Brief Fact Summary.
. Fischer (Claimant) was an incompetent whose father had deeded title to his land to her over five years prior to his death. A mortgage was foreclosed against the property for nonpayment, and the Claimant presented a claim against the estate for damages for an alleged breach of covenant in the deed.
Synopsis of Rule of Law.
A gift of realty can be consummated only by the execution and delivery of the deed. If either is encumbered, the donor gives only what he had to give.
The Claimant’s father deeded the land to her, in exchange for a token dollar, and then placed it in a safe deposit box. The deed was never recorded until after the father died, approximately 6 ½ years later, because back taxes were owed on the land. A small mortgage went unpaid and was foreclosed against the land, and the Claimant sought to recover damages from the estate. The lower court entered judgment for the claimant, and the defendant brought error.
Was the Claimant in the position to enforce the executory contract in the deed against her father during his lifetime, and to enforce it against his estate after his death, or to recover damages at law for nonperformance?
Reversed, and a new trial ordered.
The dollar had been given to her by the Claimant’s brother to give to her father, and was treated as a joke. The only consideration was the grantor’s love and affection for his unfortunate daughter. The consideration was meritorious, and insufficient to compel the performance of a purely executory contract.
The deed was a gift, consummated by its execution and delivery.
Title to the land passed subject to the mortgages, and coupled with the gift was a promise to pay them. Claimant’s father failed to complete the gift by failing to pay the mortgages. Claimant had no interest against the creditors.
The Claimant’s father deeded her the land and promised to pay the mortgages. Her father voided his promise by failing to pay the creditors, and a void promise is no more effective than no promise at all. Claimant’s interest in the land was subordinate to that of the creditors.