Cook v. Hall

P hyllis C ook , P ersonal rePresentative of the estate
of ronald d. C ook , aPPellant, v. sonia k. hall ,
individually and as P ersonal rePresentative
of the estate of viola W. C ook , aPPellee .
778 N.W.2d 744
Filed December 1, 2009. 	No. A-09-056.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Deeds: Proof. It is essential to the validity of a deed that there be a delivery, and
the burden of proof rests upon the party asserting delivery to establish it by a
preponderance of the evidence.
4. Deeds: Intent. To constitute a valid delivery of a deed, there must be an intent on
the part of the grantor that the deed shall operate as a muniment of title to take
effect presently.
5. Deeds. The essential fact to render delivery effective is always that the deed itself
has left the control of the grantor, who has reserved no right to recall it, and it has
passed to the grantee.
6. Deeds: Intent. No particular acts or words are necessary to constitute delivery of
a deed; anything done by the grantor from which it is apparent that a delivery was
intended, either by words or acts, or both combined, is sufficient.
7. Deeds. It is not necessary for delivery of a deed that grantees have knowledge of
the deed prior to the death of the grantor.
Appeal from the District Court for Douglas County: John d.
hartigan, Jr ., Judge. Affirmed.
James Walter Crampton for appellant.
Eileen A. Hansen, of Smith & Hansen, and Larry A. Duff
for appellee.
sievers and Cassel, Judges, and hannon, Judge, Retired.
hannon, Judge, Retired.
INTRODUCTION
Viola W. Cook, now deceased, executed and recorded a
deed to her home, referred to as “Lot 4,” to herself and her
168 	18 NEbRASkA AppELLATE REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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two children as joint tenants with right of survivorship. After
Viola’s death, the children listed Lot 4 for sale but did not suc-
ceed in selling it before one of the children, Ronald D. Cook,
died. phyllis Cook, as the personal representative of Ronald’s
estate, brought this declaratory action against Sonia k. Hall
(Sonia), Viola’s child and surviving grantee of Viola’s deed,
seeking to have the deed declared void on two theories at issue
in this appeal. phyllis alleged that the deed was not delivered
and that the joint tenancy had been severed by Ronald. The trial
court granted Sonia’s motion for summary judgment and dis-
missed the complaint. phyllis has timely appealed to this court.
We conclude that under the facts in this case, Viola’s recording
of the deed in joint tenancy on the date it was executed created
a presumption that the deed was delivered, there is no evidence
to rebut that presumption, and there is no evidence that Ronald
severed the joint tenancy. Therefore, we conclude there is no
material issue of fact, and we affirm.
bACkGROUND
In the complaint, phyllis alleges her appointment as personal
representative of Ronald’s estate. She also alleges that “[o]n
or about August 29, 1986, a deed purportedly executed by
Viola Cook to Sonia k. Hall and Ronald D. Cook concerning
Lot 4 was filed at the Douglas County Register of Deeds and
returned to Viola W. Cook, a true and correct copy of which
. . . is attached . . . .” The attached deed shows Viola, Ronald,
and Sonia as the grantees. phyllis further alleges in the com-
plaint that the deed was never delivered to Sonia or Ronald and
that Ronald was not aware of said deed during Viola’s lifetime.
In addition, phyllis alleges that Ronald died after Viola and that
prior to Ronald’s death, he severed any joint tenancy which
would have existed between him and Sonia. phyllis asked the
court to declare the deed void and find that Ronald’s estate is
entitled to a one-half interest in Lot 4.
Sonia’s answer contains a general denial plus allegations
that essentially support the factual allegations of the com-
plaint, but disputes and denies the conclusion of no delivery
and severance. In regard to delivery, Sonia alleges that Viola
mailed to Sonia a photocopy of the recorded deed along with
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Cite as 18 Neb. App. 168

a document giving Sonia power of attorney over Viola’s real
estate decisions. Sonia further alleges that in December 2006
or January 2007, Viola told Sonia where the original deed was
located, and that Sonia retrieved it shortly before Viola’s death.
We note that Neb. Ct. R. pldg. § 6-1108(d) provides in part that
“[a]verments in a pleading to which no responsive pleading
is required or permitted shall be taken as denied or avoided.”
phyllis did not need to respond to Sonia’s allegations, and they
are deemed denied.
This appeal is made more complicated by the fact that the
parties did not follow Neb. Rev. Stat. § 25-1332 (Reissue
2008), which provides in part: “The evidence that may be
received on a motion for summary judgment includes deposi-
tions, answers to interrogatories, admissions, stipulations, and
affidavits.” The bill of exceptions contains none of these types
of evidence or stipulations. The bill of exceptions consists only
of copies of documents which were offered into evidence and
not objected to, but were also largely unexplained. The docu-
ments include (1) Viola’s will, executed in 1990, leaving her
estate to her two children equally; (2) a codicil to that will,
executed in 2002, providing that a piece of real estate she had
acquired after the execution of her will should go to her grand-
son; (3) the original of the deed in question; (4) a listing agree-
ment showing that on July 19, 2007, Ronald and phyllis listed
Lot 4 for sale; (5) a listing agreement showing that on January
18, 2008, Sonia and her husband listed Lot 4 for sale; (6) a
document entitled “Estimated Sellers Figures,” in connection
with each of the two listing agreements, showing the broker’s
estimate of what the sellers would realize if Lot 4 sold for the
amount shown on the listing; and (7) court documents showing
that Ronald and Sonia were appointed copersonal representa-
tives of Viola’s estate and that Sonia was appointed succes-
sor copersonal representative of Viola’s estate after Ronald’s
death. The documents in the record also show that Viola died
on January 24, 2007, and that Ronald died on September 29,
2007. As previously stated, the parties did not object to the
admission of the documents into evidence.
The pleadings and the documents do not establish all of the
facts the parties seem to assume in their briefs. The pleadings
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and the documents show without dispute that on August 29,
1986, Viola executed, acknowledged, and recorded a deed
for Lot 4 to herself, Ronald, and Sonia as joint tenants with
right of survivorship, and that the deed was returned to her.
In their briefs, the parties agree that Viola lived on Lot 4 until
her death on January 24, 2007, at 84 years of age. The evi-
dence shows that Ronald and Sonya were Viola’s children and
that after she died, they listed Lot 4 for sale but did not con-
tract to sell it before Ronald’s death on September 29, 2007.
Thereafter, Sonia and her husband listed the home for sale with
the same broker.
ASSIGNMENT OF ERROR
phyllis alleges that the trial court erred in granting summary
judgment in favor of Sonia because the facts in regard to deliv-
ery and severance of the joint tenancy are controverted.
STANDARD OF REVIEW
[1] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as
to any material fact or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to
judgment as a matter of law. Hauptman, O’Brien v. Turco, 277
Neb. 604, 764 N.W.2d 393 (2009).
[2] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party
against whom the judgment is granted and gives such party
the benefit of all reasonable inferences deducible from the
evidence. Id.
ANALYSIS
Delivery of Deed.
[3-5] phyllis first contends that the trial court erred in grant-
ing summary judgment because there is a genuine issue of fact
in regard to whether the deed was delivered. It is essential to
the validity of a deed that there be a delivery, and the burden
of proof rests upon the party asserting delivery to establish it
by a preponderance of the evidence. Caruso v. Parkos, 262
Neb. 961, 637 N.W.2d 351 (2002); Brtek v. Cihal, 245 Neb.
756, 515 N.W.2d 628 (1994). To constitute a valid delivery of
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Cite as 18 Neb. App. 168

a deed, there must be an intent on the part of the grantor that
the deed shall operate as a muniment of title to take effect
presently. Id. The essential fact to render delivery effective is
always that the deed itself has left the control of the grantor,
who has reserved no right to recall it, and it has passed to the
grantee. Id.
Sonia contends that there was delivery of the deed because
the deed was recorded. For the moment, we will ignore her
other allegation that she possessed the deed before Viola’s
death. Relying on Brtek, phyllis asserts that “Sonia’s version
of the delivery does not support the vital factual conclusion
that Viola’s intent was relinquishing all dominion over [the
deed] and of making it presently operative as a conveyance
of the title to the land.” brief for appellant at 7 (emphasis
omitted). The facts in Brtek are not comparable to the facts in
the instant case. In Brtek, the deceased had executed a deed
to the “Urbanek place” to himself and his sister as joint ten-
ants and he then gave the deed to his mother, a woman who
dominated the family. 245 Neb. at 762, 515 N.W.2d at 634.
After the grantor’s death, the mother gave the deed to the
sister and told her the land described in it was hers. The deed
was recorded a short time later. Following a trial, the court
found that the deed was never delivered during the grantor’s
lifetime. The Nebraska Supreme Court affirmed the trial
court’s finding.
[6] phyllis also ignores an important discussion in the
Brtek decision. The court noted the proposition that states:
“No particular acts or words are necessary to constitute deliv-
ery of a deed; anything done by the grantor from which it is
apparent that a delivery was intended, either by words or acts,
or both combined, is sufficient.” Brtek, 245 Neb. at 765, 515
N.W.2d at 636. The Brtek court then went on to discuss vari-
ous cases where delivery was in question and the acts within
these cases that showed intent to deliver. One of the cases
the court discussed was Perry v. Markle, 127 Neb. 29, 254
N.W. 692 (1934). In Perry, the deed had been in the posses-
sion of one of the grantees from the time it was executed and
the deed had been recorded several months after it had been
signed and acknowledged. The Brtek court commented on
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the presumption normally given when a deed is found in the
possession of the grantee and observed the following about the
Perry decision:
Although the syllabus of the court in Perry states that
“[d]elivery of a deed by the grantor to one of several
named grantees is sufficient delivery as to all,” it is
clear from a reading of the opinion that this was only
one of several factors which were considered in reach-
ing the conclusion that a valid delivery had been made.
perhaps of great importance were the facts relating to
adverse possession and statute of limitations and the fact
that the deed was recorded prior to the death of the one
grantee. Recordation of a deed generally presumes deliv-
ery. Kresser v. Peterson, 675 p.2d 1193 (Utah 1984).
Brtek v. Cihal, 245 Neb. 756, 766, 515 N.W.2d 628, 636
(1994).
In deciding Brtek, the Nebraska Supreme Court also dis-
cussed Kresser v. Peterson, 675 p.2d 1193 (Utah 1984). In
Kresser, the grantor executed and recorded a deed to her home
naming herself and her two children as joint tenants with right
of survivorship. The grantor put the recorded deed in a safety
deposit box to which the two children were permitted access
if they wished. The children did not know about the deed and
did not have a key to the safety deposit box. In affirming the
trial court’s finding that there was delivery of the deed, the
Kresser court said: “An effective deed requires delivery, actual
or constructive, without exclusive control or recall. Recording
generally presumes delivery. Delivery to one cotenant or
reservation of an estate connotes delivery to all cotenants,
where the grantor is also the grantee.” Id. at 1194 (empha-
sis supplied).
The significant facts in Kresser are quite close to the facts in
the present case. In the instant case, the evidence shows with-
out dispute that Viola executed, acknowledged, and recorded
the deed on the same date and had the deed returned to her.
Viola remained in possession of both Lot 4 and the deed. It
is significant that Viola was one of the grantees, along with
Ronald and Sonia. “If only one joint tenant is in occupancy of
the property, he or she must be considered as possessing, not
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Cite as 18 Neb. App. 168

only for himself or herself, but also for his or her cotenants,
although there is no contract between them.” 48A C.J.S. Joint
Tenancy § 26 (2004).
[7] It has also been held that it is not necessary that grantees
have knowledge of the deed prior to the death of the grantor.
Smith v. Black, 143 Neb. 244, 9 N.W.2d 193 (1943). In Smith,
the appellants maintained that because the grantees had no
knowledge of the deed, there was no delivery inasmuch as there
was no assent by the grantees. The Smith court stated: “‘The
recording of a deed will not of itself constitute a delivery to the
grantee in the absence of an acceptance by him of the instru-
ment, but if subsequently accepted the deed will be valid.’” 143
Neb. at 252, 9 N.W.2d at 198. Accord Ehlers v. Seip, 136 Neb.
722, 287 N.W. 202 (1939). See 26A C.J.S. Deeds § 82 (2001).
The Smith court concluded: “We think that the most that can
be said for this statement is that proof of acceptance is but one
evidentiary phase by which delivery may be proved.” 245 Neb.
at 252, 9 N.W.2d at 198.
In the instant case, shortly after Viola’s death, Ronald and
Sonia listed the real estate for sale, and they did so as indi-
viduals and not as personal representatives of Viola’s estate.
This conduct, occurring while both surviving grantees were
alive, clearly shows their acceptance of the benefits of the deed
in question.
As previously stated, Sonia also argues, based on allegations
in her answer, that a copy of the deed had been mailed to her
by Viola and that she later obtained possession of the actual
deed with Viola’s consent before her death. This may well be
the case, but there is no valid evidence on that point. There is
no affidavit or other valid evidence to establish these facts and
allegations in the answer. We therefore disregard any claim
that either Sonia or Ronald knew about the deed or obtained
possession of it before Viola’s death. In the complaint, phyllis
only alleges that Ronald did not know about the deed until after
Viola’s death, but this does not establish that Sonia knew about
the deed.
Under the status of the record, we conclude that Viola exe-
cuted and recorded the deed to herself and her two children and
had it returned to her and that she had possession of the deed
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and Lot 4 until her death many years later. Under the authority
of the cases discussed above, we conclude that the deed was
delivered and that there is no genuine issue of material fact in
regard to delivery.
Severance of Joint Tenancy.
phyllis next maintains that the trial court erred in granting
summary judgment, because there is a genuine issue of mate-
rial fact as to whether Ronald severed the joint tenancy by list-
ing and possibly selling Lot 4 before he died. Neb. Rev. Stat.
§ 76-2,109 (Reissue 2003) provides: “There shall be no sever-
ance of an existing joint tenancy in real estate when all joint
tenants execute any instrument with respect to the property
held in joint tenancy, unless the intention to effect a severance
expressly appears in the instrument.” There is no document
which expressly appears to effect a severance. The listing
agreement does not mention joint tenancy or severance. The
case of Hughes v. de Barberi, 171 Neb. 780, 107 N.W.2d 747
(1961), holds that a contract to sell real estate in joint tenancy
severs the joint tenancy and the joint tenants become tenants
in common. Since the Hughes case was decided in 1961 and
§ 76-2,109 was enacted in 1979, we are inclined to think the
Hughes rule is no longer the rule. However, since there is no
evidence a contract to sell Lot 4 was ever entered into, we
need not spend resources determining the effect of a contract
to sell.
phyllis also argues that there is a genuine issue of fact as
to whether Lot 4 was sold, thereby severing Robert’s joint
tenancy with Sonia. As we just stated, there is no evidence of
a contract to sell Lot 4. However, phyllis argues that a “‘clos-
ing statement’” related to the listing for sale indicates that a
sale may have occurred to sever the tenancy. brief for appel-
lant at 9. We do not find a closing statement in the documents
in evidence. The evidence does contain a document entitled
“Estimated Sellers Figures” found with each of the two listing
agreements. both such documents are dated the same date as
their respective listing and are clearly the broker’s estimate of
what sellers could expect to realize after estimated expenses if
the property sold for the listed sale price. There is no evidence
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Cite as 18 Neb. App. 168

that Lot 4 was sold, and accordingly, there is no evidence that
the joint tenancy was severed.
CONCLUSION
We conclude that there are no genuine issues of material
fact in regard to delivery of the deed and severance of the joint
tenancy. After a movant for summary judgment has shown
facts entitling the movant to judgment as a matter of law, the
opposing party has the burden to present evidence showing an
issue of material fact which prevents judgment as a matter of
law for the moving party. Martin v. Curry, 13 Neb. App. 171,
690 N.W.2d 186 (2004). See, In re Estate of Ellis, 9 Neb. App.
598, 616 N.W.2d 59 (2000); Sindelar v. Hanel Oil, Inc., 6 Neb.
App. 349, 573 N.W.2d 782 (1998); Weatherwax v. Equitable
Variable Life Ins. Co., 5 Neb. App. 926, 567 N.W.2d 609
(1997); Northern Bank v. Pefferoni Pizza Co., 5 Neb. App. 50,
555 N.W.2d 338 (1996). phyllis, as the opposing party, has
failed to meet her burden. Accordingly, the judgment of the
trial court is affirmed.
affirmed.
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