Daily Development for Monday, July 16, 2001

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

DEEDS; DELIVERY: Florida court concludes that recordation is, in fact, delivery, not just presumption of delivery.

Mattox v. Mattox, 777 So.2d 1041 (Fla.App. 5 Dist. 2001).

Mother executed three deeds one to each of her three sons transferring three different properties and reserving a life estate for herself in each.

The sons knew of these deeds, but one of the sons, David, did not live in the area and never saw the deed. Mother recorded these deeds, and arranged for the recorder's office to return the deeds to her. She kept the deeds until her death. Later, she released her life estate in two of the properties, but continued to live on the third property to which she had deeded the remainder to David until near her death. While in the hospital in her final days, she executed a deed conveying David's lot to another son. This was done at that son's behest and at a time when she arguably could not read the document.

Rather than just finding the second deed invalid, the court took what arguably was the more straightforward approach of finding the first deed valid.

This, of course, rendered any questions concerning the second deed moot. In upholding the validity of the first deed, however, the court had to deal with the contention that the first deed had never been delivered.

Although David had never had physical possession of the first deed, the court noted that the mother had recorded it. It stated that there was a line of cases that held that recordation established a presumption of delivery, but indicated that it chose not to follow those cases. Instead, the court embraced the notion, articulated in a few old Florida cases, that recordation *is* delivery, and not just an event raising a presumption of delivery, "in the absence of fraud on the grantor."

Comment: Like most solutions that go beyond what is necessary to solve the immediate problem, this conclusion by the court raises some significant questions. The questions may be answerable, but the question remains why is it necessary to ask them at all?

Typically, delivery requires more than intent to deliver it requires acceptance by the grantee. In this case, the grantee knew of the deed and it was beneficial to the grantee. It was safe to assume acceptance.

There are cases in other jurisdictions, at least, that would find that, with knowledge and acceptance of the deed by the grantee, there is delivery even when there is no physical transmission, or manumission, of the deed.

In sum, the court reached the right result, but may have adopted a rule that goes beyond what was necessary. The court suggests that, where the deed is recorded, delivery has occurred. Therefore, acceptance would not be considered at all. This is dangerous. In this modern day of environmental problems, taxation, and title issues, there may be a number of circumstances in which a grantee will argue that it did not intend to accept the deed, and that therefore there was no delivery. A future court might find it wise to add to the rule established in Mattox here an exception where the grantee challenges whether the deed was accepted.

There might be other cases, however, in which the grantee mistakenly records not intending to deliver an interest at all. Why is it so important that such an act be a conclusive delivery, even contrary to the grantor's intent? This is particularly likely in the coming "Brave New World" of point and click electronic filing.

Of course, if there is reliance on an apparent delivery, estoppel is available. But, except in the case of reliance, are the recording policies so strong as to justify enforcing a deed that the grantor never intended to deliver? Maybe some future court will find an exception in this case as well. But, in the end, with such exceptions, what's the point to the rule?

.Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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