Brown v. Brown

152 S.W.3d 911 (2005)

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Nature of the Case

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Facts

The real estate involved was approximately twenty acres, on which a modular home, a cabin (improvements to which had been made by Ps), a nine-acre lake, and a single-wide trailer are present. The land was purchased in February 1966 by Catherine (W) and Edward Brown (H). There were four children of the marriage: John, Pam (Ps), Joseph (D), and Carolyn. When H died his interest in the real estate devolved to W, who became the sole record title owner of the property. H granted the land to W and her son John (P) as joint tenants with right of survivorship. This deed was recorded on June 14, 1989. On October 16, 1997, W executed another warranty deed transferring title to her remaining interest in the land to W and her daughter Pam (P) as joint tenants with right of survivorship. This deed was recorded on February 12, 1998. W, John, and Pam visited Kerber, an attorney, bringing with them a copy of the 1989 and 1997 warranty deeds. Kerber testified that the three asked her to prepare appropriate instruments that would leave the property titled in the names of W, John, and Pam as joint tenants with right of survivorship. John and Pam verified that story as well. As per the lawyer, the idea was to 'undo the previous warranty deeds and get it all back in W's name so she could make a deed placing both John and Pam on [the deed] as joint tenants with right of survivorship with her.' Kerber met with W out of the presence of John and Pam and questioned her closely to confirm her wishes and to ensure that she was competent and not being subjected to undue influence. Kerber prepared three quitclaim deeds. The first was a quitclaim deed conveying John's interest in the land to Catherine. The second transferred Pam's interest in the land to Catherine, and the third deeded Catherine's interest in the land to Catherine, John, and Pam as joint tenants with right of survivorship. The intention was that the third quitclaim deed be recorded last so that the property would ultimately be titled in the names of Catherine, John, and Pam as joint tenants with right of survivorship. The Recorder of Deeds recorded the deeds in the reverse order of that intended. The result of the order of the filing of the deeds was that W held the property in fee simple absolute, leaving Ps no interest in the property whatsoever. On April 3, 2002, W granted a durable power of attorney to Joseph (D) and Carolyn. and then W executed a beneficiary deed purporting to convey the property, upon her death, to each of her four children (Joseph, Carolyn, John, and Pam) as joint tenants with right of survivorship. This deed was recorded on April 8, 2002. Ps discovered what had happened. Ps filed the present action, seeking a variety of equitable relief, including the imposition of a constructive trust and the cancellation of the beneficiary deed, to rectify the mistake made by Kerber and/or the Recorder of Deeds. The court imposed a constructive trust in Ps’ favor, and D appealed.