To effect a conveyance transferring title, a deed must be both executed and delivered. At the time of the delivery the grantor's intent is of primary and controlling importance. Further, the controlling issue in determining if delivery was effective is whether the grantor manifested an intention to presently divest himself of title.
The transferor executed a deed to his house to the transferee, his daughter, and placed the deed in a safety deposit box. The transferor gave the transferee access to the deed through a signature card. Thereafter, the transferor was injured, and the transferee returned home to care for the transferor and retrieved some insurance policies from the safety deposit box. The transferor later discovered the deed, which had been recorded, missing from the safety deposit box. The transferor filed an action seeking to have the deed declared invalid, and the transferee counterclaimed, seeking a declaration that the deed was a valid gift of property. The trial court found in favor of the transferor and invalidated the deed. The transferee sought review.
Was there constructive delivery to effectively transfer ownership?
The court held that accepting the evidence of the transferor as true,and rejecting conflicting evidence put on by the transferee, there was sufficient evidence to rebut the presumption of delivery of the deed. It was noted that there was testimony that the transferor did not intend a present transfer of ownership of the property. The court noted that the failure of intent also defeated the transferee's claim of constructive delivery.