Title Tips - February 2014
STEWART TITLE TIPS - FEBRUARY 2014
DELIVERY - The most important date relative to a deed is not shown in the deed. A deed has a date of execution, a date of acknowledgment and a date of recording, but not a date of delivery. Without delivery, a deed is totally ineffectual. The requirement of delivery of a deed stems from the early legal ceremony of livery of seisen, wherein a landowner delivered a twig or clod of earth to the land buyer as a symbol of the owner's title. Black, in his Dictionary, tells us it was called livery in deed.
If the parties went together on the land and livery in law if the same ceremony was performed in sight of the land. This gesture signified the transfer of the title to the land. Even to this day, the only date that is crucial to a conveyance by deed is the date of delivery. If the instrument is not delivered, it is a legal nullity. A grantor delivers a deed by completely relinquishing control over the document. If the grantee somehow comes into possession of the document, without it having been delivered by the grantor, the title is not transferred.
Once a deed has been delivered, its subsequent destruction, even with the consent of the grantor and the grantee, has no effect on the grantee's title to the land. Neither can the grantee deliver the same deed back tot the grantor. A new deed is necessary to convey the title back to the original landowner, even if the original deed was unrecorded. R.I.G.L. 34-11-1 provides that a deed "if delivered, as between the parties and their heirs, and as against those taking by...gift or devise, or those having notice thereof, shall be valid and binding though not acknowledged and recorded." The date on a deed is presumed to be the earliest possible date of delivery. Palliotta v. Palliotta 68 RI 500 (1943). Likewise, R.I.G.L. 34-11-4 provides that a deed "....delivered by the grantor.... Shall be operative to convey to the grantee all possession, estate, title and interest...of the grantor, absolutely in and to the land conveyed....."
The foregoing principles come into play with so-called corrective deeds. If A conveys Lot 1 to B, by mistake, he cannot rectify the error by delivering a corrective deed to B for Lot 2. B must convey Lot 1 back to A. Likewise, a title already conveyed cannot be diminished by a corrective deed. See R.I. Title Standard 3.3. The grantor who has already delivered a deed (mortgage, assignment) to the grantee (mortgagee, assignee) cannot make a substantial change in the name of the grantee, decrease the size of the premises or the extent of the estate granted, or otherwise derogate from the first grant..." There cannot be a material alteration of the first deed. A material alteration is one that causes the deed to bring about a different legal effect than it did originally. Even if a materially altered deed is re-recorded, it does not change the legal effect on the original deed. In fact, recording does not affect the transfer of title at all. Because we are accustomed to seeing conditional deliveries, where the grantors entrust an attorney to hold their deed until numerous other conditions are satisfied, and because the attorney runs the title down to the minute before he records, the delivery finally occurs at the time of recording. It gives the illusion that recording is causing the transfer of title. In fact, you do not need the land evidence records to transfer title. The deed can be put in the grantee's safe deposit box. However, recording gives it the benefit of constructive notice to the public as well as safe-keeping.
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