Rosengrant v. Rosengrant

Court of Appeals of Oklahoma, Division No. 2 · 1981 · Property

PropertyDeedsDeliverylegal deliverydeed deliverygrantor intentright of retrievalsymbolic delivery

Facts

Harold and Mildred Rosengrant signed a deed to their farm in favor of their nephew Jay at a bank, told him they were going to give him the place, and had Harold hand the deed to Jay, who then handed it back to the banker for storage. Jay testified they told him to leave the deed at the bank and, when "something happened" to them, retrieve it, record it, and it would be his. The deed was kept in an envelope marked "J.W. Rosengrant- or Harold H. Rosengrant," and bank custom showed Harold could retrieve it at any time before his death. After the deed was placed at the bank, Harold continued to use, farm, control, and pay taxes on the property and claimed it as his homestead until his death, after which Jay retrieved and recorded the deed.

Issue

Whether the deed was legally delivered when the grantors handed it to the grantee only momentarily, had it returned to the banker for safekeeping, retained the ability to retrieve it, and intended it to become effective only after both grantors' deaths and recordation. Put differently, did the trial court err in finding no valid legal delivery?

Rule

In attempted transfers by deed, the grantor's intent at the time of delivery is the primary and controlling consideration. If the grantor reserves a right of retrieval, conditions the deed's operation on the grantor's death and later recordation, and continues to treat the property as his own, the transaction is only a symbolic or pro forma delivery and not a legal delivery; legal delivery must carry the force and consequence of absolute, outright ownership at the time of delivery or it is no delivery at all.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Tulsa, Owen Mercer signed a warranty deed conveying his house to his niece, Lena Ortiz. He handed the deed to Lena at his credit union, but immediately instructed her to place it with the branch manager, who labeled the envelope "Lena Ortiz or Owen Mercer" and said either person could pick it up; Owen told Lena to record it only after he died, and Owen continued living in the house and paying all property taxes.

If Owen's heirs challenge the deed after his death, is the deed most likely validly delivered?

Explanation. Legal delivery turns on the grantor's intent at the time of the alleged delivery. A brief physical handoff does not suffice where the grantor retains control inconsistent with a present transfer, such as a right of retrieval, and intends the deed to operate only after death and later recordation. Owen's continued possession and tax payments further show no present transfer of absolute ownership. (Derived from Rosengrant v. Rosengrant (n.d.).)