by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

Here is a case of first impression for Kansas. What is the law elsewhere? What should be the law? Are we all through worrying about formalities in delivery of real property interests?

DEEDS; RESERVATION: Grantor can reserve an interest in real property in a third party who is a stranger to the deed. In the Matter of the Marriage of Wade, 884 P.2d 736 (Kan. App. 1994). The law is clear that the cardinal rule in interpreting the effect of a deed is to ascertain the intent of the grantor. In this case, the language at issue in the deed left no doubt that the grantors intended to reserve a life estate for two of their children in the two houses that existed on a parcel of land they conveyed to a family corporation. Extrinsic evidence clearly established that the grantors intended to give the property to the corporation, but wanted to preserve their children's interests in the houses for the remainder of the children's lives. The trial court found and the appellate court upheld the finding that the deed at issue effectively conveyed a life estate to each of the children in the houses where they lived.

Comment: It has been common in many jurisidictions to permit easements to be created in third parties by reservation in a deed. Creation of a life estate, however, is somewhat more problematic. A life estate is, in effect, "ownership" for life. Traditionally, such an interest had to be created by conveyance. A conveyance is more than a contract or a letter - it is a symbolic act that requires a combination of action, writing and intent that together amount to a "delivery." Can there be a delivery when the interest is contained in a deed given to a third party?

Consider: "To A in fee simple absolute except that the south half of this property is reserved in favor of B." B is not the grantor, but a stranger. Assume that the grantor never gives to B a copy of the deed. Has there been a delivery?

The facts sketched out by the court in the case at hand may support a conclusion that there indeed was a technical delivery. But we can't tell for sure because that issue clearly was not important to the court. It was interested solely in construing the intent of the grantor. For an act as significant as delivery of title, mere intent is not enough - there must be some form of "delivery." Should a lesser standard apply to life estates? Is the delivery requirement itself archaic? It would have been nice if the court focussed on some of these issues.

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