Daily Development for Thursday, November 8, 2001

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

DEEDS; EXECUTION: Grantor's failure to sign deed can be corrected by reformation following grantor's death when evidence is clear that grantor and all parties concerned believed that he had signed the deed and lack of signature appears to be simple oversight.

Lane v. Spriggs, 2001 WL 1251236 (Tenn. App.10/19/2001)

A classic problem indeed - and one of first impression in Tennessee. The facts certainly are compelling. A had his farm surveyed into four parcels and the survey identified on each of the four parcels the name of the child (or grandchild) to whom A expected to give the property. A had an attorney prepare deeds to each of the four parcels to the respective donees, and took them to a notary, who witnessed his signature and provided notarization. Although A thereafter held the deeds for four years, when he fell ill he summoned one of the grantees and gave her the four deeds, asking that she record them, which she did. Much later, however, after A's death, it appeared that A had not in fact signed one of the deeds.

On a challenge from the other grantees, who claimed that the error meant that the three of them owned the entire property (the court fails to explain how they reached that conclusion anyway), the court held that the deed could be reformed and rendered valid, since the evidence was clear, cogent and convincing that the grantor had intended to sign the deed and in fact believed that he had signed the deed.

The court also noted that, in its view, it was relevant that, after the deeds were delivered and the grantor had died, the parties continued to treat one another as owners of their respective parcels, and the dispute did not arise until some time later when one of the parties decided to sell her parcel and a title search revealed the defect.

The issue is complicated a bit because the grantee of the unsigned deed, Louella, was not present at the time of recording. The party recording the deeds returned her deed to A, who later, before he died, transferred the deed to Louella himself.

The court simply noted that it may be unclear when and where delivery occurred, but that it was of the view that delivery had in fact occurred and that the deed should be treated as reformed and therefore executed nunc pro tunc.

Comment: Although normally, one wants to say that there should be some irreducible minimum that is required to establish the ceremonial act of deed delivery, it is easy to understand why courts would conclude that, where the equities are appropriate, almost anything can be accomplished by implication when it was not accomplished in fact. The court cites cases in Oregon and Florida as also permitting the execution of a deed to be accomplished through a reformation action.

There is, of course, a concern that the grantor is not here to ask about what he intended. Further, any experienced lawyer knows that notarization can be fudged and the parties' memories of what actually happened may also be somewhat imprecise. Perhaps this is why the court here also looked at the subsequent behavior of the parties to determine whether that behavior was consistent with the claimed events.

We should remember that frequently a court grants reformation in the face of the testimony of one of the parties to the original transaction screaming that the document should not be changed, or at least that it shouldn't be changed as proposed, since the changed language was not the intent of either party at the time of execution. If courts are able to ignore that kind of testimony and alter the written expression of the parties' intent, it seems acceptable that courts can carry out the intent of a decedent by reformation as well.

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