Brief Fact Summary. Maurice, Sweeney’s (P) intestate husband, deeded John Sweeney property. The deed was recorded. The property was deeded back by John to Maurice, on Maurice’s wish, lest John should predecease him, but the second deed was not recorded.
Synopsis of Rule of Law. If a deed has been formally executed and delivered, the presumption that the grantee assented to the transfer of the title or possession can be overcome only if there is evidence that no delivery or transfer was intended in fact.
Issue. If a deed has been formally executed and manually delivered, and there is no evidence of any intention not to deliver, has the deed been delivered?
Held. (Jennings, J.) Yes. Having a duly executed deed in possession is insufficient proof of legal delivery. Effective delivery mandates the intent to pass title. However, the presence of a manually delivered deed raises the presumption that the grantee agreed to the transfer of the title since it was to his benefit. Once a deed has been formally executed and delivered, this presumption can only be overcome if evidence is presented that delivery was not in fact intended. In the present case, the only motive argued by both parties for the making of the second deed was Maurice’s expressed wish to be protected in the event of John’s predeceasing him. This purpose would have failed unless the deed had been delivered with the intent to transfer the title, so the fact that there was legal delivery is established. John also argued that the deed had been meant to apply only if he died before John. This type of conditional delivery can only succeed if the deed is placed in the care of a third party who will keep it till the condition is fulfilled. The verdict is reversed.
Discussion. If a title is to be transferred with respect to property, the delivery must be voluntary and must have the mutual assent of both parties to the transfer. The term “escrow” is also used as meaning any deposit of a deed to be kept till a condition is fulfilled before delivery. Unless this conditional delivery to a third person who acts as depositary occurs, there is no escrow. In this case, conditional delivery is to the grantee and acts as an absolute transfer of title to the grantee.