Opinion
July 2, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 649
Telep & Connell, Joseph H. Hellewell, Samuel S. Telep, Greeley, for plaintiffs-appellants.
William E. Bohlender, Greeley, for defendants-appellees.
RULAND, Judge.
Plaintiffs appeal from a judgment quieting title in defendant Robert Faulkner to certain real property located in Weld County, Colorado, and originally owned by Ida Belle Faulkner. We affirm.
The dispute in this case centers around two deeds. The first is a warranty deed executed by Ida Belle on November 12, 1963, conveying the subject property to her grandson, Robert Faulkner, but reserving therefrom a life estate. This deed was recorded November 14, 1963.
The second is a quitclaim deed executed by Robert Faulkner at the request of Ida Belle on April 24, 1964, which deed purports to reconvey the subject property to Ida Belle. However, Ida Belle also signed this deed in the space where the signature of a grantor usually appears, and did not record it. The notarized acknowledgement recites that the deed was executed but fails to recite whether it was acknowledged by Robert Faulkner, or Ida Belle, or both.
Following the death of Ida Belle in 1972, the quitclaim deed was discovered in the file of her attorney. A note was attached which read:
'Another deed prepared in lieu of this--sent to Mrs. Bencomo for sig. 5/12/64 G.'
The author of the note is unknown. This note was removed from the quitclaim deed and the deed was recorded by the attorneys for Ida Belle's estate, thereby establishing record title in Ida Belle. The administratrix of the estate subsequently conveyed the subject property to the plaintiffs. The plaintiffs then initiated an action for unlawful detainer against Robert Faulkner (who was in possession of the property) and the other defendants; that action was later converted by agreement of the parties to an action to determine title.
Trial was to the court. Plaintiffs rested their case after introducing the administratrix's deed, a correction deed executed by the administratrix, and a title insurance policy.
Defendants then introduced evidence to show that Ida Belle delivered the warranty deed to Robert Faulkner in 1969, advising him that she wanted him to have the instrument. In addition, during presentation of defendants' case, Robert Faulkner's mother testified that at the request of Ida Belle, she had delivered the quitclaim deed to her son to be signed, and that when she returned the deed, Ida Belle also signed the instrument on the space provided for a grantor's signature and explained her signature to the witness as follows:
'She said, well, if anything happened to her, well, Bob would get it. And if anything happened to my son, it would go back directly to her.'
Another witness called by Faulkner then testified that Ida Belle stated a few years prior to her death that 'She had left everything to Bobby, her grandson.'
To this point in the trial, Plaintiffs had objected to all statements of the decedent as hearsay and the trial court had overruled the objections. Plaintiffs failed to object to the testimony of two additional witnesses who testified as to other statements by Ida Belle a few years prior to her death to the effect that she had deeded or was leaving the property to Faulkner.
At the conclusion of the trial, the court found that the quitclaim deed was not a valid conveyance because: (1) Ida Belle also signed as grantor; and (2) the deed was not accepted by Ida Belle, as shown by her statements and the fact the deed was in her attorney's file with a note attached and not recorded until after her death, and thus not at her direction. The court therefore entered judgment quieting title in Faulkner.
We observe at the outset that the applicability of the Deadman's statute is not raised as an issue in this case nor does it have any applicability here because neither party sues nor defends in one of the capacities specified in that statute. See C.R.S.1963, 154--1--2; Askins v. Easterling, 141 Colo. 83, 347 P.2d 126.
In seeking reversal, plaintiffs contend that Ida Belle's signature did not invalidate the quitclaim deed, that the statements of Ida Belle relied upon to establish nonacceptance of the quitclaim deed were not admissible, and that, therefore, the judgment is erroneous. We disagree.
Assuming, without deciding, that Ida Belle's signature on the quitclaim deed did not invalidate that deed, the judgment of the trial court must be affirmed based on its finding that there was no acceptance of the quitclaim deed by Ida Belle.
It is elementary that for title to pass by deed, the deed must be delivered to and accepted by the grantee, and whether the deed is accepted by the grantee as a present conveyance of title is a question of intent. Rittmaster v. Brisbane, 19 Colo. 371, 35 P. 736; Annot., 74 A.L.R.2d 992. While acceptance may be presumed under certain circumstances, See Knox v. Clark, 15 Colo.App. 356, 62 P. 334; 23 Am.Jur.2d Deeds s 128, where, as here, the issue of acceptance is disputed, testimony as to the grantee's declarations is admissible to show intent, Annot., 74 A.L.R.2d 992 at 1006, and evidence of statements by a decedent offered to show state of mind is not hearsay. Simonton v. Continental Casualty Co., 32 Colo.App. 138, 507 P.2d 1132.
Testimony was likewise admissible in this case of the statements by Ida Belle as falling within the 'decarations against interest' exception to the hearsay rule. Statements by a former owner are admissible against a successor in interest when such statements deal with the contemporary interest of the former owner and constitute a declaration against the former owner. Askins v. Easterling, Supra. Here the statements established Ida Belle's intent that a specific grantee have the subject property following her death and also a relinquishment of the right to otherwise dispose of the property during her lifetime. Hence, the trial court did not err in admitting the testimony as to such statements.
There being competent evidence to support the finding of the trial court that Ida Belle did not accept the quitclaim deed, we are not at liberty to disturb those findings on review, and the judgment is therefore affirmed.
PIERCE and SMITH, JJ., concur.