The delivery of a deed must be so effectual as to deprive the grantor of the right to revoke it. For so long as he reserves to himself the locus penitentiae, there is no delivery, no present intention to divest himself of the title to the property. The grantor need not expressly reserve to himself this right to repent, but if his act upon which a delivery is predicated does not place the deed beyond his control, as a matter of law, then his right of revocation is not gone. The law does not presume, when a deed is handed to a third person, that it has been with the intention to pass title to the grantee. In order to make such an act a delivery to the grantee, the intention of the grantor must be expressed at the time in an unmistakable manner.
The parents of the plaintiff daughters and defendant son were married. The father executed a deed conveying an undivided one-half interest in several acres of property to the mother, reserving an undivided one-half-interest for life in the father, with the remainder in fee simple to the defendant son. After their parent's death, the plaintiff daughters filed suit, seeking to set aside the deed on grounds of undue influence, mental incapacity of the father, and "no legal delivery" of the deed. The trial court found in favor of the defendant son and held that the deed was valid. Plaintiffs appealed and the court affirmed.
Is there valid delivery of a deed where the deed is held by a third party depositary 'for safekeeping,' subject to be returned to the grantors upon request, to be transferred to the grantee upon the death of the grantors?
The court held that the trial court acted properly in holding that the father had intended to deliver the deed to his son when he deposited it with the bank and instructed its personnel to deliver it to him upon the event of his own death. Central to the court's holding was the undisputed fact that the father gave express, unequivocal instructions to the bank for delivery of the deed to the son, the named grantee, upon a certain future event, the father's death. The court held that the inference of completed delivery, fully executed, was amply sustainable.