No. 8 9 - 2 7 8
IN THE SUPREME COURT OF THE STATE OF MONTANA
PETER J. GROSS,
Plaintiff and Respondent,
-vs-
RICHARD P. GROSS,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Walter S. Murfitt; Luxan & Murfitt, Helena, Montana
For Respondent :
Gene A. Picotte, Clancy, Montana
Submitted on Briefs: Aug. 17, 1 9 8 9
Decided: OCT 2 4 mi
Filed:
Justice John Conway Harrison delivered the Opinion of the
Court.
Peter J. Gross (the father) initiated this action to
have three deeds that conveyed an interest in property to
Richard P. Gross (the son) declared null and void. The
District Court of the First Judicial District, Lewis and
Clark County, granted summary judgment in favor of the
father. The District Court held that the father presented
sufficient evidence to overcome the presumption of delivery
raised by the father's recording of the deeds. We reverse
and direct entry of judgment for the appellant.
Appellant raises the following issue for review:
Did the District Court err in holding that the
plaintiff presented sufficient evidence to rebut the
presumption of delivery arising from the recording of the
deeds?
Appellant, Richard Gross, is the son of respondent,
Peter Gross. Peter's wife (Richard's mother) died in 1980.
Peter was 80 years old at the time. Sometime after her
death, the father suffered a stroke which prompted a
discussion between father and son concerning the father
putting his affairs in order. Shortly after this discussion,
the father executed and recorded three warranty deeds that
transferred property from the father to the father and son as
joint tenants. The father retained the deeds in his
possession, continued to occupy and maintain the property and
to pay all expenses associated with the property.
After the father executed and recorded the deeds, he
told his son that he had p.ut the property into a joint
tenancy with him. It is undisputed that the father executed
the deeds to avoid probate. Subsequently the father asked
the son to reconvey the property, but the son ref.used. The
father has since remarried.
Several conflicts between the father's affidavit and
deposition and the son's deposition appear in the record.
The father maintains that the son requested that his name be
put on the deeds while the son testified that he had no
knowledge of his father's actions until after the deeds were
executed. Also, the father contends that the son promised
that he would not interfere with his control of the property
or object to any disposition of the property he wished to
make. The son denies that the subject of control ever arose
and that he ever made any such assurances.
In Roth v. Palutzke (1960), 137 Mont. 77, 350 P.2d 358,
this Court found that, based on what is now S 70-1-509, MCA,
when a deed is executed a presumption arises that delivery
occurred and that recording the deed strengthens that
presumption. We conclude that this presumption can only be
overcome by clear and convincing evidence. 23 Am.Jur.2dI
Deeds S 172; Controlled Receivables v. Harmon (Utah 1966),
413 P.2d 807.
In assessing whether the grantor has presented clear
and convincing evidence, the general rule is that the
grantor's self-serving statements are not enough to overcome
the presumption of delivery. See, 23 Am.Jur.2dI Deeds 5 172;
Controlled Receivables, 413 P.2d at 810. Also the fact that
the grantor has retained possession of the deeds and
continued to occupy and control the land will not rebut the
presumption when a close relationship exists between the
grantor and grantee. Roth, 350 P.2d at 360.
The father testified that he did not intend to create a
present interest and argued in essence that his actions
subsequent to recording the deeds were inconsistent with an
intention to create a present interest. The District Court
held that the father had presented sufficient evidence to
overcome the presumption of delivery. In reaching its
concl~usion, the District Court relied on the father's
dominion and control of the property along with his paying
all of the expenses such as taxes and insurance.
We do not agree that the father presented the kind of
clear and convincing evidence required to rebut the
presumption of delivery. The District Court felt that the
father's intent was the crucial factor and stated that it
found no evidence in the record that the father intended to
create a present interest. However, the evidence relied on
by the District Court to determine that the father did not
intend to create a present interest in the son cannot be used
to rebut the presumption of delivery given the close
relationship between father and son.
This Court has held that subsequent acts of a grantor
identical to those of the grantor in this case "do not meet
the burden of going forward with the evidence imposed by
virtue of the presumption of delivery." Roth, 350 P.2d at
360. In Roth, the grantor had retained control of the deeds
after recording and continued to manage and control the
property. The grantee was the grantor's wife. After the
grantor's death, the grantor's daughter argued that such
subsequent acts showed that the "deceased had not a present
intention to divest himself of his property, and that
therefore the presumption of delivery is overcome." Roth,
350 P.2d at 360. Nonetheless, this Court affirmed the
district court's finding of delivery. The Roth case
signifies that evidence of these particular subsequent acts
is not sufficient to rebut the strong presumption of intent
to create a present interest raised by recording deeds when a
close relationship exists between the grantor and grantee.
The District Court's opinion indicates that it
interprets the parent-child relationship referred to in Roth
as meaning parent-minor child. However, a review of the
cases relied upon by the Roth Court discloses cases where
subsequent acts of dominion and control by a parent granting
to an adult child were held not to overcome the presumption
of delivery. Roth makes no distinction between minor and
adult children in defining close relationships.
Unlike Roth, the grantor in this case is alive and has
testified regarding his intent. But, as noted above, a
grantor's self-serving statement will not overcome the
presumption of delivery raised by recording. No independent
third party testimony exists to corroborate the father's
testimony regarding his intent. See Curtis v. Ferris (Colo.
1969), 452 P.2d 38.
The undisputed evidence in the record establishes that
the father intended to avoid probate. As to his property, he
chose to accomplish that purpose by executing and recording
deeds that granted his son a joint tenancy in the property.
This intentional act constituted unrebutted evidence of his
intention to create a present interest in the son which upon
the death of the father would automatically pass full title
to the son. The father testified that he did not intend to
pass a present interest to the son and that he retained deeds
and controlled the property. But, as discussed above, the
father's self-serving statements and those particular
subsequent acts, by law, cannot rebut the presumption.
The father must present clear and convincing evidence
other than his own statements and other than those particular
subsequent acts. He has not presented any other clear
evidence. The District Court erred in concluding that the
father presented clear and convincing evidence sufficient to
overcome the presumption of delivery raised by his recording
of the deeds.
We reverse the District Court and direct entry of
judgment for the appellant.
We concur: