Turner v. Mallernee

640 S.W.2d 517 (1982)

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Nature of the Case

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Facts

Ps took this action to quiet title to a 160-acre farm. P and D are the children of Arthur who died on November 6, 1978. Several years prior to November 1975 Arthur had conveyed another 160-acre farm, adjacent to the one here in dispute, to D. Arthur had stated on several previous occasions that he intended for the disputed farm 'to be P's.' on the adjacent farm, and the four people went to the office of attorney Daniel Wade. Wade prepared a deed to the land, using a description the four laymen had first obtained at the recorder's office. In the presence of attorney Wade and his three companions, Arthur signed and acknowledged the deed which contained a description of the farm, and named Ps as grantees. After Wade had 'notarized' the deed, Wade placed it in an envelope and gave it to P in the presence of the other people, including Arthur. It is a reasonable, if not inescapable, inference from the evidence that Wade's act of handing the deed to P was done with the knowledge and consent of Arthur. P was in physical possession of the deed. D suggested that the deed be left with him to be put by him in a safety deposit box. P agreed and handed the deed to D. P and D decided that the deed would not be recorded. P testified that P 'was supposed to keep the deed in a lock box and the deed was supposed to be returned' to her at Arthur's death. D testified that he placed the deed in his safety deposit box, to which Arthur had no access. In 1978 D burned the 1975 deed shortly before Arthur's death and after the execution of the defective 1978 deed. P leaned the truth three weeks after Arthur's funeral. P testified that the purpose in D having the deed was in case Arthur did have some kind of sickness or had a need of borrowing money against the place' but 'that was never necessary. P also testified that attorney Wade told her 'if Arthur ever really needed it, you could convey it back.' P realized that Arthur could borrow money on the property if he needed to before his death. But it was also understood P was to receive the deed at my father's death. It was to be recorded. Ps argued that delivery was accomplished when the deed, signed and acknowledged by Arthur, was handed by attorney Wade to P in the presence of Arthur with the latter's knowledge and consent. The court ruled for Ds and Ps appealed. Ds argue that the circumstances demonstrate that Arthur 'intended to retain control' of the deed and 'intended to be able to recall the deed if necessary.'