Priest v. Bell

BRAY, J.

In a quiet title action, defendants Antone L. Rodrigues and Lois Rodrigues appeal from a judgment in favor of plaintiff.

The question presented is the sufficiency of the evidence to support the court’s finding of lack of delivery of a certain deed.

Evidence

Plaintiff and defendant Antone are brother and sister, and are two of the eight children of Mary E. Rodrigues, who acquired the realty from her husband on his death in 1928. Mary was born in the Azores, Portugal, had little schooling, but could read simple English. Living on the premises in 1945 were Mary, her two sons Albert and Antone, and the latter’s wife. In November or December of that year Antone was heard to inform his mother that to avoid probate expense she ought to make a deed of the property to all" eight children. Some, if not all, of the children had talked over with Mary the making of a deed to them. Many times she had stated that she wanted the children to have the property in the event of her death and wanted a deed to them so that upon her death the property would be divided among them without probate. It was understood that Antone was to make the arrangements for the deed. On July 12,1946, Antone, Manuel and Mary, and possibly one or two of the other children, went to a notary public’s office where the first three instructed the notary to draw a gift deed from Mary to the children. There was no testimony as to whether after signing the deed Mary handed it to Antone or anyone else. However, Antone recorded it three days later. Mary paid for its preparation. Thereafter Mary continued to collect rent from Antone, Albert and the other tenants in the house. The roof was repaired by Antone and Albert. Mary gave Antone the money for the materials and for his work. Albert made no charge. Mary paid the taxes and insurance on the property and had

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complete control of it. After the controversy arose, Mary stated that she had wanted the deed to be effective only when she died, that as long as she lived the property was to be her home. In 1948 Antone wanted all the children to deed the property back to the mother. He had a deed prepared for that purpose, dated February 20, 1948. His purpose was to get the title into her name so that she could borrow on the property and loan him money to go into the trucking business. The other children refused to sign. Antone claims that in 1949 Clement asked to see this deed which Antone and Manuel apparently had signed, and then against Antone’s wish took it away. It bears an acknowledgment by all eight-children dated December 21, 1949. Antone denies acknowledging it. In June, 1948, Antone and his wife recorded a declaration of homestead on the property and in November, 1949, Antone executed and recorded a gift deed of his interest, if any, to his wife. August 18, 1950, Mary deeded the property to plaintiff.