4.24 Delivery

4.24.1

In General

Delivery is the legal act of transferring ownership. Documents such as deeds and mortgages must be delivered and accepted before becoming valid. Legal delivery is not confined to the act of transferring manually the document; rather, it refers to the intention of the grantor. The grantor must intend that the deed be presently operative and effective to transfer title to the grantee, and intend that the grantee become the legal owner.

Actual or Constructive

Delivery may be actual or constructive. An actual delivery occurs where actual possession is given to the grantee, while constructive delivery occurs where the law implies a delivery by reason of the acts or conduct of the parties.

Absolute or Conditional

A delivery may be absolute or conditional. An absolute delivery, as distinguished from a conditional delivery or a delivery in escrow, is one that is complete on the actual transfer of the deed from the possession of the grantor. Under a conditional delivery, possession is transferred to a third person as agent for the grantor and is not given up to the grantee until a specified occurrence takes place.

Time of Delivery

To be valid, a deed must be delivered during the lifetime of the grantor; otherwise, it is void. A grantor cannot pass title after the grantor's death by executing a deed, retaining it, and intending it to take effect after the grantor's demise. A deed cannot operate as a will.

Delivery to Third Persons

The delivery of a deed usually is accomplished by direct delivery to the grantee; however, it can be effected by delivery to a third party for delivery to the grantee at some later date, even after the death of the grantor, if by the delivery to the third party, the grantor lost all dominion and control over the deed and retained no right to recall it. The recording of a deed by, or at the direction of, or with the approval of the grantor constitutes delivery.

Prima Facie Evidence of Delivery

The most cogent act evidencing, but not creating, delivery is recordation. The law presumes that recorded documents have been delivered. However, the contrary may always be shown.

Most states now have statutes making the public records of recorded deeds or certified copies of the records prima facie evidence of their due execution and delivery and making them admissible in evidence without other authentication.

4.24.2

Acceptance

Effective delivery of a deed requires the correlative act of acceptance by the grantee. Even if done gratuitously, property cannot be thrust upon a person against that person's will. Acceptance is presumed when the deed is beneficial to the grantee. This presumption has been applied even though the grantee had no knowledge of the execution of the instrument. When the grantee is proved to have possession of the deed, acceptance is inferred.

By the acceptance of a deed, a grantee becomes bound by the conditions contained therein even though the grantee has not signed the instrument. The delivery and acceptance of a deed takes the covenants contained in the instrument out of the operation of the Statute of Frauds.