Plaintiff sued Defendant seeking to declare the deed, which Defendant had recorded contrary to Plaintiff’s intent, invalid. Defendant counterclaimed, seeking a declaration that the deed was a valid of property. The district court held that there was no effective delivery of the deed because Plaintiff never intended to deliver it. Defendant appealed.
If there has not been actual delivery of a deed, the grantor’s intent may establish constructive delivery.
In 1974, Desmond (Plaintiff) was making arrangements to pass his property to his daughter,Elizabeth Lenhart (Defendant) upon his death. He therefore, executed a warranty deed and placed it in a safety deposit box, which Defendant had access to through a signature card. In July 1983, Defendant had to retrieve some insurance documents from the deposit box for Plaintiff when he was hospitalized after an automobile accident. After his release, Plaintiff checked the deposit box a found the deed missing. Defendant recorded the deed in October 1983, however, Plaintiff alleged that he had never given the deed to Defendant and that he did not intend for Defendant to have the property until after his death. Defendant refused to return the deed to prevent Plaintiff from mortgaging the property and using the money for alcohol.
Whether the grantor’s intent may establish constructive delivery of a deed if there has not been actual delivery.
Yes. The trial court’s ruling is affirmed. If there has not been actual delivery of a deed, the grantor’s intent may establish constructive delivery.
For delivery to be effective, the grantor must manifest an intent to presently divest himself of title. That intent is the crucial and determinative factor. Even if the deed is recorded and the purported grantee has possession, thereby creating the presumption of delivery, proof of the grantor’s contrary intent may rebut that presumption. Such proof is made by the preponderance of the evidence, but if the rights of a third party are implicated, clear and convincing evidence is needed.There is no third party involved here. Being in his eighties, Plaintiff testified that he did not intend to divest himself of title but rather that Lenhart should take the property upon his death. Moreover, Defendant’s proffered reason for refusing to return the deed was to prevent her father from mortgaging the property and using the money on alcohol, which does not rebut Plaintiff’s stated intent regarding the deed.