first-year law review

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Nov. 27 Property: Delivery of Deed

                We’ll begin today with delivery of deeds and delivery without escrow in particular. Here, deeds were draw up, but didn’t use an escrow agent to deliver the deed. This is problematic because then you have to ask if the grantor really intended to convey the property. For instance, in Williams v. Cole Johnnie offered Cole the deed but Cole said that Johnnie should keep it. Cole never saw the deed, and it was never recorded. The court held that if a deed is unrecorded and in the grantor’s possession, then nondelivery of the deed is presumed. The moral of the story, if you don’t want to take or give possession to the grantee, use an escrow agent. Because of a principle called “relation back” the deed is deemed to have been delivered when it was delivered to the agent.

                 Now we’ll look at two cases dealing with safety deposit boxes. The first is Kresser v. Peterson. Here, a woman with two children of her own and two step-children sidestepped her husband’s will when she executed a warranty deed naming herself and her two boys as grantees with a right of survivorship. She recorded the deed and left it in a safety deposit box to which only her and her sons had access. The court held that delivery was reflected in recording the deed and with the woman’s written authority that any of the grantees had exclusive access to the box. Contrast this result with the one in Lenhart v. Desmond. Lenhart executed a deed that was to go to his daughter, Desmond, after his death. He put the deed in a safety deposit box with some insurance policies. Lenhart was in an accident and Desmond went to get the policies. The deed disappeared, but was recorded several months later. When answering the question of if there was actual or constructive delivery, the court said that at the time of delivery, the grantor’s intent is of primary and controlling importance. In Lenhart, he didn’t want his daughter to have the deed until his death, so there was no intention to deliver before the death. In Kresser, her intention can be shown in the fact that the deed was recorded, the deed gave a right of survivorship to the sons, and the box was only in the grantees’ names.

                 Now on the topic of escrows, let’s discuss death escrows. The idea here is that in order to have an effective death escrow, the deed has to be irrevocable. In Vasquez v. Vasquez Juanita left a deed conveying the property to her brother with her attorney with instructions to deliver it after his death. In Rosengrant v. Rosengrant, Harold took the defendant to the bank, showed him the deed, the defendant handled the deed, then they left it with the bank. It was put in an envelope with Harold’s name on it. The court held that because of that, the right of retrieval was retained, and since Harold continued to use the land as if no transfer had taken place, Harold’s actions were nothing more than an attempt to employ the deed as if it were a will.


November 27, 2006 - Posted by | Property

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