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No. 97,156
JERRY JOHANNES and SHON A. JOHANNES, et al.,
JANILA T. CALDARONI, and ZELLA R. KIMBRELL, et al.,
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.
Appeal from Brown District Court; JAMES A. PATTON, judge. Opinion filed April 25, 2008. Affirmed.
Jack R. Euler, Joel R. Euler, and Charles D. Baskins, of Euler Law Offices, LLP, of Troy, for appellants.
Stephen W. Cavanaugh, of Cavanaugh, Smith & Lemon, P.A., of Topeka, for appellees.
Before CAPLINGER, P.J., MALONE, J., and LARSON, S.J.
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 located in the house on the above described real estate.'
"To Hazel, 'The West Half of the Northeast Quarter of Section 32, Township 3, Range 17, Brown County, Kansas.'
"To Isabel: 'The Southeast Quarter of the South West [sic] Quarter and Southwest Quarter of the Southeast Quarter, of Section 3, Township 1, Range 18; and The East Half of the Northeast Quarter of Section 32, Township 3, Range 17, all in Brown County, Kansas.'"
Margret signed the deeds and had them notarized. However, the acknowledgment and the notary's signature do not include the day or month that the deeds were acknowledged. According to both Hazel and Isabel, Margret delivered the deeds to them in 1967 or 1968. Isabel placed the deeds in a safety deposit box she owned with Hazel. Margret's name was not on this safety deposit box.
After being diagnosed with a terminal illness, Hazel removed the deeds from the safety deposit box and gave them to Isabel who placed them in a plastic box in her residence. Isabel forgot or misplaced their location until a search of her residence by her sons located the deeds in the yellow plastic box.
During Margret's life estate, she executed three right-of-way easements. The remaindermen did not join in any of these easements. After Margret's death, Isabel and Hazel began managing Margret's former property and received all of the income therefrom. This continued from 1989 through the beginning of 2002, a period in excess of 12 years.
On February 2, 2002, the extended Johannes family had a meeting to discuss selling the farmland they had operated as a family partnership for approximately 50 years. At Evilin's request, attorney Gernon prepared a letter that provided an opinion on who owned Margret's land. In the letter, Gernon concluded that Margret owned the disputed land at her death because no deeds had been recorded and no will had been offered for probate. Thus, Gernon concluded that the land passed to Margret's heirs at law. Shon and Jerry reviewed the contents of the letter at the family meeting. Based on the contents of the letter, Jerry accused Isabel and Hazel of misappropriating the family's share of the profits from Margret's land. Isabel responded by stating that she had "papers" showing that she and Hazel owned the property. After the meeting, Kem and Harrison found the deeds at Isabel's house and recorded them.
Unable to resolve the ownership issues regarding the disputed four tracts as well as other matters unrelated to this appeal, Jerry, Shon, Arlene, Vanda, Carol Ann, Freda, and Judy sued Isabel, Hazel, Janila, and the successors in interest of Margret and Gertrude. In count I, appellants sued to determine the heirs of Margret. In count V, appellants sued for an accounting and recovery of profits from the four disputed parcels of land. In count VI, appellants requested the court set aside the four deeds recorded on February 6, 2002, for lack of a valid delivery.
After discovery, appellees moved for partial summary judgment on counts V and VI, asserting that no facts existed to controvert a finding that Margret delivered the deeds in 1967 or 1968 to Isabel and Hazel. Appellants opposed summary judgment by raising arguments similar to those they raise on appeal.
In ruling on the motion for partial summary judgment, the district court found that the material uncontroverted facts were substantially as have been set forth previously in this opinion. The district court's decision set forth the controlling legal authority in the following manner:
"1. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and submissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may be reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. Saliba v. Union Pacific Railroad Company, 264 Kan. 128, 955 P.2d 1189 (1998).
"2. A non-moving party in a motion for summary judgment may not use mere allegations to dispute material facts, but instead must support its position by affirmative evidence. Lloyd v. Quorum Health Resources, 31 Kan. App. 2d 943, 77 P.3d 993 (2003).
"3. In determining a motion for summary judgment, a court must give to the party against whom summary judgment is sought the benefit of all inferences that may be drawn from the facts under consideration. A popular formula is that summary judgment shall be granted on the same kind of showing that would permit direction of a verdict were the case to be tried. If there is any question as to the credibility of witnesses or the weight of the evidence, summary judgment must be denied. TIMI v. Prescott State Bank, 220 Kan. 377, 553 P.2d 315 (1976).
"4. When one who has executed a deed retains it in his possession with the intention that it shall become operative on the grantor's death, no conveyance is effected and the grantor dies in full ownership of the property. Young v. M. Williams, 75 Kan. 243, 89 Pac. 12 (1907).
"5. Actual or formal delivery of a deed is unnecessary. A deed may be good by constructive delivery as well as by actual delivery. Any words or acts showing an intention on the part of the grantor that the deed be considered as completely executed and the title conveyed is sufficient. Tucker v. Allen, 16 Kan. 312 (1876).
"6. In order for a deed to operate as a valid transfer of title, it must be delivered during the life of the grantor. Delivery is largely a matter of the grantor's intention to divest himself of title, as shown by all of the surrounding facts and circumstances. Whether there was a delivery is ordinarily a question of fact. Agrelius v. Mohesky, 208 Kan. 790, 494 P.2d 1095 (1972).
"7. The question of delivery of a deed is largely a question of intention, ordinarily to be determined by the jury or trial court as a question of fact. When the facts are not controverted, the question should be determined by the Court as a question of law. Hoard v. Jones, 119 Kan. 138, 23 Pac. 888 (1925).
"8. Once there is a valid delivery, either to a grantee or to a third party, with an intention to effect a present conveyance, it makes no difference if the grantor re-acquires the deed, because title vested at the time of the delivery. The grantor is powerless to defeat this vesting of title. Hutton v. Hutton, 184 Kan. 560, 337 P.2d 635 (1959).
"9. In a deed conveying gifts to children or relatives, the reservation by the grantor of the property during his lifetime is evidence of intention to deliver the instrument before his death, for there could be no purpose in placing such a reservation in the deed if it were not delivered in his lifetime. Libel v. Corcoran, 203 Kan. 181, 452 P.2d 832 (1969)."
The district court's analysis largely restated the uncontroverted facts and the legal authority set forth above. The court then noted there was no evidence controverting the facts that Margret gave Isabel and Hazel the deeds on a date in the late 1960s and they placed the deeds in a safety deposit box in their names. The court then recounted the fact that Hazel removed the deeds from the bank box and gave them to Isabel who placed them in a yellow plastic box at her residence and forgot or misplaced them. The deeds were found in the box by Harrison and Kem, and they caused them to be recorded with the Brown County Register of Deeds on February 6, 2002.
The district court's decision then recognized the arguments made by the plaintiffs (appellants herein) that circumstances such as not filing the deeds, not changing ownership with the register of deeds and county treasurer, and other actions of Hazel and Isabel initially appeared to show there was no delivery of the deeds. The district court's memorandum decision then stated (utilizing the initials MJ for Margret, HD for Hazel, and II for Isabel):
"The correct point of inquiry in this motion is whether a delivery occurred with the intent to divest the title of grantor and to transfer it to grantees as shown by the evidence in the late 1960's. The evidence is uncontroverted that MJ asked her attorney to prepare the deeds at her request. The attorney advised her to deliver the deeds and recommended other estate planning strategies. The evidence also establishes that as a matter of law, that MJ delivered the deeds to HD and II who placed the deeds in their safety deposit box. There is no evidence in the record that establishes that MJ had access to the bank box. There is no evidence that indicates the deeds were redelivered to her. Even if she had a key to the safety deposit box, there is no evidence that her name was on the box as a joint tenant or a signatory on the signature card to allow access. The record contains no evidence showing any access to this safety deposit box by MJ. If Plaintiffs desire to establish this fact, it is their burden to support this contention with some evidence. Lloyd v. Quorum Health Resources, 31 Kan. App. 2d 943, 77 P.3d 998 (2003)."
The district court further held that the execution of the easements did not "affect, destroy or diminish the previous delivery of the deeds to her sisters." In referring to the reserved life estate in Margret, the court stated there would be no reason to reserve a life estate unless she intended to give the property to her sisters while she enjoyed the use and benefit of the assets during her lifetime. The court relied on Libel v. Corcoran, 203 Kan. 181, 452 P.2d 832 (1969), a case where a life estate had been reserved, and held in this case that uncontroverted material facts showed actual delivery with intent to transfer title, with the character of the deeds bolstering the fact of delivery, and with Margret continuing to exercise the benefits of a life tenant in regards to the property.
The district court then disposed of any argument as to the delivery of the deed to Hazel and Isabel where Gertrude Reader was the grantee. The court stated Gertrude's knowledge of the deed made no difference as the delivery was valid and transferred title. The court held it was the delivery by Margret of the deed to a third party during the grantor's lifetime that controls, relying on Reed v. Kathley, 187 Kan. 273, 356 P.2d 1004 (1960).
The court finally held that "[o]n the issue of delivery, there are no controverted material facts. The Court finds as a matter of law, that delivery occurred and the title vested in the grantees at the time of delivery subject to the life estate reserved by MJ." Summary judgment was granted, holding the deeds were validly delivered. This judgment was rendered March 7, 2005, but was not a final judgment until all the other controverted issues in the case were resolved. When all other judgments became final, a timely appeal was filed relating only to the delivery of the deeds issue and the companion accounting claim. If it is finally determined that delivery was not accomplished, then the grantees will be required to account for the income from the properties which they have received and retained.
The primary issue for our consideration on appeal is whether the district court erred in granting the appellees' motion for partial summary judgment.
The standards of review of summary judgment motions and the legal principles, presumptions, and burdens of proof relating to delivery of deeds will first be set forth.
"'"'Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.'"' [Citations omitted.]" (Emphasis added.) Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
"'"An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. The disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact."' [Citations omitted.]" Muhl v. Bohi, 37 Kan. App. 2d 225, 229, 152 P.3d 93 (2007).
Furthermore, mere speculation is insufficient to avoid summary judgment. The nonmoving party must submit affirmative evidence that controverts a material fact. K.S.A. 60-256(e); Seitz v. Lawrence Bank, 36 Kan. App. 2d 283, 289-90, 138 P.3d 388, rev. denied 282 Kan. 791 (2006). Similarly, "an unsupported challenge to a witness' credibility is not sufficient to create a genuine issue of material fact. [Citations omitted.]" Estate of Pemberton v. John's Sports Center, Inc., 35 Kan. App. 2d 809, 835-36, 135 P.3d 174, rev. denied 282 Kan. 788 (2002) (citing Brock v. Richmond-Berea Cemetery Dist., 264 Kan. 613, 623, 957 P.2d 505 [1998]; Hamming v. Ford, 246 Kan. 70, 75, 785 P.2d 977 [1990]).
Finally, "'a court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties.' [Citation omitted.]" Brennan v. Kunzle, 37 Kan. App. 2d 365, 378, 154 P.3d 1094 (2007).
The transfer of real property in Kansas is governed by K.S.A. 58-2201 et seq. Title to real property must be conveyed in writing. K.S.A. 33-106. The writing usually takes the form of a deed. See K.S.A. 58-2203; K.S.A. 58-2204.
The numerous statements of controlling legal authority utilized by the district court correctly set forth the unrefuted legal principles which govern where the issue to be determined is whether a deed was validly delivered. To supplement those principles, we further note that to transfer title through a warranty deed, the grantor must cause the deed to be delivered to the grantee during the grantor's lifetime. Agrelius v. Mohesky, 208 Kan. 790, 795, 494 P.2d 1095 (1972).
We are further taught by Justice Fontron's opinion in Agrelius that "[d]elivery 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 a present effect. (Reed v. Keatley, 187 Kan. 273, 356 P.2d 1004)." 208 Kan. at 795. Whether the grantor delivered the deed to the grantee is a question of intent and occurs where it is evidence from all the facts and circumstances surrounding the transaction that the grantor had a present intent to divest himself or herself of title to the property and vest it in the grantee. Libel, 203 Kan. at 185-86. Because delivery is a question of intent, it is normally a question of fact. However, when the facts are not controverted, then delivery is a question of law. Hoard v. Jones, 119 Kan. 138, 158, 23 Pac. 888 (1925).
The Hoard decision sets forth the important consideration in cases where a life estate is reserved, such as we face in our case, when it stated:
"The rule of law is that in deed of gifts to children or relatives, the reservation by the grantor of the use of the property during his lifetime is evidence of an intention to deliver the instrument before his death, for there could be no purpose in placing such a reservation in the deed if it were not delivered in his lifetime. [Citations omitted.]" 119 Kan. at 156.
When a deed that is duly executed and acknowledged is found in the grantee's possession, in a third-party's possession, or when the deed has been recorded, it is presumed that the grantor delivered the deed. Cole, Administrator v. Hoefflin, 187 Kan. 66, 69, 354 P.2d 362 (1960); Staats v. Staats, 148 Kan. 808, Syl. ¶ 3, 84 P.2d 842 (1938); Hoard, 119 Kan. at 158. Conversely, when a deed is signed and acknowledged but found in the grantor's possession, the law presumes that the grantor did not deliver the deed. See Cole, 187 Kan. at 69, 72-73 (Price, J., dissenting); Stump v. Smarsh, 153 Kan. 804, 808, 113 P.2d 1058 (1941).
The party challenging the preceding presumptions must supply clear and convincing evidence to rebut the presumption. Hoard, 119 Kan. at 157-58.
The appellants raise substantially the same arguments to us on appeal that were presented to the district court. Our consideration on appeal is limited to the documents that were submitted to and considered by the district court in making its ruling below.
A principle argument that appellants make is that the record below was insufficient to establish delivery as a matter of law because Hazel's and Isabel's credibility was not tested by cross-examination in front of a factfinder and, therefore, summary judgment was inappropriate.
The record is clear that Hazel stated that Margret delivered the deeds to her some time in 1967 or 1968. The appellants did not controvert this statement and in their brief stated: "[S]uch statements are not controverted in Plaintiffs' evidence and the probative value thereof must be determined by the Court." This statement which was also the response to the motion for partial summary judgment can only be construed to be an admission that appellants have no evidence to dispute the material facts concerning delivery except to argue that Hazel, who is now deceased, was untruthful under oath in her testimony as to the delivery of the deed to her, the placement of the deeds in a safety deposit box under her and Isabel's control, and the removal of the deeds from the box and delivery to Isabel.
The district court correctly focused its determination on the critical issue when it stated in its memorandum decision that "the correct point of inquiry in this motion is whether a delivery occurred with the intent to divest the title of grantor and to transfer it to grantees as shown by the evidence in the late 1960's."
There is nothing in the record to show that Hazel's testimony was untrustworthy, nor is there any showing that delivery did not occur as Isabel and Hazel have stated. The appellants have presented no evidence to controvert these facts.
We are clearly taught by Estate of Pemberton, 35 Kan. App. 2d at 835-36, and the cases cited therein, that "an unsupported challenge to a witness' credibility is not sufficient to create a genuine issue of a material fact. [Citations omitted.]" As we have said, the failure of appellants to provide affirmative evidence, contrary testimony, or a writing that challenges Hazel's or Isabel's statements concerning actual delivery of the deeds to them clearly justifies the district court's ruling granting partial summary judgment that valid delivery of the deeds occurred.
In this case, Margret executed and had her signatures acknowledged on the four deeds. She clearly manifested the intent to divest herself of title and vest it in Isabel, Hazel, and Gertrude. See Reed, 187 Kan. at 277. The deeds were in Hazel's and Isabel's possession which creates the presumption that they were delivered. See Hoard, 119 Kan. at 158. The reservation of a life estate by Margret and the lack of her control results in the law presuming that she delivered the deed during her lifetime. See Cole, 187 Kan. at 69. Finally, possession in Isabel and Hazel constitutes constructive delivery sufficient to transfer title to Gertrude even though Gertrude never received physical possession of the deed in which she was the grantee. See Reed, 187 Kan. at 277.
We have considered appellants' arguments concerning the probative value of uncontradicted evidence and credibility of witnesses, and the cases cited therewith, and find no applicability of these arguments to the clear and undisputed facts showing delivery in the late 1960's and appellants' failure to controvert such facts.
We have also considered the appellants' other arguments which we do not find to change our previously stated conclusions.
Any arguments that the deeds were incomplete because they did not show the month or day when they were acknowledged and they were not recorded when delivered is not supported. Recording is not necessary to effectively deliver a deed; delivery depends on the grantor's intent which here shows delivery was accomplished. Libel, 203 Kan. at 185. No authority has been provided as to why the deeds were not validly acknowledged, and such failure effectively waives such an argument. See Lee Builder, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, 859, 137 P.3d 486 (2006).
Appellants suggest it was improper to utilize a sworn statement from Hazel rather than a deposition and that they were not permitted to cross-depose her. Appellants' arguments amount to accusations and speculations and are insufficient to show any positive evidence that creates a genuine issue of material fact necessary to defeat a motion for summary judgment. K.S.A. 60-256(c); Seitz v. Lawrence Bank, 36 Kan. App. 2d 283, Syl. ¶ 8, 138 P.3d 388 (2006).
Appellants also claim it was erroneous for the district court to find that Hazel removed the deeds from the safety deposit box she shared with Isabel and gave the deeds to Isabel because those facts do not appear in Hazel's sworn statement. This may or may not be an error; but if it is, it has no relation to a material fact as it occurred long after delivery of the deeds had been completed–in fact, probably after Margret's death. Facts that have no bearing on a material fact are insufficient to defeat a summary judgment motion. Muhl, 37 Kan. App. 2d at 229.
Appellants argued that Hazel was not aware of what was deeded to her because she executed a quitclaim deed to her daughter Janila that included part of the disputed property she does not have any interest in. There is no nexus between an erroneous legal description in a 2002 deed and the clear delivery of the four deeds in the late 1960's. This argument has no merit.
Likewise, the claim that several parties saw Margret's 1974 will in attorney Gernon's office by which she attempted to devise land to her brother John that she had already given to her sisters does not require the district court to be reversed. As the district court noted, such a will has never been admitted, a copy is not in the record, and there is no evidence that it was signed or unsigned. Our holdings are clear that any factual assertion without an evidentiary basis in the record are deemed to be unsupported. Supreme Court Rule 6.02(d) (2007 Kan. Ct. R. Annot. 37). This assertion is not sufficient to be considered affirmative evidence to defeat a valid claim for summary judgment.
The claim that Margret's execution of three easements in the 1980s suggests she believed she had title to the land and never intended to deliver title to her sisters is not persuasive. Margret was the owner of record and the proper person to execute such documents, as was pointed out by the district court. Further, the easements do not shed any light on Margret's 1967 intent and are insufficient to controvert the material fact of delivery.
Finally, appellants theorize that Margret followed the advice of her attorney and did not deliver the deeds, that Isabel and Hazel only obtained possession of the deeds after Margret's death, and that no valid delivery existed. This is nothing more than bold speculation, and the appellants have provided no factual basis for their creative imagination despite their obligation to do so to defeat summary judgment. See Seitz, 36 Kan. App. 2d 283, Syl. ¶ 8.
With summary judgment properly granted based on the delivery of all four deeds, there is no basis for consideration of the claim for an accounting of the income from the four tracts of real property. That request was properly denied as no legal basis exists for appellants to be entitled to an accounting of profits from the deeded real properties.
After considering all of the arguments of the appellants, we affirm the district court.


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Gov. Rick Perry laughed when I asked him about a report that he'd spent little time in his state office in the first 16 days after he abandoned his race for president.
"The first 16 days," he said, with a bit of a scoff. "I'd suggest they might want to get a little bigger sample."
A bigger sample might not do much good.
The Dallas Morning News report relied on Perry's notoriously sparse official schedules.
The first few years of Perry's governorship, he made public a more extensive record of his activities.
But as we reported in 2004, Perry then started releasing only his "state schedule," which staff said didn't include his political schedule, spur-of-the moment activities or things for which he didn't need a schedule.
His 2010 Democratic challenger, Bill White, sought to make it a campaign issue, noting Perry's official schedule for a six-month period showed an average of seven hours of work weekly.
Perry, then and now, says he's working for Texans regardless of whether it's written down. He said last week that "24 hours, 7 days a week, 365 days a year. I'm on."
What a reporter "doesn't have access to is, who am I picking up the phone and calling and talking to? And as we're about to lose a tactical airlift wing up in Fort Worth, I'm talking to the delegation in Washington, D.C. It's not on my schedule, but I'm working and making those calls and what have you," Perry said.
Too bad Texans don't have access to that information, or to more information about Perry's other official, political and just-plain-interesting activities.
It would be good for Texans to know that even though candidate Perry spent a lot of time bashing Washington, Gov. Perry picks up the phone to call Texas' congressional delegation when he needs to. It could be enlightening to know more about what else he does.
"I think Texans look for results. They're not looking for someone to punch a time clock," Perry said. "I'll stick with my results, and then they can go make their argument at the next campaign."
Until then, reporters are left with reporting on the information that Perry chooses to release, even if he assures us there's so much more that he's not telling us.

subset: commoncrawl


text:
Valliant Effort From Bulldogs Falls Short
FAIRFIELD, Conn. – Yale head coach Brian Tompkins was interested in how his team would respond Sunday at Fairfield. After all, on Friday the Bulldogs had played 110 grueling minutes on a hot and humid night, including the last 100 a man down, in a scoreless tie with Colgate.
Tompkins was quite pleased with what he saw. Unfortunately, though, Yale's struggles to score continued, and the result was a hard-fought 1-0 loss to the Stags.
"It was a great response from our guys," Tompkins said. "We controlled the rhythm, tempo and flow pretty much from start to finish, but the name of the game is scoring goals, and we couldn't execute around the goal."
Fairfield's George Newton scored the only goal of the game with 18:32 remaining to spoil the spirited effort from the Bulldogs. Newton's goal came when he stole the ball at the 25-yard line, took a few dribbles and fired a shot inside the near post.
Yale (0-3-1) had a couple of opportunities to tie it, including a pair of corner kicks in the last six minutes, but couldn't capitalize.
"We played with a lot of courage and commitment," Tompkins said. "It's frustrating because I thought we played well, but we'll learn from it and continue to work to improve."
The Stags (2-1) hadn't played since a 1-0 loss to Boston College last Monday.
The Bulldogs had a 9-8 edge in shots and a 5-2 advantage in corner kicks.
Michael O'Keeffe stopped two shots to post the shutout for Fairfield, the defending MAAC champions.
Bobby Thalman made three saves for Yale.
The Bulldogs are back in action on Friday when they play at Quinnipiac at 4 p.m.
Report filed by Tim Bennett, Yale Sports Publicity


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Life Cycle Status: Obsolete | Last Orderable Date: 29/09/18
8-Channel Sound and Vibration Input Module for SCXI—The SCXI‑1531 is a signal conditioning module for integrated electronic piezoelectric (IEPE)‑compatible accelerometers and microphones. Each of the eight input channels includes a programmable AC instrumentation amplifier, a 4-pole Bessel lowpass filter, and an excitation current source. The SCXI‑1531 offers simultaneous sampling to preserve interchannel phase relationships. It can multiplex its signals into a single channel of the DAQ device, and you can add modules to increase channel count. With random scanning capabilities, you select only the channels from which you want to acquire data. This module also offers parallel-mode operation for faster scanning rates and BNC connectors to simplify signal connection.
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Christopher Woodfield - Conservation & Environment, Rainforest Conservation in Peru
After finishing my A levels, I knew my travelling adventure had started when I arrived at Taricaya. Tired from 3 plane journeys and a boat ride but none the less blown away by the beauty of the Amazon rainforest. My first impressions were of amazement and the vastness of where I was, travelling down the Madre De Dios River towards my home for the next 3 months.
I soon got used to the 5:30 starts and waking up to the sound of every insect you could imagine in the surrounding jungle. The work was tough and challenging but at the same time you could relax knowing where you were and just admire your natural surroundings. There were a variety of projects and it was great because every day was different. The work was done on a rota basis so on each activity you got to work with a different staff member and different volunteers.
One of the projects which we started and also completed whilst I was at Taricaya was the building of the new monkey enclosure for the four adult Spider Monkeys. This was great fun and involved a group of us carrying large planks of wood 2km into the dense forest. We got the initial structure in place after much heaving of wood and also a lot of time was spent sewing up the netting so the monkeys didn't escape! It was hard work but you feel it is all worthwhile when you realise you are actually making a difference. It just shows what teamwork can do.
The flora and fauna around the Taricaya reserve was something special. A five minute stroll and you've already seen a Jaguar, a baby River Otter, 2 Tapirs, 5 baby Spider Monkeys, 4 adult Spider Monkeys, a baby Howler Monkey and numerous wonderful birdlife including Macaws, Parrots and Toucans. The Canopy Walkway was definitely one of many highlights, especially seeing as it is South America's highest and you can watch the sunset into the trees before heading back for Leandro's "legendary" cooking.
One of the great things about this project is the fact you get the opportunity to learn so much, including trying out some of your Spanish on the local staff members! Every Friday we had a talk by one of the scientists which was always very interesting, especially by Stuart, the Conservation Manager. His Caiman talk, followed by the Caiman hunt is a great way to finish any week.
We glided down the river in the boat where the only sound was a frog croaking in the distance. We sat and watched for Stuart to leap onto the riverbank after catching a glimpse of the Caiman's eyes glow orange from the reflection of his head torch. He emerged with a big grin on his face and a 2 foot Caiman in his arms.
I arrived at Taricaya at the end of the dry season and it was fascinating to watch the season change into the wet season. We woke up one morning to find the river had risen 2 metres during the night which was quite a shock to say the least! A tropical storm is an unforgettable experience and one evening we were blessed with a tremendous lightening show which sparkled for hours in the sky and reflected back perfectly in the river below.
My volunteering experience was for 3 months and a great thing about Projects Abroad is that if you go for 3 months you are entitled to 2 weeks travelling time. I took this opportunity to visit other parts of Peru with 3 friends I had met at Taricaya. Peru is an amazing country and we visited the mountains, desert, cities and small market towns but came back to the rainforest to finish off a wonderful trip.
The staff and other volunteers were very friendly and it was great to be around so many different people and of a range of nationalities. Although volunteers came and went there was a great homely and close-knit feel about the place and I will always remember my time there.
Taricaya is a special place and volunteering there was a great way to experience the animals, wildlife, people and culture of the jungle region of Peru.
Volunteering is a fantastic way to spend a gap year and where better to do it than the Amazon Rainforest!
Christopher Woodfield
Dit verhaal is een persoonlijke ervaring van een vrijwilliger op dit project en dus een momentopname. Houd er rekening mee dat jouw ervaring hiervan af kan wijken. Onze projecten veranderen constant, omdat we inspelen op de lokale behoefte en we voortborduren op de behaalde resultaten. Ook verschillende weersomstandigheden kunnen de ervaring beïnvloeden. Lees meer over wat je kunt verwachten van dit project of neem contact met ons op voor meer informatie.


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SAN JOSE – Brent Burns will be back on the blue line tonight – not by design but because Jason Demers turns out to be sidelined by a hard hit he took in the first period of Thursday night's 2-0 win over Detroit.
Burns, of course, has had a terrific nine games at forward with five goals and five assists. And Coach Todd McLellan indicated Burns will still see some shifts up front. But because a so-far-unidentified call-up from Worcester won't be here soon enough to play against the Phoenix Coyotes, Burns goes back to the blue line.
"He spent the majority of his seven or eight years back there. I'm assuming it's probably easier for him to go back then it is to go up," McLellan said. "And that doesn't mean we'll use him back there all night. He'll allow us to have six there tonight and we may even play him up front for a while."
McLellan was practically silent on the injury to Demers.
"He's not going to play tonight and he's not feeling good today," the coach repeated twice when asked for specifics.
But a first-period hit by Red Wing center Cory Emmerton caught Demers on the jaw, and though he continued to play, it apparently did some damage. The fact McLellan wouldn't go into details suggest the possibility of a concussion as those are often the injuries NHL teams are most reluctant to discuss.
Dan Boyle said he got a good look at the hit during the game and thought it was something the league might review.
"I think the way they're calling it, it's something that needs to be looked at," Boyle said. "But that's a hockey play. His head was low. Where else was he going to hit a guy?"
"Reputation has a lot to do with it. Is his intent really to hurt Jason there? Knowing the player, I don't think so. But the definition of what they're calling is hit to the head," Boyle said before alluding back to a sucker punch he took from Corey Perry on Wednesday night. "A couple days ago, I get suckered to the head and it's not even talked about. We've got to clear up the definitions I guess."
Brad Stuart said he was on the ice when the hit occurred and only caught it on the periphery. But he seconded the notion that Emmerton, a former teammate, wasn't head-hunting.
"When I heard it was him I was pretty surprised actually," Stuart said. "He's not the type of player who's going to lay somebody out like that, but apparently he did."
*****Adam Burish – a healthy scratch the last two games – skated in Burns's spot on a top line with Joe Thornton and Marty Havlat in the morning skate.
The idea was to obviously keep the other three lines intact as the Sharks have been generating more offense lately. But McLellan said he wasn't locked into startng the game the way things looked this morning.
"Based on Demers, the way he felt this morning, it was a last-minute shuffle," McLellan said. "We'll spend some time thinking about our lines and how we want to play them. You can anticipate we go that way, but it might not be that way."
As far as Burish's recent play that earned him a spot on the bench, here's what the coach had to say:
"Adam and I talked about his play and the impact he has on the game and on our team. He's had some very good games for us throughout the year. We just think there's more in certain areas that he can bring. We had a good talk and I think he'll get an opportunity to play and show us."
****Logan Couture's gotten a lot of unwanted attention the last two days after he ended up falling on his backside trying to defend against Pavel Datsyuk in the first period of Thursday night's game. But he's taken it in stride, even joking about it on Twitter:
Hey @Datsyuk13 really bro? On my bday…cmonnnn.. Someone fix that ice in the corner..http://www.youtube.com/watch?v=LwyVi6Ppz0E …
(If that link doesn't work, here's another you can try: http://www.youtube.com/watch?v=FZeilmWeM20)
It was indeed Couture's 24th birthday. This morning I gave him a chance to share blame for that fall with a rut in the ice. Nope, he said, it was all Datsyuk.
"I don't know what I was doing, if I was crossing over or looking at the puck," Couture said. "He's just too good.
I was defending him all night so it wasn't much fun. He's a special player. He's tough to defend when he gets like that, when he gets space."
****The Ryane Clowe trade watch continues. The first thing a few of us were looking for this morning was his presence on the ice confirming no overnight deal had been made. Clowe was one of the last to appear from the locker room.
"I'm still here, bud," he said when I mentioned the above to him.
Reminder that the deadline is noon PDT on Wednesday.


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It was an odd day today. I know, most of my days are odd but this one was odder. It was a news producing day today and things were looking bleak by midday. We simply had no stories and I was, as usual, worried and verging on panic despite the amazing Giselle ( who I would steal and take to any company I ever work with) kept reassuring me that things would be fine and in any case she was reading so no matter what developed she would be the one on camera to suffer. Then it happened. While searching for regional news to pad that section I found a story that rather flummoxed me. I found something that suggested there had been another massacre in Guyana.
I was a bit surprised because the story apparently did not have any legs. I could not find it on any of my standard news sources. How could a major story – another massacre in Guyana – not be everywhere including the BBC? A few calls to our sources including a Minister who hung up on Nadine Hackett led us to believe the story was real. Even more strangely a quick internet trip to the usual Kaieteur News and Stabroek News sites showed the story was real. How the heck did this story not make it onto the radar? Even more strangely, speaking to one of my colleagues in another media house, without mentioning the story we had discovered, revealed they had no clue. I might have had a moment of guilt in not telling someone I truly respect about the story but a local exclusive is an exclusive after all. Welcome to the world of friendly competition.
We decided to go with the story as a lead. Nadine called our sources in Guyana and we cobbled together a story which might have not been the best but, given our lack of footage , worked out rather well. Amazingly, to cover the voice of the reporter in Guyana we managed to find her picture on Facebook…who knew it had an actual use? News time arrived and Giselle and I got ready wondering if we would have yet another exclusive. She read and I sat in control and produced. When we reached the weather I ran upstairs to watch the other stations…thank heavens our news is 1/2 hour before anyone else. Not surprisingly Gis ran out of the studio as the news finished to join me. We watched TV6, CNC3, CNMG and as each started their news we crossed our fingers we would not hear the word "Guyana". Shock of shocks each newscast started with no mention of a massacre.
There are few rewards in journalism other than feeling you have done the best story. Despite the silly concept that there is some glamour in what we do it is usually just a decidedly boring exercise. There is one great thing that excites us usually and that is a scoop. In as much as this is another horror for a great country it was hard to not have a moment of satisfaction when we realized all the other stations had missed the story. Our first headline was "another massacre in Guyana as 8 miners are found dead in Lindo Creek"…it was a risk and I am happy we took it.
Sadly, as crime becomes unavoidable here, I vetted a murder story only to realize when I looked at the story in the editor's area, that it was someone I knew very well. I never knew him by his real name when I encountered him at work but I just want to say – Trail…I am sorry you are yet another victim.


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President Barack Obama is ready to hit the road on a new campaign-style public relations trip, hoping to breathe new life into the push for stronger gun control laws…
A White House official would not comment on the timing of more presidential travel, but said people should expect to see Obama travel outside DC to bolster his insistence that gun control measures "deserve a vote" in Congress.
Obama will have help. Over the coming two-week congressional recess, representatives of the Brady Campaign and Mike Bloomberg's Mayors Against Illegal Guns tell BuzzFeed they're gearing up for major campaigns aimed at ginning up votes for gun control over recess. That includes grassroots lobbying of members while they're home and other efforts.
[T]hree months later, the NRA has regained its footing, rallying gun owners and lawmakers against new gun controls in a fierce lobbying effort that appears to be paying dividends on Capitol Hill…
"[NRA CEO] Wayne LaPierre made terrible mistakes early on. They took two very bad spills," Ross Baker, political scientist at Rutgers University, said Friday in a phone interview. "But they quickly recovered and they assumed their usual position of dominance…
A Democratic strategist familiar with the issue … [argued] that the more controversial elements of Obama's gun-control wish-list —particularly the assault weapons ban — were never expected to pass Congress.
By pushing hard for that ban, the strategist said, Democrats were simply negotiating from the left, always with the idea they could cash in that chip to get the universal background checks that stand at the core of their effort to keep violent people from buying guns.
"For once, the Democrats actually did things in a smart way. Instead of starting by giving in, they started by asking for more," the strategist said. "You could call it a momentum change, but this was always the way this was going to play out."
New York City Mayor Michael Bloomberg plans to spend $12 million on a television ad campaign meant to pressure senators into backing gun control efforts, including comprehensive background checks.
The national campaign from Mayors Against Illegal Guns will target states whose senators are on the fence, according to the New York Post…
"These ads bring the voices of Americans — who overwhelmingly support comprehensive and enforceable background checks — into the discussion to move senators to immediately take action to prevent gun violence," Bloomberg said in a statement issued by the group he co-founded in 2006.
The N.R.A. plans to roll out its own lobbying campaign, using print and broadcast advertising to reach lawmakers during the recess. But its leaders said that their investment was unlikely to rival the intensity of Mr. Bloomberg's spending, to be carried out through Mayors Against Illegal Guns, a group he co-founded.
"Can we match Mayor Bloomberg dollar for dollar?" asked Chris W. Cox, the group's chief lobbyist. "No one can. We don't have to."
He predicted that voters and senators would resist a message from an out-of-state magnate who is associated with government limits on soda and salt.
"What he is going to find out is that Americans don't want to be told by some elitist billionaire what they can eat, drink and they damn well don't want to be told how, when and where they can protect their families," Mr. Cox said.
So, why aren't the polling numbers on gun control swaying more members of Congress? Many of the poll numbers don't capture the nuances of public opinion. For example, there is a significant difference in the level of passion of voters on the two sides of the issue. While members of the National Rifle Association or conservative gun owners home in on this issue, gun-control proponents may not register that sort of excitement.
The level of voter passion may also depend on where the respondents live. In January, there were 44 gun homicides in Chicago. In 2011, there were only 40 gun homicides in North Dakota, South Dakota, Montana, Maine, New Hampshire, and Vermont combined. The political pressure for members of Congress from those states is much less than it would be for a senator from Illinois. In fact, Sens. Dick Durbin, a Democrat, and Mark Kirk, a Republican, both from Illinois, are two of the lawmakers who have come out strongly for some of these gun-control laws.
Lanae Erickson Hatalsky, the director of social policy and politics for Third Way, said her group has conducted polling in some of these states where gun violence isn't a major issue. When they asked if they thought policies would be effective in reducing crime, most respondents said it wouldn't. When asked if legislation was addressing a problem in their community or somewhere far away, most respondents went with the latter. The support for gun-control policies then is "really high but shallow," Hatalsky said.
"People will support this and they think it's a good idea, but they don't feel super deeply about it," Hatalsky said. "They're not convinced that it will necessarily work and that it will work to change their own lives."
"I don't think there's ever been an issue where the public has spoken so clearly where Congress hasn't eventually understood and done the right thing," Bloomberg said on NBC's "Meet the Press," adding: "I think we are going to win this. Celebrating in advance isn't the right thing to do. We've got to go out — we've got a lot of work ahead of us."
Bloomberg acknowledged that the assault weapons ban faces an uncertain future, though, because the public isn't as united on that issue…
"I don't think we should give up on the assault weapons ban," Bloomberg said. "But clearly it is a more difficult issue for a lot of people. I don't know that that reflects the NRA's power. It may be just that people have different views about assault weapons than they do about background checks."
Visit NBCNews.com for breaking news, world news, and news about the economy
Visit NBCNews.com for breaking news, world news, and news about the economy
As I've said before, we may not be able to prevent every act of violence in this country. But together, we have an obligation to try. We have an obligation to do what we can.
Right now, we have a real chance to reduce gun violence in America, and prevent the very worst violence. We have a unique opportunity to reaffirm our tradition of responsible gun ownership, and also do more to keep guns out of the hands of criminals or people with a severe mental illness.
We've made progress over the last three months, but we're not there yet. And in the weeks ahead, I hope Members of Congress will join me in finishing the job – for our communities and, most importantly, for our kids.


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These deeds were reported as recorded by the office of Marion County register of deeds. Property addresses come from appraisal records. All are warranty deeds unless otherwise noted.
Ronald J. and Brenda G Bartel to James R. & Leanna K. Hefley Revocable Trust; E/2 W/2 NE/4 Section 3, Liberty Township, with exceptions.
Dorene S. and Eugene C. Claassen to Dwight J. and Marilyn Unruh Flaming, quitclaim deed; W/2 SW/4 of Section 29, Menno Township.
Alison Kate Eden now known as Alison Kate Tajchman and Josh Tajchman to Chase Carlson; 422 N. Lincoln St., Marion.
Matthew M. Gehring to Kevin Tidwell; 206 W. B St., Hillsboro.
Mary Prudence Hanson to Janet Gail Wood, Dale Eugene Wood, and Robert David Hanson, transferrable on death warranty deed; 420 S. Cedar St., Marion.
Fred Hayes and Melanie Jackson to Fred Hayes, quitclaim deed; 2828 Xavier Rd., Lincolnville.
Sherrill K. and Dwayne D. Herbel to Henke Farms LLC; SW/4 of Section 34, Lost Springs Township.
Henry Clay Hiebert, individually and as trustee, to Church of God in Christ, Mennonite, Inc., trustee's deed; SE/4 NW/4 of Section 16, Liberty Township, SW/4 NW/4 of Section 16, Liberty Township, and SW/4 of Section 16, Liberty Township.
Robert Wayne and Esther E. Hiebert, Paul Wendell and Marilynn K. Hiebert, and Charles Waren Hiebert to Ronald J. and Brenda G. Bartel; W/2 SW/4 of Section 2, Liberty Township, and E/2 W/2 NE/4 of Section 3, Liberty Township, with exceptions.
Don R. and Gayla Ratzlaff to the Joel D. Klaassen and Nancy K. Klaassen Revocable Trust; undivided ½ interest in 116 S. Main St., Hillsboro (Hillsboro Free Press).
Sheriff of Marion County to Federal National Mortgage Association, sheriff's deed; Lots 2 and 3, Block 46, North Peabody, Peabody.
Phyllis J. Soyez to Kevin R. Hayward, quitclaim deed; 419 N. Lincoln St., Marion.
Jeremy B. and Amanda L. Terry to Terry and Chelsi Jones; 120 N. Lincoln St., Marion.
Jean D. Ward Revocable Trust to Sharon A. Harshman and Jeffrey C. Harshman, trustees, trustee's deed, re-recorded to show mineral interest; SE/4 of Section 23, Township 20, Range 5 in Grant Township and Section 26, Township 20, Range 5 in Grant Township.
Jarvis Whiteman to Gail L. Whiteman and Louise A. Whiteman, trustees, quitclaim deed; undivided ½ interest in 2174 Pawnee Rd., Marion, and undivided ½ interest in W/2 NW/4 Section 25, Township 19, Range 3 in Center Township.


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Google's Motorola Mobility to Close Factory in Texas
Fort Worth Plant to Close by End of Year; Employs 700 Workers Who Assemble Moto X Phones
Google Inc.'s attempt to build smartphones in the U.S. is ending almost as soon as it began, the result of weak sales and high costs.
The company's Motorola Mobility handset unit said Friday that it will close a factory in Fort Worth, Texas, by the end of the year.
Motorola, which Google plans to sell, opened the factory in May 2013. A few...