Brief Fact Summary.
Plaintiffs sued Defendant to set aside a deed on the ground that it was never delivered to Defendant.
Synopsis of Rule of Law.
A deed does not have to be physically handed over or delivered to the grantee to be effective, but there is a rebuttable presumption of non-delivery if it is unrecorded and in the grantor’s possession.
Clemons, the owner of the property in question, died intestate leaving his estate to be administered by the probate court. A dispute arose between Clemons’ sister Williams and several of his nieces and nephews (Plaintiffs) and his nephew Cole (Defendant) regarding the division of the property. There was a deed to the property namingDefendant as the grantee. At trial, Defendant testified that Clemons deeded the property to Defendant alone for the sake of convenience and that Defendant was responsible for dividing the property between himself and Clemons’ two other nephews. Defendant testified that, on numerous occasions, Clemons told Defendant where the deed was kept and to get it recorded. Each time, however, Defendant told Clemons to keep it in Clemons’ home for safekeeping. Thus the deed was unrecorded and always in Clemons’ possession. The Probate Division of the Circuit Court of Wright County held that Clemons nevertheless effected delivery of the deed. Plaintiffs appealed.
Whether a deed has to be physically handed over or delivered to the grantee to be effective.
No. The trial court’s ruling is reversed and remanded for the deed to be set aside. A deed does not have to be physically handed over or delivered to the grantee to be effective, but there is a rebuttable presumption of non-delivery if it is unrecorded and in the grantor’s possession.
The grantor may have effectuated delivery of the deed but retains possession of it for safekeeping. Delivery, once completed, is not negated by the grantor’s continued possession. The key inquiry is whether the grantor intended a complete transfer; whether he intentionally gave up control of the document and of making it effective and operative as a transfer of title. However, if the grantor never showed the instrument to the purported grantee and the grantor retains possession, this is indicative of non-delivery. Here, the deed was unrecorded and in Clemons’ possession, thus raising the presumption of non-delivery. The burden of overcoming the presumption falls on Defendant. Defendant’s testimony that Clemons told Defendant on several occasions where the deed was kept and to get it recorded is not enough to overcome the presumption. Defendant never saw the deed or the box that contained it.