Severn v. Ruhde

WOOD (W. J.), J.

Pheba Ann Cassey died on April 11, 1941, at the age of 87 years, leaving a will dated March 31, 1941, in which she gave all of her property to her four children in equal shares. She had given a deed to a parcel of real estate to her daughter, Bea Ann Ruhde. This deed bore the date of August 12, 1938, and was acknowledged on February 15, 1939. She gave a joint tenancy deed dated March 18, 1941, covering the same property to her son, George Vernon Cassey, in which he was named as joint tenant with herself. This deed was recorded on the day of its date. In this action the administrator with the will annexed of the. estate of Pheba Ann Cassey seeks to quiet title to the real estate described in these two deeds and to require reconveyances by the grantees named in the deeds. The trial court having rendered judgment in favor of plaintiff, separate appeals are prosecuted by Bea Ann Ruhde and George Vernon Cassey.

In the first count of the complaint plaintiff sets forth the usual allegations of an action to quiet title. In the second count plaintiff alleges that when decedent signed the conveyance in favor of defendant Ruhde she instructed said defendant not to record the instrument until after her death and further “instructed” her that “she would continue to exercise management and control over said property and collect the rents therefrom.” The complaint contains no allegation that the deed was not delivered to defendant Ruhde. In several other counts plaintiff sets forth various allegations concerning the execution of the joint tenancy deed to defendant Cassey, stating that decedent had instructed said defendant not to record the instrument until after her death, and that the deed to Cassey had been procured fraudulently, without consideration and in violation of his confidential position. The trial court filed findings sustaining the allegations of the complaint as to defendant Cassey. The court also filed findings sustaining the allegations of the complaint as to defendant Ruhde and further found that decedent did not deliver or

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intend to deliver the instrument of conveyance to defendant Buhde.

Mrs. Buhde now contends that the findings as to nondelivery of the deed to her are without support in the evidence. She testified that decedent and the witness had lived together about five years prior to decedent’s death; that in March, 1939, decedent had delivered to her a deed to the property in question and that the witness had kept the deed at all times in her possession in a little box with her insurance papers, except for the time the deed was in the office of the county recorder; that at the time of the delivery of the deed decedent told her she wanted the witness to have the property since the boys had had their share; that at the time of the delivery of the deed she gave to decedent the sum of $1; that practically all of the time after the delivery of the deed the witness received from decedent the rents from the property; that decedent “did go out and collect them because she always liked to visit with the tenants”; that decedent was the widow of a Civil War veteran and a Gold Star mother and there was discussion between the witness and decedent concerning the fact that taxes would have to be paid on the property if the deed to the witness should be recorded; that she “thought it was alright as it was ’ ’; that on April 26, 1940, decedent executed a mortgage on the property in the sum of $500, the note, but not the mortgage, being signed by the witness; that this sum of $500 was used as part payment for a home in Artesia, where the witness and decedent lived; that the deed was recorded at the suggestion of decedent shortly before her death.