Van Hoozer v. Best , 204 Okla. 149 ( 1951 )

HALLEY, J.

(dissenting). The majority opinion is based upon the rule which is extant in this state — and with which I find no fault — that if the grant- or, at the time that he executed the deed and placed it in the hands of a third person to hold until his death, did not intend to forever part with all lawful right and power to retake and repossess the deed, or to thereafter control it in any manner, such a deed would be only a testamentary disposition of the property, and since it was not made according to the laws for making a will, would be invalid. The converse is also true: that if, at the time the grantor executed the deed and turned it over to the third party, he fully intended to part with all control over the deed and did not have the power or right to repossess the deed, it would be a valid conveyance.- There is no dispute as to what the law is in Oklahoma; it is its application to the facts in a particular case which causes the trouble. A question of a similar nature has been considered in Johnson v. Craig, 37 Okla. 378, 130 P. 581; Shaffer v. Smith, 53 Okla. 352, 156 P. 1188; Wright v. Anstine, 96 Okla. 162, 220 P. 928; Kay v. Walling, 98 Okla. 258, 225 P. 384; Hall v. Dollarhide, 116 Okla. 180, 244 P. 813; Snodgrass v. Snodgrass, 107 Okla. 140, 231 P. 237, 52 A.L.R. 1213; Loosen, Adm’r, v. Stangl, 163 Okla. 231, 22 P. 2d 364; Anderson v. Mauk, 179 Okla. 649, 67 P. 2d 429; McCaw v. Hartman, 190 Okla. 264, 122 P. 2d 999; and Maynard v. Hustead, 185 Okla. 20, 90 P. 2d 30.

The evidence is overwhelming that the grantor indicated at all times after he signed the deed that he intended his friend Van Hoozer to have this property. Every time that anyone asked him about this property, he said that he wanted Van Hoozer to have it. I submit that the facts here are stronger for a grant in praesenti than existed in McCaw v. Hartman or in Maynard v. Hustead, supra. In both instances this court approved a deed made and placed in the hands of a third person.

The deed in this case was actually delivered to Van Hoozer before the death of Smith, the grantor, at his (Smith’s) direction. In view of the fact that Smith, the grantor, insisted upon the delivery of the deed to Van Hoozer during his (Smith’s) lifetime, and would not be satisfied until the deed was delivered to Van Hoozer, creates a much stronger case for the plaintiff than those considered in the aforementioned cases; and the case resolves itself into one as to whether or not Smith had the mental capacity to give a deed at the time it was executed and delivered. There is no evidence in the record that Smith was in such mental condition that he did not know the significance of the warranty deed which he had made, and which he had at all times insisted should go to Van Hoozer. This court has held in numerous cases that the test of the ability to make a deed is that the grantor should have the ability to understand the nature and effect of the act in which he is engaged and the business he is transacting at the time of execution and delivery. Scott v. Scott, 131 Okla. 144, 268 P. 245; Miller v. Folsom, 49 Okla. 74, 149 P. 1185; Tiger v. Lozier, 124 Okla. 260, 256 P. 727; Bumpass v. Stone, 190 Okla. 488, 125 P. 2d 755; Antle v. Hartman, 193 Okla. 524, 145 P. 2d 756; Tate v. Murphy, 202 Okla. 671, 217 P. 2d 177. There is no testimony in this record which shows that the grantor in the deed did not realize what he was doing when he executed the deed; and it is only the testimony of one of the lawyers in the case that indicates there is any question about his mental capacity at the time of delivery, and such testimony is not entitled to a great deal of weight. The testimony of the witness, in my opinion, shows conclusively that Smith was aware of what he was doing. We said in Scott v. Scott, supra, when speaking of a grantor in a deed, that he may be old; he may be enfeebled by disease; he may be erratic, irritable and changeable in his views; he even may be irrational upon some topics; but in the absence of fraud, he may still execute a valid deed. It makes no difference here what the escrow holder thought her duty was, nor does it make any difference that the plaintiff executed a deed back to Smith at her insistence. Our chief concern is with what Smith desired.

I call attention again to the fact that Smith, every time he opened his mouth in regard to the disposition of his property after executing this deed, insisted that Van Hoozer be the recipient thereof. The majority opinion infringes upon the right of the individual to dispose of his property according to his own desires. This is one case that should be re-tried.

I dissent.