Daily Development for
Wednesday, November 13, 1996

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

DEEDS; ALTERATION: Deed that was altered after delivery but before recording by erasing grantee's and replacing it with names of new grantees, is ineffective to convey title to new grantees, even if alteration is done with full knowledge and consent of all relevant parties.

Mann v. Mann, 677 So.2d 62 (Fla.App. 1 Dist. 1996).

In this bizarre vignette, A and B, husband and wife, made out a deed to A's mother. This deed was notarized and deliverd but not recorded. Subsequently, allegedly with the knowledge and consent of A, B, the mother, and the notary, C, A's new wife, "whited out" the name of the mother on the deed and replaced it with the names A and C. Allegedly this was done to save the recording tax on two deeds, the one in to the mother and one out from the mother to A and C. A and C later divorced, and the issue of the validity of the deed arose in the divorce proceeding. The court here concluded that the evidence tended to show that the mother owned the property, and that neither A nor C had any interest in it. Hence, the divorce court lacked any jurisdiction to adjudicate the title or deal with the property in the divorce distribution.

DEEDS; DELIVERY: Deed is void for nondelivery if deed given to a third person pending further instructions from the grantor since it remains subject to the grantor's control and can be revoked or annulled at will.

Sargent v. Baxter, 673 So.2d 979 (Fla.App. 4 Dist. 1996).

Grantor made out a deed to his daughter and gave it to his attorney, telling the attorney not to record the deed until receiving further instructions from grantor. Subsequently, grantor asked a friend to instruct the attorney to record the deed, but the friend did not do so. Two weeks later, grantor died. The attorney mailed the deed to the daughter, who recorded it. Subsequently, the estate contested the validity of the deed.

Held: Deed not delivered, and is void. The court held that the instruction to the friend did not change the fact that the grantor had reserved the right to decide whether or not the deed should be delivered, and never indicated to the holder of the deed any instruction to carry out the delivery.

Comment: This case should be distinguished from cases involving clear "death escrows," where the grantor instructs a party to deliver a deed upon the grantor's death. Where the grantor expressly reserves a right to withdraw consent to the post death delivery of the deed, the escrow is not viewed as a valid delivery. But where there is no express reservation of right, cases have upheld such escrows, even where it is quite likely that the grantor could have retrieved the instrument, such as in the instant case, where the deed was deposited with the grantor's attorney. See, e.g., Smith v. Fay, 293 N.W. 497 (Iowa 1940)(deed left with grantor's attorney to be delivered upon grantor's death held to be validly delivered).

In fact, although the instant case, like many others, makes much of the fact that a deed cannot be viewed as delivered while the grantor simultaneously continues to exercise discretion as to whether the interest actually passes, in fact courts in some jurisdictions have sanctioned a number of devices through which parties can accomplish just such objectives. For instance, in the noted case of St. Louis County National Bank v. Fielder, 260 S.W. 2d 483 (Mo. 1953), the grantor made out a deed of a remainder interest to a third party, reserving a life estate in the grantor. But the grantor also reserved the power to "invade the corpus," to "sell, rent, lease, mortgage or otherwise dispose of said property during [grnator's] natural lfietime." The court held that the delivery of the deed in fact evidenced an intention to give an interest to the grantee, and that the deed was not void as a will substitute.

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