Daily Development for Monday, April 5, 1999

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

DEEDS; ALTERATION: Alteration of an instrument after delivery by the grantee to add a purported cograntee does not automatically vest partial title in the person whose name was added by the grantee.

Julian v. Peterson, 966 P.2d 878 (Utah Ct. App. 1998).

Ms. Julian quitclaimed her interest in real property to her brother, Mr. Corbridge, in 1969. Between 1969 and 1980, when the deed was finally recorded, someone added the name of Laretta Corbridge, Mr. Corbridge's wife, in handwriting as an additional grantee without Ms. Julian's knowledge or consent. Laretta Corbridge died in 1988 (two years before the deed was recorded).

In 1995, Mr. Corbridge executed and recorded an affidavit declaring that Laretta Corbridge, his deceased wife, was the same person who had been named as cograntee in the deed recorded in 1980. At the same time he executed and recorded the affidavit, Mr. Corbridge also executed and recorded a quitclaim deed to Ms. Julian and himself as joint tenants. Mr. Corbridge died shortly thereafter. Upon Mr. Corbridge's death, Mrs. Corbridge's children from a previous marriage claimed an intestate interest in the property. The trial court granted summary judgment in favor of Ms. Julian on the ground that the alteration after delivery invalidated the deed.

On appeal: held: Affirmed.

The claimants first argued that the alteration constituted a vesting of a cotenancy interest in Mrs. Corbridge, who was alive at the time of the alteration. The Utah Court of Appeals noted that alteration of the deed after delivery does not invalidate the instrument insofar as it operates as a conveyance to the original grantee. (Alteration of the deed prior to delivery would void it entirely.) But, by the same token, such alteration can have no effect on the title of that grantee, even if consented to by the grantor, as the grantor already has relinquished ownership of the property to the grantee.

The claimants then argued that the alteration, combined with the affidavit, constituted delivery of a cotenancy interest in the property by Mr. Corbridge to Mrs. Corbridge. The problem here, the court noted, is that Mr. Corbridge did not satisfy the basic requirements for creation and delivery of a granting instrument a deed. Even assuming, based upon the later affidavit, that Mr. Corbridge either altered the deed himself or directed its alteration, the fact remains that he never executed the deed. Further, the court claims that there is no evidence of delivery of the deed to Mrs. Corbridge. Although recording may raise a presumption of delivery, the delivery in this case occurred after Mrs. Corbridge had died.

Finally, the claimants argued that the execution and recording of the affidavit evinced Mr. Corbridge's intent to deliver an interest to Mrs. Corbridge's estate. Even assuming the somewhat contrary evidence of the simultaneous creation of a joint tenancy with his sister, the court noted, evidence of intent alone does not establish delivery of title. The affidavit was executed and recorded following Mrs. Corbridge's death, and could not constitute a delivery of title to her, and could not be construed as delivery of title to her estate, as the affidavit did not clearly manifest such an intent.

Comment 1: The court is totally unhelpful in indicating why Mr. Corbridge did what he did, when he clearly could have given title to Mrs. Corbridge's heir had he desired to do so.

Comment 2: It is hard to see how the opinion could go any other way, but the opinion nevertheless is interesting for what it does not say. It does not say that if Mr. Corbridge had altered the deed from his sister with the intent of conveying an interest to his wife, and had delivered the altered deed to her during her lifetime, and had later (during her lifetime) signed an affidavit evincing his intent, that this would have failed as a delivery of a deed. In other words, the court seems willing to entertain the notion that a grantor's signature to a document that does not contain a valid legal description, but refers over to a deed the grantor has not signed, might effectuate a valid execution of the deed. If this is so, then when is the deed delivered? Upon delivery? Upon recording? Or upon execution of the second document? And what if the second document is never recorded?

Despite the fact that some "homemade" transfers might be frustrated, it would be much cleaner if the court had simply concluded that a conveyancing instrument might be subscribed by the conveyancer, since any other method of conveyancing will lead to needless confusion and uncertainty of title.

Comment 3: There has been little change in the formalities of title transfer in at least a century, and the roots of our present system go back many centuries earlier to ceremonies of seisin on the boundaries of vast estates. But in less than a year the conveyancing industry will be faced with proposals to recognize electronic transfers that will end forever traditional notions of execution and delivery. It is difficult to foretell what new problems will arise, but there certainly will be a number that will be even more difficult to solve by analogy to the passing over of a clod of earth.

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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