLAUGH, JJ.
This is an action to set aside a deed; to quiet title to land as against the cloud of a deed; and to secure an accounting of rents and profits. The trial court found for defendant. Plaintiffs appeal. We affirm the judgment of the trial court.
Plaintiffs are brothers, a sister, and a niece of defendant. They are sons, a daughter, and a granddaughter of the grantor of the deed in question. Defendant grantee is a daughter of grantor.
Plaintiffs brought this action against defendant alleging undue influence, lack of consideration, lack of execution, and other defects in the deed. Plaintiffs took defendant's deposition. As a result of testimony thus secured, they amended their petition to allege lack of delivery of the deed. That is the substantial issue presented here.
Some of the facts are either not in dispute or so established as to require only a statement of them. The grantor, hereinafter called the father, was at least prior to the deed in question the owner of several hundred acres of land in Howard County. The land was heavily encumbered. It had two houses on it. In 1938, the father, a widower, lived alone in one house. A married son, one of the plaintiffs, lived in the other house and was tenant on the land. The father was elderly and in poor health. Defendant, a widow with minor children, came to live with and care for her father in 1938. Thereafter until his death, she lived with and cared for him. In May 1944, defendant bought a home in St. Paul, and the defendant and the father moved into that home and resided there until his death.
On October 2, 1945, the father went to a lawyer in St. Paul and had him prepare a warranty deed conveying the land to the defendant. It was signed, witnessed, acknowledged, and taken from the lawyer's office by the father. He gave the deed to defendant at that time and she had it at all times thereafter. The father died July 28, 1950. Defendant recorded the deed August 3, 1950.
The deed contains the customary covenants of warranty, provides that it is subject to encumbrances of record, which the grantee assumes and agrees to pay, and "Grantor reserves the use of said premises during his natural lifetime."
The fact question presented here arises out of such evidence as the following: Plaintiffs at the trial called defendant as their witness and inquired into the statements in her deposition as admissions against interest. She testified that the land was hers the "minute he gave me the deed" although she testified in the deposition that she didn't claim or have title to the land until his death. She testified that the farm would "definitely" be hers after her father's death. She testified at the trial that had the father changed his mind about the deed and had decided to sell the property or let the property go by will that he could have had the deed back, but that there was no agreement to that effect.
In the deposition, defendant was asked, "I suppose if your father had changed his mind about the deed and had decided to let the property go by the will he could have had the deed back if he wanted it, is that right?" Defendant answered, "That's right. The stipulation in the deed was that he could sell it if he wanted." And again defendant was asked, "That was part of the deal at the time he gave you the deed?" The answer was, "That's right." And again, "He said it was in the deed that if he decided to sell the ranch and go to Arizona, why he could," and that she agreed to that.
If as plaintiffs contend this evidence shows that there was a reservation of the father at the time of the giving of the deed that he could later dispose of the land if he wished, it also shows that, although mistaken, he thought the reservation was in the deed, and that it was there to protect the reserved right after title passed by the delivery of the deed.
There are two other matters of evidence that require mention.
There is evidence that in 1949, about threshing time, defendant asked one of the plaintiffs to go with her to the ranch; that "She thought the tenant out there was beating her out of the grain"; that the man who takes care of land bank matters told her "to go out there and watch when they threshed"; and defendant said to the witness, "it was just as much your interest as mine." The last statement out of context might relate to denial of full ownership in the defendant. But it was said when the father was living with reference to crops which under the deed, defendant did not claim. Obviously, it has no bearing on the issue here.
There is also evidence that the father sold one of the houses on the land for $700 after "we moved to St. Paul." The moving to St. Paul was in May of 1944. The father executed the deed October 2, 1945, a year and four months thereafter. This evidence is of no controlling importance here.
There is no contention in the evidence or here that the father ever undertook to exercise the alleged reserved right either by seeking to recover the deed, to sell the land, or to have the title pass by will. He allowed the deed to remain in defendant's possession.
The fact that the deed was not recorded until after the grantor's death is not of itself sufficient to show nondelivery. Kellner v. Whaley, 148 Neb. 259, 27 N.W.2d 183.
Defendant has the benefit of the following rules: The possession of a deed by the grantee, in the absence of opposing circumstances, is prima facie evidence of delivery, and the burden of proof is on him who disputes this presumption. While not conclusive, this presumption controls until overcome by clear and satisfactory proof. Kellner v. Whaley, supra; Cerveny v. Cerveny, 154 Neb. 1, 46 N.W.2d 632.
Plaintiffs offer evidence to overcome this presumption which are in the form of admissions and subject in part to the infirmity pointed out in Kellner v. Whaley, supra, wherein we held: "An admission should possess the same degree of certainty as would be required in the evidence which it represents, and hence mere conjectures or suggestions as to what might have happened if certain circumstances had occurred, are not competent."
These admissions are also subject to the rule that: "An extrajudicial admission appearing in the deposition of a party taken before trial is not ordinarily final and conclusive upon him, but it may be competent and admissible as evidence in contradiction and impeachment of his present claim and his other evidence given at the trial, to be given such weight as the trier of fact deems it entitled." Kipf v. Bitner, 150 Neb. 155, 33 N.W.2d 518.
There is a direct conflict in the evidence both as to what was said and what was meant. The credibility of the defendant is involved. The trial court heard the evidence of the defendant and resolved those questions in defendant's favor. That conclusion must be considered under the rule that: "Actions in equity, on appeal to this court, are triable de novo in conformity with section 25-1925, R. S. 1943, subject, however, to the condition that when the evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite." Maddox v. Maddox, 151 Neb. 626, 38 N.W.2d 547.
Under these rules we conclude the plaintiffs have not met their burden of proof.
Plaintiffs here assign as error the admission of a part of the evidence given by the attorney, who drafted the deed. In reaching our conclusion we have not considered the challenged evidence.
The judgment of the trial court is affirmed.
AFFIRMED.
WENKE, J., participating on briefs.