Citation. 1981 OK CIV APP 18; 629 P.2d 800, 1981 Okla. Civ. App.
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The Defendant, Jay Rosengrant (Defendant), appeals from a finding that he does not possess legal title to a farm allegedly given to him by his uncle for failure of his uncle to make proper legal delivery.
Synopsis of Rule of Law.
When a grantor delivers a deed under which he reserves a right of retrieval and attaches to that delivery the condition that the deed is operative only upon death and further continues to use the property, these actions are really the grantor attempting to make the deed a will, which is unallowable.
Facts.
Harold and Mildred owned a farm in Oklahoma. The Defendant was one of their several nieces and nephews. In 1971, the Defendant met with Harold and was told that upon Harold and Mildred’s death, the deed to the farm would be his. The Defendant witnessed Harold’s banker take possession of the deed. After the deaths of Harold and Mildred, the Defendant recorded the deed. In 1978, the Plaintiff filed suit alleging that the deed was void and never legally delivered to the Defendant. The trial court found the deed to be void for failure of legal delivery and Defendant appeals.
Issue.
Whether the deed in question was given to the Defendant by legal delivery.
Held.
Affirmed. The deed was retrievable at any time by Harold, thus implying two conditions: (i) death of both grantors and (ii) recordation of the deed. This made the deed transfer an attempt to make the deed a will, which cannot be given effect.
In cases involving attempted transfers, it is the grantor’s intent at the time the deed is delivered, which is of primary and controlling importance.
When a grantor delivers a deed under which he reserves a right of retrieval and attaches to that delivery the condition that the deed is operative only upon death and further continues to use the property, these actions are grantor attempting to make the deed a will, which is unallowable.
Concurrence. The concurring judge focused on the self-serving nature of the Defendant’s testimony as basis to deny that the deed was ever legally conferred.
Discussion.
The court noted that a key factor was that Harold, the grantor, continued to operate the farm and treat it as his own long after he voiced his intent to vest title with the Defendant. Further, Harold was able to retrieve the deed at any time and that the Defendant was not allowed to record the deed until both Harold and Mildred died. These were the key facts that the court used to determine that the deed was never property delivered.
