Opinion
File No. 8362.
Opinion filed June 21, 1940.
Rehearing Denied July 29, 1940.
Deeds.
Evidence that at time of execution of deed to daughter, grantor executed five instruments purporting to transfer and convey all his property to divers persons and handed instruments to his wife, saying, "Here, Mother, you take care of them," that during the remaining nine years of grantor's life deed remained in his home in family safe, and that after grantor's death, deed was removed from safe and recorded, sustained judgment that deed was never delivered, and that grantee did not acquire title thereunder.
Appeal from Circuit Court, Lyman County; Hon. Joe R. Cash, Judge.
Action to quiet title by Mary Kenobbie against Hattie Krause and others. From an adverse judgment, the named defendant appeals.
Affirmed.
Andrew S. Bogue, of Parker, and Danforth Danforth, of Sioux Falls, for Appellant.
M.Q. Sharpe, of Kennebec, for Respondent.
In this action to quiet title the plaintiff, Mary Kenobbie, claims to have succeeded to the ownership of an undivided one-third interest in certain real property as an heir at law of her late father, Ernest Krause. The defendant, Hattie Krause, a sister of the plaintiff, claims a fee simple title to the same real property as a grantee of the said Ernest Krause. The trial court found that the deed under which the defendant claims was never in fact delivered. The testimony discloses that at the time of the execution of the deed in question the said Ernest Krause executed five instruments purporting to transfer and convey all of his property to divers persons and handed these instruments to his wife, saying, "Here, Mother, you take care of them." During the remaining nine years of the life of the said Ernest Krause, this conveyance remained in the home in the family safe to which both Mr. and Mrs. Krause had access. After the death of Ernest Krause the deed in question was removed from the safe and placed of record. From an examination of all of the competent evidence in the record, we are unable to say that the evidence clearly preponderates against the finding of the trial court to which we have adverted (cf. Stalting et al. v. Stalting et al., 52 S.D. 309, 217 N.W. 386), and the judgment of the trial court is therefore affirmed.