Daily Development for
Friday, November 14, 1997

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

DEEDS; DELIVERY: Although physical delivery of a deed during lifetime ordinarily is required, other acts manifesting a delivery intent that coincide with the actual existence of a deed may suffice, including delivery of a xerox copy of an existing deed held "for safekeeping" by the grantor.

Evans v. Waddell, 689 So.2d 23 (Ala. 1997).

Not long prior to her death, decedent executed a deed of certain property to the plaintiff. She gave him a xerox copy of the deed, but retained the original in her safe deposit box, where her executor found it after her death. The plaintiff had taken possession of the property in question upon receipt of the copy of the deed, and a dispute arose between the estate and the plaintiff over possession and ownership (replete, allegedly, with allegations of child abuse and various other colorful details).

The trial court had granted the estate summary judgment on the grounds that plaintiff could not show any physical delivery of the actual deed to him.

On appeal: held: Reversed.

Physical delivery of a deed is not required for their to be an effective delivery. The mere existence of the deed, on the other hand, is not enough. But acts of the parties indicating that the maker of the deed had an intent presently to transfer an interest in the property may suffice, even if no deed is handed over. Here, the grantor gave the plaintiff a copy of the deed and, according the the plaintiff, told him that he could have the property. It is not clear whether she was aware that he had taken possession of it, but the whole point is that the factual record can be best developed on a full trial of facts, rather than on summary judgment.

Comment: There has been a gradual deterioration of the requirement of "manumission" over time, and appropriately so. Interests are transferred in a variety of ways modernly, and the law should expect the reasonable expectations of the parties. The editor is not suggesting that delivery of a xerox copy of a deed always should be indicative of an intent to deliver, but clearly if it can be proven that the grantor gave the grantee such a copy, expressed a conveyance intent, and kept the original for safekeeping, and there is no contemporaneous evidence contradicting this evidence of intent the necessary elements for delivery ought to be viewed as satisfied.

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 Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

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