Hill v. Younkin

DEVINE, P. J.

A judgment quieting title to real property was awarded to plaintiff against a claim asserted by appellant individually and as executrix of the will of the parties’ deceased child. Appellant as an individual is the sole devisee and legatee.

. Plaintiff Russell E. Hill and his first wife, defendant Elizabeth Younkin, were divorced in 1946. The maiden name of the testatrix under whom appellant claims was Mildred Hill. After the divorce of her parents, she married William Ivie, who died about eight months after the marriage. Russell Hill remarried in 1950. Meanwhile, he had acquired the property which is the subject of this lawsuit. It was his separate property. Shortly after the purchase of the property, Russell deeded it to his daughter, but he continued to maintain the property at all times, made improvements, and paid the taxes. Mildred knew that the property had been conveyed to her. In 1955, she developed Hodgkin’s disease and at about this time she reconveyed the property to respondent, Russell.

On May 31, 1957, respondent again executed a deed to the property, naming Mildred as grantee. The deed, however, was not delivered to Mildred; at no time did she have it in her possession; she was unaware of its existence until she was told of it by her grandmother in 1964. The deed was prepared by an attorney, who warned Hill of the dangers of transferring title because Mildred might refuse to reconvey, but Hill in

[882]

sisted upon going ahead. The attorney caused the deed to be recorded and mailed it back to Hill. In 1965, Hill asked Mildred to reconvey but she refused. She died June 21, 1965. During all of the years respondent had remained in possession of the property arid paid the taxes, but shortly after Mildred’s death appellant paid the taxes before respondent tendered payment thereof.

In this suit to quiet title, respondent pleaded that the deed was never delivered to the decedent, and tha,t respondent never intended to transfer title to her. The pretrial conference order states defendant’s contentions to be: 1) that there was a delivery and that plaintiff at all times acknowledged the property to belong to Mildred until he discovered that she was suffering from a fatal illness; 2) that if the transfer was not made as a gift, it was made for the purpose of defeating plaintiff’s second wife, Sophie Hill, who had commenced a divorce action, and that therefore plaintiff may not have quieting of title because of unclean hands.