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Johannes v. Idol

April 25, 2008


Appeal from Brown District Court; JAMES A. PATTON, judge.


1. The standards of review for summary judgment are stated and applied.

2. The legal principles, presumptions, and burdens of proof relating to delivery of deeds are stated and applied.

3. To transfer title through a warranty deed, the grantor must cause the deed to be delivered during the grantor's lifetime.

4. Delivery of a deed may be constructive as well as actual or personal, and it may be made to a third party to hold for the grantee, where an intention is manifested to give the conveyance present effect.

5. In deeds of gifts to children or relatives, the reservation by the grantor for the use of the property during his or her lifetime is evidence of intention to deliver the deed before his or her death for there could be no purpose in placing such a reservation in the deed if it were not delivered in his or her lifetime.

6. Whether a grantor has caused a deed to be delivered is normally a question of fact, but where the facts are not controverted then delivery becomes a question of law.

7. The party challenging presumptions of delivery must supply clear and convincing evidence to rebut the presumptions.

8. Under the facts of this case, we hold that (1) an unsupported challenge to a witness' credibility is not sufficient to create a genuine issue of a material fact; (2) the grantor executed and had her signature acknowledged on the four deeds and manifested the intent to divest herself of title and vest title in the grantees; (3) delivery of the deeds into the possession of two of the grantees created the presumption that they were delivered; (4) the reservation of a life estate by the grantor and her lack of control over the deeds result in the law presuming that she delivered the deeds during her lifetime; (5) the correct point of inquiry as to whether delivery occurred is shown by the evidence relating to the 1960s and facts that occurred long after delivery had been completed are not material facts sufficient to defeat a summary judgment motion; and (6) the district court correctly granted summary judgment.

The opinion of the court was delivered by: Larson, J.



This fact-sensitive appeal involves the much litigated question of whether the execution and delivery of several deeds reserving a life estate constitutes a valid inter vivos gift or an invalid attempt at a testamentary disposition.

Several of the heirs at law of Margret Johannes, herein appellants, appeal from the grant of partial summary judgment in favor of the grantees of deeds executed by Margret to Isabel Idol, Hazel Denison, and Gertrude Reader and their successors in interest, herein appellees.

The district court ruled that the appellants had not identified any dispositive facts sufficient to controvert the presumption that Margret had made a valid delivery of the deeds to the appellees and consequently granted partial summary judgment to the grantees of the deeds and their successors in interest. From this ruling, the appellants have appealed.

This appeal involves only two counts of a complicated and contentious eight count case wherein the parties resolved difficult legal questions involving the admission of the will of an Arizona resident and its effect on the title to Kansas real property; the determination of the heirship of Margret; requests for accounting on nine tracts of land not involved in this appeal; an action to partition the nine tracts of land not involved in this appeal which were ultimately partitioned and sold for in excess of $1 million; and the determination of controversies involving the statute of limitations, assessment of interest, and extremely complicated accountings, some of which were agreed upon but most of which were resolved by court rulings. None of these questions are directly applicable to the two issues we face in this appeal but did involve all of the members of the extended family of John G. and Tilde Johannes and are set forth to explain why litigation which began on March 6, 2002, is only now drawing to a close with the appeal we face.

This appeal involves the property of Margret, and we set forth the facts in detail to establish the basis for the arguments of the parties and the rulings of the district court.

Margret was one of nine children of John G. and Tilde Johannes. Margret had four sisters, Gertrude Reader, Hazel Denison, Isabel Idol, and Tillie Zimmerman. Margret also had four brothers, Evilin, John H., Juel, and Luther Johannes.

Hazel had one daughter, Janila T. Caldaroni. Isabel had two sons, Kem and Harrison Idol. Tillie had two daughters, Vanda Beamer and Zella Kimbrell. Juel had one son, Jerry, and two daughters, Judy Randolph and Arlene Forwand. Luther had one son, Shon, and one daughter, Carol Jones. Luther was also survived by his wife, Freda. Hazel died during the course of litigation, and Harrison was named as the administrator of her estate and substituted as a party. Evilin died during the course of litigation and Kem, Harrison, and Donald Yaussi were named as coexecutors of his estate and substituted as a party.

Margret died unmarried, without children, and intestate on August 17, 1989. Appellants believed she died as owner in fee simple absolute of four parcels of land.

Some 22 years before her death, on May 22, 1967, attorney John F. Gernon sent a letter to Margret that provided instructions to Margret on how to transfer four pieces of property to her sisters by using the warranty deeds enclosed with the letter. It appears from the deeds that Margret signed them sometime in 1967.

All four warranty deeds included the following language: "Reserving unto party of the first part [Margret] and her assigns the full benefit, use, rents, issues and profits from the above described real estate, for and during her natural life." Margret deeded the property as follows:

"To Gertrude Reader, 'Lot 72 on Miami Street, City of Hiawatha, Brown County, Kansas.'

"To Isabel and Hazel, 'The North 80' of the West 23' of Lot 41 and North 80' of Lots 43 and 45 on Cherokee Avenue, in Knapp, Moon and Davis Second Addition to the City of Hiawatha. Including all personal property ...

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