Schueler v. Lynam , 80 Ohio App. 325 ( 1947 )

This is an appeal on questions of law and fact from a judgment and decree of the Common Pleas Court of Montgomery county, Ohio, cancelling a deed and ordering the title to certain real estate quieted as against the defendant, appellant herein.

In her petition the plaintiff, appellee herein, alleges that she is the sole devisee and beneficiary under the will of Elnora Lynam, deceased, which will was admitted to probate by the Probate Court of Montgomery county, Ohio; that Elnora Lynam died on April 15, 1944, owning lots numbered 24561, 24562, 24563 and 24564 on the plat of the city of Dayton, Ohio; and that the defendant, on May 18, 1944, recorded an instrument which purported to be a deed executed by Elnora Lynam to the defendant for such property, which instrument the plaintiff claims was not a good and valid deed, and prays that the deed be cancelled and that the title to the property be quieted.

The defendant, in his answer, alleges that the deed in question was executed by Elnora Lynam and her husband, William Lynam, on March 4, 1939, and delivered to him on March 10, 1939, and denies all the material allegations contained in the petition.

By stipulation, it was agreed that this case be submitted to this court on the transcript of the testimony taken in the trial court, together with some additional testimony taken before a special master commissioner appointed by this court. A transcript of the additional testimony taken has been filed.

The sole question for the court to determine is whether the instrument which purports to be a deed, executed on March 4, 1939, is valid. On the issues made the plaintiff carries the burden of proof. In an equitable proceeding, where the plaintiff prays for the cancellation of a deed filed of record and that the title to real estate be quieted, the burden of proof must be sustained by clear and convincing evidence. Ford v. Osborne,45 Ohio St. 1, 12 N.E. 526; Atlantic Refining Co. v. Wagner, 24 C.C. (N.S.), 275, 34 C.D., 587; Kerins v. Maumee Valley Mtg. Co., 7 Ohio Law Abs., 43; 33 Ohio Jurisprudence, 939, Section 135.

The record shows that the court below permitted counsel to have a wide latitude in the examination of witnesses. Under the technical rules of evidence some of the testimony would have been incompetent. Much testimony was introduced for the sole purpose of impeachment, some of which was proper and some being improper will be disregarded. In 42 Ohio Jurisprudence, 387, Section 378, it is stated that:

"In Ohio, it is held that the proof to impeach a witness's credit or truth and veracity is limited to his reputation in that respect, and that it is not competent to inquire of the general reputation of the witness, or to prove his turpitude in any respect for that purpose. The rule which permits an attack upon the credibility of a witness in a civil case is confined to proving a reputation of want of veracity and does not allow proof involving the general moral character of the witness."

The evidence shows that prior to June 1, 1938, the record title to lots numbered 24560, 24561, 24562, 24563 and 24564 stood in the name of William I. Lynam. On that date he deeded the lots to Elnora Southwick. Within the month William I. Lynam and Elnora Southwick were married. The deed was not filed for record until July 13, 1940. The instrument which purports to be a deed from Elnora Lynam to David Lynam for those five lots, the validity of which deed is questioned, was dated March 4, 1939, but not filed for record until May 18, 1944, which was after the death of William I. Lynam on May 8, 1942, and also after the death of Elnora Lynam, which occurred on April 15, 1944. The will of Elnora Lynam, executed on February 7, 1944, was duly probated in the Probate Court of Montgomery county, Ohio, on May 6, 1944. The plaintiff, Matilda Schueler, is named as sole beneficiary and executrix. Item 2 of the will, which is the only dispositive clause, is as follows:

"I give, devise and bequeath all of my property, both personal and real estate to my beloved aunt, Matilda Schueler, of Dayton, Ohio; — The residue of all my estate that I may die seized of."

The record shows that lot numbered 24560 had been deeded to William and Eleanor Wentz by Elnora Lynam and William Lynam, under date of August 29, 1941. On the date the deed was executed William and Eleanor Wentz executed a purchase money mortgage in favor of Elnora Lynam for $1,200. The deed and mortgage were both filed for record on September 4, 1941. Thus, the title to lot numbered 24560 is not involved in this controversy.

After her appointment as executrix, Matilda Schueler promptly effected an estate appraisal of lots numbered 24561, 24562, 24563 and 24564 and immediately sought a purchaser for the real estate. Within a few days after the appraisal had been made Drewey H. Wysong who, up to that time had acted as attorney for Matilda Schueler in the settlement of the estate, called her by telephone and told her he had a purchaser for the property. Matilda Schueler informed him that her niece had assisted her in procuring a purchaser, and that she had already sold the property. Whereupon, Wysong told her: "Since you don't want to listen to my suggestions you get another attorney, maybe your niece can represent you." Up until that date the relationship between Schueler and Wysong had been very friendly; he had represented her in other legal matters. With that conversation, however, Wysong terminated his legal services and Schueler immediately obtained other legal counsel.

It was at that time the whole matter took a sudden turn. A series of conversations and circumstances took place, about which much testimony was taken, which is contradictory in character. To attempt to reconcile the testimony would be impossible and to attempt to analyze all the testimony would serve no useful purpose and would unduly lengthen this opinion. We recite only such parts of the testimony which have a direct bearing on the issues presented, and which may disclose the underlying motive or purpose of those persons participating in certain transactions and why they pursued a certain line of conduct.

Within a few days after the conversation took place between Matilda Schueler and Wysong, the defendant, David Lynam, according to his own testimony, called on Schueler and asked her whether she had found a deed to him for the property, and, upon being told that she had found no such deed, he called Wysong and asked about the deed. Wysong at first disclaimed any knowledge of the deed. Later David Lynam called at Wysong's office and found a person by the name of Kennedy reading the deed in question. Wysong gave him the deed and he, thereupon, on May 18, 1944, filed the deed for record. David Lynam claims Elnora Lynam and William Lynam, who signed a release of dower in the purported deed, delivered the deed to him, David Lynam, in the presence of Wysong in 1939, and that he requested Wysong to keep it for him, although both David Lynam and Wysong testified that they were not on friendly terms at that time. David Lynam claims that at the time the instrument was delivered he gave William Lynam $50; that he had previously, at regular intervals over a period of years, given sums of money to William Lynam; and that the purported deed was for such past consideration and also to compensate David Lynam by reason of an unequal division of the estate of the parents of David Lynam and William Lynam, which division occurred in 1916.

There is testimony of sound probative value to the effect that William Lynam was employed up until a short time before his death; that Elnora Lynam had received $10,000 as proceeds from life insurance upon the death of her first husband; that a short time before her marriage to William Lynam she had a bank deposit of considerable size, and other investments; and that neither she nor William Lynam had any occasion to ask alms. A review of the testimony of David Lynam on that matter shows that his testimony is not very satisfactory. There is testimony, too, to the effect that David Lynam did not visit Elnora Lynam and William Lynam after their marriage; that he saw Elnora Lynam only a few times; that David Lynam and Elnora Lynam were not on friendly terms; and that at one time when David Lynam went over to the home of Elnora Lynam she chased him away by stating: "What the hell you want out here?"

There is evidence of strong probative value to the effect that Wysong wanted to obtain this property for his son; that Wysong had made statements to the effect that William Lynam had stated that he intended Wysong to have his property after his death because of their great friendship; that Elnora Lynam and William Lynam, had consulted him about the execution of wills, each devising their property to the other, but Wysong advised against the execution of wills and advised signing deeds in blank, with the suggestion that the survivor destroy the one deed; and that a deed was better than a will. There is also testimony to show that two blank deeds, on which appeared the signatures of Elnora Lynam and William Lynam, were seen in Wysong's office; that he stated they would have to be filled in and he would have his daughter, Mabel, do it; that after he had the conversation with Matilda Schueler, at which time he ceased to act as her attorney, he held a conversation in his office with David Lynam, at which time he said to David Lynam that William Lynam wanted him (Wysong) to have the property, but he did not want to be a hog, and that David Lynam could have one-half the property and he (Wysong) would take the other half; that thereupon Wysong typed an agreement between David Lynam and himself, which David Lynam signed; that the blank deed on which appeared the signatures of Elnora Lynam and William Lynam was then filled out, making David Lynam the grantee; and that David Lynam took the instrument and walked out of the office.

There is evidence to the effect that on the evening after Elnora Lynam died, Wysong called at the residence and, in the presence of two witnesses while discussing the execution of wills, Wysong stated that there was a blank deed in his office signed by Elnora and William Lynam; and that when he was asked whether there could be two deeds to the property he answered: "Why you can have as many as you want to, but can't record more than one at a time, and in case anything happens you can fill in the deed."

The record shows further that William Lynam, in 1936, gave a mortgage on lots numbered 24560, 24561 and 24562 to the Lincoln Federal Savings Loan Association of Dayton. At the time the Lynams deeded lot numbered 24560 to the Wentzs that lot was released from the blanket loan and the Wentzs executed a mortgage to the loan association for $1,800. The amount of the Wentz loan was used to reduce the original loan by the Lynams. After David Lynam had his instrument recorded the Wentzs attempted to sell lot numbered 24560. The Lincoln Federal Savings Loan Association had agreed to make a new loan, but finding the instrument to David Lynam on record the association refused to pass the title. It was arranged to have David Lynam and wife execute a quitclaim deed to lot numbered 24560. Such a deed was executed in the association offices. The secretary of the association took the acknowledgment and he and a clerk acted as witnesses. The secretary and clerk testified that at the time of the execution of the quitclaim deed David Lynam stated that he had no interest in the property. It is observed that the instrument under which David Lynam claims title, and which is in controversy, included lot numbered 24560, and bears a date prior to the date the lot was conveyed to Wentz.

There is evidence tending to show that Wysong, although not an attorney of record in the instant case, did attempt to influence certain witnesses. One witness testified that Wysong called him a few days before his testimony was to be taken and told the witness not to appear; and that at that time Wysong stated to him it would be embarrassing if he testified. In a conversation over the telephone with one of the witnesses for the plaintiff, Wysong, upon being asked how the case was coming along, stated he had to give $50 to Kennedy, a witness for the defense. Wysong denied having had such a conversation, although the telephone call was made from the office of Durst, attorney of record for the plaintiff in this case. Koogler, co-counsel for plaintiff, and a reputable member of the profession, testified that he had dialed Wysong's telephone number in Durst's office and heard Wysong answer; that Wysong spoke in his customary, loud voice; and that he heard Wysong make the statement to the witness that he gave $50 to Kennedy.

On cross-examination David Lynam testified as follows:

"Q. You didn't find the deed at Drewey's the first time you contacted him did you? A. No, because he was working for the one party.

"Q. What? A. Working for your party."

Again, on cross-examination, David Lynam, when questioned why he waited several years to place the instrument on record, testified that it (referring to the instrument) was not ready yet, that he was not ready to get it. Upon being pressed for an explanation as to why he was not ready to get it, he stated that he was too busy. He testified also that he had met Wysong only once, had never been to his office, did not know where his office was on the day he turned the instrument over to Wysong for safe-keeping, and did not learn where Wysong's office was until the day he called for the instrument in question.

In determining whether Elnora Lynam executed and delivered a completed deed to David Lynam the court should give considerable weight, under the circumstances, to the following facts, which are undisputed: That if this instrument is valid Elnora Lynam and William Lynam parted with the ownership of practically all their assets soon after their marriage; the unfriendly feeling existing between Elnora Lynam and David Lynam; lack of acquaintanceship and unfriendly feeling existing between David Lynam and Wysong; that no instructions were given by David Lynam to Wysong as to the disposition of the instrument; the fact that Wysong did not keep the instrument with other such instruments in his office; the failure of David Lynam to record the instrument or make any effort to find the instrument after the death of his brother, as he testified that he did not trust Elnora Lynam, stating she was a grasping woman; that he paid no taxes or insurance, made no repairs on the property, made no payments on the mortgage, and disclaimed any interest in one lot embraced in the instrument, which was later conveyed to Wentz. These matters and the chain of circumstances narrated, together with the unsatisfactory character of much of the testimony presented by the defense when given the weight to which it is entitled, would be sufficient to cause the court to doubt the validity of the instrument as a completed deed of conveyance. When the owner of property participates in a series of legal transactions in regard thereto, over a period of years, and consistently deals with the property as her own, and the person who claims title to the property after the death of the owner followed a line of conduct during the life of the owner consistent with the ownership in her and inconsistent with the ownership in himself, the court will accept with caution and regard with suspicion any evidence introduced in support of his claim of ownership, where the validity of the instrument under which he claims title is seriously questioned, and was not produced until after the death of the owner.

However, there is still another chain of circumstance supported entirely by documentary evidence and undisputed, which is clear and convincing evidence that Elnora Lynam and William Lynam never intended or considered the instrument in question to be a valid deed of conveyance to David Lynam. These transactions took place in the following chronological order: On June 1, 1938, Drewey Wysong, acting as attorney for William Lynam, drew a deed for all five lots, in which William Lynam deeded the property to Elnora Southwick. Wysong took the acknowledgment and acted as a witness; Wysong's daughter, Mabel Wysong, who was his secretary at that time, acted as the other witness. The instrument under which David Lynam claims title was dated March 4, 1939. Wysong took the acknowledgment and acted as a witness; Mabel Wysong was the other witness. That instrument covered five lots, numbered 24560 to 24564, inclusive. On August 29, 1941, Wysong drew a deed from Elnora Lynam and William Lynam to William and Eleanor Wentz, for lot numbered 24560. Wysong took the acknowledgment and was a witness; Mabel Wysong was the other witness. On August 29, 1941, Wysong drew a second mortgage from Wentz to Elnora Lynam for $1,200 on lot numbered 24560. Wysong took the acknowledgment and acted as a witness. On October 4, 1943, Wysong drew a deed from Elnora Southwick to Elnora Lynam for lots numbered 24561 to 24564, inclusive. That deed was executed for the purpose of placing the title in the married name of Elnora Lynam. Wysong took the acknowledgment and was one of the witnesses. That deed was filed for record on February 7, 1944, the date on which the will of Elnora Lynam was executed, which will was drawn by Wysong and witnessed by him. In the will Elnora Lynam devised all her property, including the real estate, to Matilda Schueler, the plaintiff herein. After the death of Elnora Lynam the will was given to Wysong by Matilda Schueler for the purpose of filing it for probate. Wysong, acting as attorney for Matilda Schueler, filed the will for probate in the Probate Court of Montgomery county, Ohio. The will was probated on May 6, 1944, and Matilda Schueler was appointed executrix. Wysong, acting as her attorney, prepared for and effected an appraisal of lots numbered 24561 to 24564, inclusive, as the property owned by Elnora Lynam at the time of her decease. Wysong made some effort to find a purchaser for the property and regarded Matilda Schueler as the owner.

Also sometime prior to her death, Wysong prevailed on Elnora Lynam to sign an appeal bond in a case tried in the Municipal Court of Dayton, in which she was required to make a statement as to her ownership of real estate. She possessed no real estate except the lots in question. What explanation does Wysong give for acting as counsel and in assisting in the consummation of those legal transactions, and what is his attitude respecting the legality of the instrument in question? Upon being questioned as to why he drew a will for Elnora Lynam disposing of real estate which was included in the deed in question, he testified as follows:

"Q. And in Item 2nd, ``I give, devise and bequeath all of my property, both personal and real estate to my beloved aunt, Matilda Schueler, of Dayton, Ohio.' A. Yes, that's the way she wanted it.

"Q. She wanted to include her real estate, didn't she * * * A. Of course. * * *

"Q. Answer my question. A. I thought she figured that, and at that time I wasn't — I thought she ought to have it, I didn't know; Dave acted kind of queer to me generally and I didn't think that — figured Aunt Till should have it; that's the way I figured at that time; then is when she wanted me to destroy the deed.

"Q. When did you change your figuring? A. I didn't change my figuring."

Upon being questioned about drafting other instruments, he testified as follows:

"Mr. Durst: And yet with that deed in your possession for a period of over five years you continued to draft instruments related to this same property to other persons, didn't you? A. She came up, yes, and had it done, yes. * * *

"Q. How do you explain, Mr. Wysong, the fact that you a lawyer, practicing here at the bar in Montgomery county, drafted at least three deeds conveying this same property, deeds and mortgages; drafted a will, made an application in the Probate Court of Montgomery county, Ohio, reciting that Elnora Lynam was the owner of this real estate; sent appraisers out to appraise it, obtained a prospective purchaser, in the face of what you have already said it had already been conveyed to David Lynam. A. The truth of it is I didn't want Dave to get the property.

"Q. Were you making yourself a party to defeat him then? A. No, I didn't do that at all.

"Q. Why didn't you consider this deed a conveyance all this time?

"Mr. Barger: Objection.

The Court: He may answer that question. (Question read.)

"A. I don't know except when they came up and wanted this done I did it; maybe I had forgotten some things too, when you get as old as I am you might forget. If you go on your tirading you will be worse than I."

"Mr. Durst: Objection.

"The Court: Stricken.

"A. Any amount of people come up and I don't keep tab of their business or a deed I made out. I wanted her to get the property instead of Dave, that's the truth of the matter."

Upon being questioned concerning his attitude on the sale of the property by Matilda Schueler, he testified as follows:

"Q. You called her to see if she would sell it? A. No, I called her and talked to her told her I had a party I believed would pay $5250 and she says ``It is already sold.'

"Q. And if she would have agreed to sell it you would have conveyed it, wouldn't you? A. I might have, can't tell what I would have done then, might have done that."

That testimony is consistent with the contention that Elnora Lynam and William Lynam signed a form deed in blank. Wysong was ready and willing to consummate a sale of the property on the basis that the property was owned by Matilda Schueler, the sole devisee of Elnora Lynam, deceased. When he learned Matilda Schueler had sold the property he promptly changed his attitude. What the motive was which caused him to change his attitude may best be found in the facts and circumstances herein narrated.

When counsel has personal knowledge that his client owns certain property and, over a period of years, counsels with his client and renders legal service in the consummation of transactions of a legal character, such as drafting and the execution of deeds, mortgage and will, and makes appearances in a court of record, and conducts legal proceedings in the court on the assumption that the client was the owner of the property, he cannot be heard to say after the death of the client that the client did not own the property, especially when there is evidence of strong probative value to the effect that the instrument in question was signed in blank upon his legal advice, to be used upon death as a substitute for a will in the settlement of the estate, which instrument was secreted and withheld from record until after the death of the client. We are not unmindful that a deed, properly acknowledged and witnessed and filed of record, is entitled to great weight. 33 Ohio Jurisprudence, 939, Section 135. However, this instrument is not attacked on the ground that it was not signed by Elnora and William Lynam, but it is contended, and there is clear and convincing evidence to support the claim, that the instrument was signed in blank and was intended as a substitute for a will in passing property after death between Elnora and William Lynam. While an instrument which purports to be a deed, drawn and executed in proper form, is entitled to great weight in the proper case, under the circumstances in this case, and in the light of the evidence adduced, much greater weight should be given to the series of legal transactions participated in by counsel, which completely and entirely refutes any contention that the instrument was intended to be a conveyance of the property to David Lynam.

An attorney at law is a member of an honorable profession and the relationship which he occupies toward his client is of a highly confidential character. The consistent conduct of counsel, therefore, has great evidentiary value. The court will give great probative value to evidence showing that an attorney at law, in the representation of a client, engaged in numerous legal transactions over a period of years had pursued a consistent line of conduct, including personal appearances in and representation to courts of record, all of which were based on the continued existence of a fact, to wit, the ownership of certain property by the client, of which the attorney at law at all times had personal knowledge, and the court will give little weight to the testimony of such attorney who, after the death of the client, claims that the client did not own the property, but had passed it to another by an instrument of conveyance which was not produced until after the death of the client, the validity of which instrument is seriously questioned. There is much evidence of a substantial character which refutes the contention of the defendant and supports the claim of the plaintiff. We are of the opinion that Elnora Lynam and William Lynam signed the instrument in question in blank. Obviously, this was a void deed, and in the absence of authority, it could not become valid by writing or filling in the essential parts of the instrument over their signatures. The filling in or completion of the instrument after the death of Elnora Lynam was a nullity. In 13 Ohio Jurisprudence, 834, Section 18, the applicable rule of law is stated:

"The ancient law was well settled that a valid deed could not be made by writing it over a signature and seal made upon a blank or an empty sheet of paper. There is no decision by which the ancient doctrine has been overturned. Authority to fill one particular blank falls short of an authority to make an entire deed."

The text just quoted from Ohio Jurisprudence is supported by the case of Ayres v. Harness, 1 Ohio, 368, 372, 13 Am. Dec., 629. See also 32 A.L.R., 737.

Under the facts and circumstances in this case the court finds the plaintiff has sustained the burden of proof by clear and convincing evidence.

The court decrees the cancellation of the instrument purporting to be a deed of conveyance of lots 24560, 24561, 24562, 24563 and 24564 from Elnora Lynam to David Lynam, dated March 4, 1939, and filed for record May 18, 1944, and recorded in deed book 1051, page 307 of the deed records in the recorder's office of Montgomery county, Ohio, and having found that Matilda Schueler is the owner of the real estate, it is ordered that title to the real estate be quieted as against the defendant, David Lynam, and all persons claiming under him. Costs are assessed against the defendant.

Decree accordingly.

WISEMAN, P.J., MILLER and HORNBECK, JJ., concur.