ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA03-310

March 31, 2004

MARGARET BURRIS, RANDY AN APPEAL FROM POPE COUNTY

BURRIS, CHARLES BURRIS and CIRCUIT COURT [CV02-462]

RICKY WAYNE BURRIS

APPELLANTS

V. HON. RICHARD E. GARDNER, JUDGE

Y.Z. BURRIS, SR., (Deceased) and

RICKY THOMAS BURRIS AFFIRMED

APPELLEES

Wendell L. Griffen, Judge

This cases arises from attempts by the parties to quiet title in thirty-five acres of land located in Pope County, Arkansas. The grantor of the land was Y.Z. Burris, Sr. (Y.Z.), deceased. The parties in this case are Y.Z.'s relatives. Appellants are Margaret Burris, Randy Burris, Charles Burris, and Ricky Wayne Burris.1 Appellee is Ricky Thomas Burris, Y.Z.'s son, who replaced Y.Z. as the party in interest after Y.Z. died.2 The circuit court in this case granted summary judgment in favor of appellees and ordered that title be quieted in appellees. We find no error and affirm.

The facts leading to the summary judgment order in this case are as follows. On May 16, 1990, Y.Z. created the Burris Trust, naming Colleen Hobbs as trustee. That same day, Y.Z. purported to deed the property that is the subject of this action to the Burris Trust. On October 4, 2001, Y.Z. and his wife, Agnes, purported to convey the same property to Y.Z. Burris, Jr. On May 21, 2002, Hobbs executed a trustee's deed, naming Y.Z. and Ricky Thomas Burris as grantees.

Appellants, who asserted that they owned the property by virtue of devolution from the death of Y.Z. Burris, Jr., discovered that Hobbs had attempted to transfer the property back to Y.Z. and Ricky Thomas Burris. Appellants thereafter filed a petition to quiet title the land. Appellees counterclaimed, also requesting that title be quieted in them. The parties thereafter filed competing summary judgment motions.

On the motions for summary judgment, the trial court considered the parties' pleadings, the trust document, the May 16, 1990 warranty deed, the May 21, 2002 trustee's deed, appellee's notice to appellants to vacate the property, and Y.Z.'s affidavit stating that his intent in 1990 was to convey all of the property to the trust. In a letter opinion and subsequently filed written order, the trial court ordered that title be quieted in favor of appellees. The court stated that if the intent of the settlor can be ascertained, it is the duty of the trial court to give it effect. Based on the 1990 deed from Y.Z. to the Burris Trust and the trust document, the court found that Y.Z. intended to convey the property to the trust, and therefore, that the trustee had the right to dispose of the property in accordance with the trust. Appellants appeal from that order. We hold that the trial court did not err in granting summary judgment in appellees' favor.

Appellants' sole argument is that the trial court erred in not finding that the 1990 deed was invalid because it purported to convey land to the Burris Trust, and not to the trustee. Appellee responds that the trial court properly determined that the intent of the grantor was to convey the property to the trustee, Hobbs, and therefore, that the conveyance was proper.

Before addressing these arguments, we note the language contained in the deeds and the trust document. The trust instrument, dated May 16, 1990, named Y.Z. as settlor and Hobbs as trustee. The land is described at thirty-five acres located on Pope County, Arkansas. Further, the trust document authorizes Hobbs to sell any property in the corpus of the trust in her discretion. The beneficiaries are listed as Hobbs, Robert Burris, Y.Z. Burris, Jr., and Ricky Thomas Burris. The 1990 warranty deed names Y.Z. as the grantor and identifies "The Burris Trust, Grantee" as the grantee. Hobbs signed on the blank which reads, "Grantee or Agent." The May 21, 2002 trustee's deed identified in the deed as the "Trustee of the Burris Trust," and sought to convey the property to Y.Z. and Ricky Thomas Burris as joint tenants with the right of survivorship.

Summary judgment is to be granted by a trial court when it is clear that there is no genuine issue of material fact to be litigated, and, on appellate review, the appellate court determines if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material question of fact unanswered. Tyson Foods, Inc. v. Adams, 326 Ark. 300, 930 S.W.2d 374 (1996). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002). We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.

When construing a deed, we ascertain the intention of the parties, and we examine the four corners of the deed to ascertain intent. Brown v. Johnson, 81 Ark. App. 60, 97 S.W.3d 924 (2003). Our first duty is to give effect to every word, sentence, and provision of a deed where possible to do so. Id. We will not resort to rules of construction when a deed is clear and contains no ambiguities, but we will do so when its language is ambiguous, uncertain, or doubtful. The controlling question in making this determination is whether the deed's terms are susceptible to more than one equally reasonable construction. When a deed is ambiguous, the court must put itself as nearly as possible in the position of the parties to the deed, particularly the grantor, and interpret the language in the light of attendant circumstances. Winningham v. Harris, 64 Ark. App. 239, 981 S.W.2d 540 (1998).

Appellants rely heavily upon authority from other jurisdictions, asserting that property cannot be conveyed to a trust, but must be conveyed to a natural or artificial person who is capable of taking title. They argue that. because a trust is not capable of taking title, the 1990 conveyance was invalid and subsequently rendered Hobbs incapable of conveying the property to appellees in 2002. However, we need not reach the issue of whether property may be conveyed to a trust because the property in question was not conveyed to a trust. That is, there is no genuine issue of material fact remaining with regard to whether the 1990 deed fails for lack of a named grantee. It does not.

A deed will not be void for uncertainty as to the grantee if the grantee is sufficiently described therein so that his identity may be made certain or discovered by proof aliunde. Treece v. Treece, 212 Ark. 294, 205 S.W.2d 711 (1947). In other words, a deed need not describe a grantee by name if it otherwise identifies the grantee or makes him susceptible of identification by extrinsic evidence. Crouch v. Crouch, 241 Ark. 447, 408 S.W.2d 495 (1966).

Here, the issue was not that no grantee had been identified. Rather, the issue was that both the trust and trustee appeared to be named as grantee. The 1990 deed indicated that the grantee was "The Burris Trust." However, the deed is also signed by Hobbs as "Grantee or Agent." Thus, the deed contains two ambiguities on its face. First, the obvious ambiguity is whether Y.Z. improperly attempted to convey title to property to the trust or to Hobbs as trustee. The second ambiguity is whether Hobbs was acting as a trustee or simply as an agent. Therefore, because ambiguities existed, the trial court properly looked to the other documentary evidence to resolve the ambiguities. Brown v. Johnson, supra.

As the circuit court found, when the 1990 deed and the trust document are construed together, it is clear that Hobbs was the true grantee of the property, as trustee of the Burris Trust. Both documents were executed on the same day. That the trust document clearly identifies Hobbs as the trustee supports that she signed the 1990 deed as trustee, rather than as an agent. Further, the May 21, 2002 deed expressly names Hobbs as "Trustee of the Burris Trust."

Appellants presented no opposing proof to rebut the settlor's intention. Their only argument was that the deed failed for lack of a grantee, and for the above reasons, their argument is not persuasive. Therefore, because the 1990 deed conveying the property to the Burris trustee trust was valid, the subsequent deed conveying the property from the trustee to appellees was valid. Accordingly, we hold that the trial court did not err in granting summary judgment and quieting title in appellee's favor.3

Affirmed.

Hart and Gladwin, JJ., agree.

1 The record does not reveal the nature of the various appellants' relationships to Y.Z.

2 Although Y.Z. is deceased, he is listed as a defendant on the circuit court's order and we have styled the case accordingly.

3 We note that the issue of after-acquired title was not litigated by the parties and accordingly, we do not address the issue on appeal.