J. William St. Clair
Margaret L. Workman
St. Clair & Levine Charleston, West Virginia
Huntington, West Virginia Attorney for the Appellants
Attorney for the Appellees
The Opinion of the Court was delivered PER CURIAM.
1. A joint tenant may convey his undivided interest in real property to a third
person. When one of two joint tenants conveys his undivided interest to a third person the
right of survivorship is destroyed. Such third party and the remaining joint tenant hold the
property as tenants in common. Syl. Pt. 4, Herring v. Carroll, 171 W. Va. 516, 300 S.E.2d
2. In reviewing a trial court's granting of a motion for judgment
notwithstanding the verdict, it is not the task of the appellate court reviewing facts to
determine how it would have ruled on the evidence presented. Its task is to determine
whether the evidence was such that a reasonable trier of fact might have reached the decision
below. Thus, in ruling on the granting of a motion for judgment notwithstanding the verdict,
the evidence must be viewed in the light most favorable to the nonmoving party. If on
review, the evidence is shown to be legally sufficient to sustain the verdict, it is the
obligation of the appellate court to reverse the circuit court and to order judgment for the
appellant. Syl. Pt. 2, Alkire v. First National Bank of Parsons, 197 W. Va. 122, 475 S.E.2d
3. In determining whether the verdict of a jury is supported by the evidence,
every reasonable and legitimate inference, fairly arising from the evidence in favor of the
party for whom the verdict was returned, must be considered, and those facts, which the jury
might properly find under the evidence, must be assumed as true. Syl. Pt. 3, Walker v.
Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963).
4. In determining whether there is sufficient evidence to support a jury verdict
the court should: (1) consider the evidence most favorable to the prevailing party; (2)
assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing
party; (3) assume as proved all facts which the prevailing party's evidence tends to prove;
and (4) give to the prevailing party the benefit of all favorable inferences which reasonably
may be drawn from the facts proved. Syl. Pt. 5, Orr v. Crowder, 173 W. Va. 335, 315
S.E.2d 593 (1983), cert. denied, 469 U.S. 981 (1984).
5. Delivery of a deed by the grantor with intent that it take effect as his deed and its acceptance, express or implied, by the grantee are essential to its validity. Syl. Pt. 3, Bennett v. Neff, 130 W. Va. 121, 42 S.E.2d 793 (1947).
6. Possession of a deed executed and acknowledged with all formalities is
prima facie evidence of delivery. Syl. Pt. 2, Evans v. Bottomlee, 150 W. Va. 609, 148
S.E.2d 712 (1966).
7. A deed or other instrument conveying an interest in real estate cannot be
delivered to the grantee in escrow. A delivery to him, even though stipulated to be upon
certain conditions, will be treated as an absolute delivery. Syl. Pt. 3, Heck v. Morgan, 88
W. Va. 102, 106 S.E. 413 (1921).
8. To constitute legal delivery of a deed, the grantor must intend that it
presently vest in the grantee the estate purportedly conveyed. The handing of the deed to the
grantee without that intent is not delivery. The purpose of the manual delivery may be shown
by circumstances. Among the circumstances admissible are the subsequent control of the
property described in the deed, and the subsequent conduct of the parties. Syllabus, French
v. Dillon, 120 W. Va. 268, 197 S.E. 725 (1938).
9. 'Whether there has been a delivery of a deed is a question of fact rather than of law depending upon the intent of the grantor to vest an estate in the grantee.' Syl. pt. 2, Parrish v. Pancake, 158 W.Va. 842, 215 S.E.2d 659 (1975), quoting, Garrett v. Goff, 61 W.Va. 221, 56 S.E. 351 (1907). Syl. Pt. 3, Daugherty v. DeWees, 172 W. Va. 553, 309 S.E.2d 52 (1983).
10. When, upon the trial of a case, the evidence decidedly preponderates against the verdict of a jury or the finding of a trial court upon the evidence, this Court will, upon review, reverse the judgment; and, if the case was tried by the court in lieu of a jury, this Court will make such finding and render such judgment on the evidence as the trial court should have made and rendered. Syllabus Point 9, Bluefield Supply Co. v. Frankel's Appliances, Inc., 149 W. Va. 622, 142 S.E.2d 898 (1965).
This is an appeal by Mr. David Click, Mrs. Anne Click, and the Estate of Mr.
Lewis Click (hereinafter Appellants) from an order of the Circuit Court of Cabell County
denying their motion for judgment as a matter of law or a new trial subsequent to a jury
finding that a 1993 deed conveying various parcels of real estate to David and Anne Click
was null and void. The jury's finding effectively conferred the properties in question to the
Appellee, Ms. Ernestine Walls.See footnote 1
The Appellants appeal to this Court, contending that the
lower court erred in failing to grant judgment as a matter of law or, in the alternative, a new
trial. We agree with the contention of the Appellants that the lower court should have
granted judgment as a matter of law and reverse the decision of the lower court.
In April 1993, Lewis Click engaged the services of Huntington attorney Seaton
Taylor to prepare a deed with respect to three of the jointly held properties, conveying his
undivided one-half interest in three of the five properties to his wife and son.See footnote 4
executed the deed at Mr. Taylor's office on April 21, 1993, and acknowledged the deed
before a notary public on that day. Mr. Click took possession of the deed as he left Mr.
Taylor's office. It was stipulated at trial that the execution and acknowledgement complied
with West Virginia law.
David Click testified that his father, Lewis Click, telephoned him and directed
him to open a safe deposit box, accessible only by David and Anne Click. David Click
further testified that Lewis Click thereafter delivered the deed to David, instructed David to
place the deed in the safe deposit box, and further instructed David not to record the deed
until Lewis' death. According to David Click's testimony, Lewis Click also told his son that
Ms. Walls understood that the properties were to be conveyed to Lewis Click's family, but
just to be sure, I'm going to give you this - - - I'm going to give you the properties now.
David Click also testified that his father told him and his mother that he would take care of
the properties, for [them] until his death. David Click testified that he placed the deed in
the safe deposit box, accessible only by Anne or David Click and that the deed remained in
the safe deposit box until after Lewis Click died on April 14, 1998.
David and Anne Click recorded the deed on April 28, 1998, fourteen days after Lewis Click's death. On June 19, 1998, Ms. Walls filed a complaint against the Appellants, alleging that by reason of the death of Lewis Click and the survivorship provisions of their joint titles, she became the sole owner of the three parcels in question. In her complaint, Ms. Walls requested that the lower court declare the deed null and void.
Trial was conducted on December 8, 1999, and the jury concluded that there was no effective delivery of the deed from Lewis Click to Anne and David Click. On January 14, 2000, the lower court entered an order in favor of Ms. Walls, holding as follows. Based upon the jury's verdict, the Court determines that the deed dated April 21, 1993, between Lewis R. Click, grantor, and Anne C. Click and David L. Click, grantees, is void and ineffective to transfer and convey the real property described therein. On January 24, 2000, the Appellants filed a motion for judgment as a matter of law or, in the alternative, a a new trial. The lower court denied that motion, without stated reason, on May 16, 2000. The Appellants thereafter appealed to this Court.
. . . .
In other words, we will reverse the circuit court's ruling denying such a motion if, after scrutinizing the proof and inferences derivable therefrom in the light most hospitable to the plaintiff, we determine that a reasonable factfinder could have reached but one conclusion[.]
Id. at 482, 457 S.E.2d at 159.
The appropriate standard for reviewing a jury verdict was enunciated in
syllabus point three of Walker v. Monongahela Power Co., 147 W. Va. 825, 131 S.E.2d 736
(1963), as follows:
In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.
In syllabus point five of Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U. S. 981 (1984), this Court held:
[i]n determining whether there is sufficient evidence to support a jury verdict, the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.
Thus, effective delivery of a deed must include (1) transfer of possession of a
valid deed satisfying all required formalities, and (2) intent of the grantor to divest himself
As this Court recognized in Evans v. Bottomlee, 150 W. Va. 609, 148 S.E.2d
712 (1966), [n]o particular form of delivery is required. Id. at 623, 148 S.E.2d at 721. A
deed may be manually given by the grantor to the grantee, yet this is not necessary. The real
test of delivery is, did the grantor, by his acts or words, or both, intend to divest himself of
title? If so, the deed is delivered. Id.
Possession of a deed executed and acknowledged with all formalities is prima facie
evidence of delivery. 150 W. Va. at 609, 148 S.E.2d at 713.
Consequently, upon the Appellants' proper presentation of evidence that they
obtained and retained possession of the instrument in the safe deposit box from the time of
delivery until after the death of Lewis Click, the Appellants established a prima facie case
of effective delivery.
In Liggett v. Rohr, 122 W. Va. 166, 7 S.E.2d 867 (1940), an instrument in the
form of a land grant by parents to their children was properly executed and delivered. It
contained, however, a provision that it was not to take effect until the mother's death.
Finding that a conditional deed is still deemed a valid immediate transfer, this Court held that
the children were vested with an immediate estate. Id. at 169, 7 S.E.2d at 869. The
Liggett Court relied upon the prior decision of Lauck v. Logan, 45 W. Va. 251, 31 S.E. 986
(1898). In Lauck, parents had executed and delivered a land deed to their son, containing
the following clause: But it is hereby distinctly understood and stipulated that this deed shall
take and be in full force and effect immediately after the said William Logan shall depart this
life, and not sooner. Id. at 252, 31 S.E. at 987. The Lauck Court held that the instrument
was a valid deed and conveyed a present estate to the grantee.
In Rust v. Commercial Coal & Coke, Co., 92 W. Va. 457, 115 S.E. 406 (1922),
the grantors conveyed property to their daughter, with the following clause: It is here fully
understood that this deed is not to take effect until after the death of the said Truman Gore.
. . . Id. at 460, 115 S.E. at 407. This Court ruled:
That the grantor reserved a life estate to himself does not affect the matter. What we are to consider is the estate granted, not what was reserved. Nor do we think that the provision in the deed that it is not to take effect until after the death of Truman Gore has any bearing on the case. . . .
. . . .
Under the terms of the deed in the case at bar, Susan L. Gore
was not entitled to possession until the death of Truman Gore
but her estate vested upon execution and delivery of the deed. .
Id. at 470, 115 S.E. at 411.
In Hensley v. Swann, 93 W. Va. 49, 115 S.E. 864 (1923), this Court recognized
as follows: [I]t has been repeatedly decided that a complete deed cannot be delivered to the
grantee, to be held by him as an escrow. In such case the condition of delivery is void, and
the deed becomes at once effective. Id. at 53-54, 115 S.E. at 865. Thus, an effective
delivery of a deed is not invalidated by the attachment of conditions to the delivery.
Based upon the foregoing, we agree with the contentions of the Appellants that
any conditions Lewis Click may have attached to the delivery of the deed are without legal
significance and did not render the delivery ineffective.See footnote 7
In attempting to overcome the presumption of an effective deed, Ms. Walls
countered the Appellants' case in two distinct manners. First, Ms. Walls interjected
speculation which essentially amounted to allegations of fraud; second, she contended that
Lewis Click's continued management and involvement with the properties after the transfer
of the deed evidenced lack of present intent to transfer the properties in 1993. We examine
those issues separately below.
Counsel for Ms. Walls also intimated during closing argument that there was something corrupt about Lewis Click's transaction, alleging that his actions were a fraud. Counsel for Ms. Walls stated that Lewis was compelled by greed, that [h]e welched on the deal, that he went out and he created this scheme, and that this was pretty slick. Counsel continued, It's underhanded. It's ruthless.See footnote 8 8
Discussing allegations of fraud in the context of deed delivery in Evans, this
Court quoted, with approval, syllabus point one of Hunt v. Hunt, 91 W. Va. 685, 114 S.E.
282 (1922), which counseled as follows: He who alleges fraud must clearly and distinctly
prove it, either by circumstantial or direct evidence. It will not be presumed from doubtful
evidence, or circumstances of suspicion. The presumption is always in favor of innocence
and honesty. 150 W. Va. at 619, 148 S.E.2d at 718-19. Conjecture and unsupported
insinuations do not overcome the presumption of valid delivery created by David Click's
testimony that his father gave him the document and asked him to open a safe deposit box
accessible by only David and Anne Click. To overcome the presumption of validity, the
opposition must present more than mere innuendo or supposition. The contrary proof must
be certain or reasonably conclusive. Downs, 89 W. Va. at 162, 108 S.E.2d at 877. We
conclude that the evidence presented by Ms. Walls was insufficient to overcome the
Appellants' prima facie showing of delivery.
Ms. Walls asserted that Lewis Click's continued involvement with the operation and management of the properties contradicted the assertion that he had intent to transfer the properties to his wife and son. Indeed, this Court has acknowledged that subsequent events may illuminate issues of prior intent. In the syllabus of French v. Dillon, 120 W. Va. 268, 197 S.E. 725 (1938), this Court explained as follows:
To constitute legal delivery of a deed, the grantor must
intend that it presently vest in the grantee the estate purportedly
conveyed. The handing of the deed to the grantee without that
intent is not delivery. The purpose of the manual delivery may
be shown by circumstances. Among the circumstances
admissible are the subsequent control of the property described
in the deed, and the subsequent conduct of the parties.
Of extreme distinguishing import, however, is the fact that the grantor in French maintained possession of the actual deed instrument. The deed was found with other papers of the grantor after his death. Additionally, there was conflicting testimony regarding the delivery of the document, some witnesses testifying that delivery was intended and others indicating that the grantor stated that he never delivered the deed and did not intend to. Upon the conflicting evidence and based upon the grantor's possession of the deed at the time of death, this Court held that there had been no delivery of the deed. 120 W. Va. at 271, 197 S.E. at 727.
In Reed v. Gunter, 101 W. Va. 514, 133 S.E. 123 (1926), the fact that the
grantor remained in possession of the land was also considered among numerous other
factors. As in French, the grantor in Reed had retained control of the deed instrument, and
the deed was found among his private papers at his death. The grantor's retention of the
document raised a presumption that the deed was never intended to pass the grantor's title.
. . . Id. at 518, 133 S.E. at 124.
In contrast to cases in which subsequent actions of the grantor induced findings
of lack of intent to convey, the Appellee in the case sub judice presented no evidence that
Lewis Click lacked intent to transfer his interest in the properties to his wife and son at the
time he transferred the deed in 1993. She presented no evidence that David or Anne
distorted the truth in any manner or that they did not have possession of the deed from 1993
until Mr. Click's death. The Appellee's case rests upon the assertion that the subsequent
actions of the grantor disproved his intent to convey the properties. Yet those very acts are
not wholly inconsistent with the Appellants' presentation of the case: specifically, that Lewis
Click wanted to continue to manage the properties for his wife and son while he was living;
that he handled all financial affairs for his wife and executed documents on her behalf;See footnote 10
Lewis Click indicated his intent that the deed not be recorded until after his death; and that
the conditions of delivery such as continuing to manage the properties or not recording the
deed until after Lewis Click's death do not invalidate the immediate and effective delivery
of the deed in 1993.
An explanation of that subtle distinction is offered as follows:
What constitutes a delivery of a deed is a question of law, but whether there has been a valid delivery generally presents a mixed question of law and fact. The facts and circumstances of the case must be considered, and from their detail is to be determined the legal question whether such acts and declarations constitute a legal delivery. In some instances, the acts or words of the grantor may so clearly evidence the delivery of a deed that only one conclusion can be reached as to the delivery-namely, that the instrument became an operative conveyance-and in such case delivery may be determined as a matter of law. In most cases, however, delivery is to be inferred from circumstances which by their very nature are equivocal and depend upon the subjective state of mind of the grantor. In such cases delivery becomes a question of fact and cannot be determined as a matter of law. This may be true even where the deed is placed in the actual possession of the grantee. Where the question of delivery is dependent entirely upon intention, it is to be determined from all of the evidence bearing upon the issue, including the conduct of the parties. The questions whether the requisite intent to make delivery existed, and whether the grantor executed his intention to pass title by a sufficient delivery, are both questions of fact and generally for the jury.
23 Am. Jur. 2d, Deeds §130 (1983).
Attempting a resolution of this issue and discussing the findings of fact regarding delivery of the deed in Evans, this Court reasoned as follows:
We are of the view, however, that in a great measure the
decision of this case calls for a proper application of legal
principles to facts which are without substantial dispute. It is
true that there is some conflict in the testimony but we believe
it not so material or pertinent to the legal principles involved to
permit more than one finding from that evidence.
150 W. Va. at 614, 148 S.E.2d at 716.See footnote 12 12
When, upon the trial of a case, the evidence decidedly preponderates against the verdict of a jury or the finding of a trial court upon the evidence, this Court will, upon review, reverse the judgment; and, if the case was tried by the court in lieu of a jury, this Court will make such finding and render such judgment on the evidence as the trial court should have made and rendered.
The singular conclusion warranted by the essentially uncontroverted evidence is that Lewis Click intended to divest himself of his one-half interest in the three properties and transfer that interest to his wife and son. It is incumbent upon this Court to reverse the lower court and remand with directions to order judgment for the Appellants.
Footnote: 1 1Ernestine Walls and Lewis Click were friends, business associates, and licensed realtors. Although they never entered into a formal, written partnership agreement, they filed partnership tax returns and conducted business as ELF Partnership.
Footnote: 2 2The apartment building, Hamill Apartments, is located on the corner of Eighth Street
and Tenth Avenue in Huntington, West Virginia. Mrs. Click continues to reside in that apartment. Since the lower court's denial of the post-trial motions, a condition of the court entering a stay pending appeal was that Mrs. Click pay $500.00 monthly rent into an escrow account. That amount has been paid monthly by Mrs. Click since May 2000. The Appellee also resides in the Hamill Apartment building.
Footnote: 3 3According to the Appellants, Mrs. Click began suffering from schizophrenia in the early 1960's and never fully recovered. She remains disabled, despite medications which improved her condition to some extent.
Footnote: 4 4This Court recognized the legitimacy of a conveyance by a joint tenant with right of survivorship in Herring v. Carroll, 171 W. Va. 516, 300 S.E.2d 629 (1983), and clearly established the ability of a joint tenant to convey his undivided interest to a third party, thereby destroying the right of survivorship. This Court stated as follows in syllabus point four:
Father tells you to go in the corner and stand on your head,
you'd probably do it to appease him. Especially when it comes
down to a business transaction where you're dealing with your
father's property. It's really Lou's property. He's giving it to
his son and wife. It's really his.
The difficulty with this argument is that there was no evidence underlying it.
Homestead Exemption: Mr. Click represented that he was the owner of the property and
obtaining a tax benefit for four to five years of approximately $350.00.
Loan Application: Mr. Click represented that he owned the properties when he obtained a
line of credit to pay for application of vinyl siding on a duplex on one of the rental properties.
Income Tax Returns: Mr. Click showed income from the property on his income tax returns.
Management of the Property: Mr. Click and Ms. Walls continued to manage the properties, including such activities as collection of rent and arrangements for repairs of the properties, without assistance from David or Anne Click.
Many cases involve what courts term mixed
questions--questions which, if they are to be resolved properly,
necessitate combining fact-finding with an elucidation of the
applicable law. The standard of review applicable to mixed
questions usually depends upon where they fall along the
degree-of-deference continuum: The more fact dominated the
question, the more likely it is the trier's resolution of it will be
accepted unless shown to be clearly erroneous. Tennant v.
Marion Health Care Foundation, Inc., 194 W. Va. 97, 106, 459
S.E.2d 374, 383 (1995).
Id. at 100 n. 3, 468 S.E.2d at 715 n. 3.