Gilbert v. McSpadden - 91 S.W.2d 889 (Tex. Civ. App. 1936)

Rule:

In order to constitute a delivery of a deed, the facts and circumstances in evidence must show an intention on the part of the grantor that the deed shall presently become operative and effective.

Facts:

The decedent and his wife executed deeds on four tracts of land to their children. More than four years later, the decedent took the deeds from his bank box and went to his daughter's home. The children found the deeds in his grip when they discovered him dead the next morning. They recorded the deeds. The administratrix filed an action against the children to recover the land for the estate, arguing that the deeds were never properly delivered and that as a result said land still belonged to the estate of the deceased. The trial court entered a judgment for the children. The administratrix appealed.

Issue:

Under the circumstances, did the deeds effectively transfer ownership of the land to the children? 

Answer:

No.

Conclusion:

The court reversed the judgment and remanded the case for an award of title, possession, and rents to the administratrix because the decedent did not evidence an intention to make the deeds immediately effective. According to the court, a deed would not become effective until it was delivered, and if the grantor did not evidence an intention to part presently and unconditionally with the deed, there was no delivery.