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Deeds and Conveyances
In Band v. Davis, 325 Mass. 18, 88 N.E.2d 652 (1949) the question of the effective delivery of a deed after the grantor's death was explored. In Band the court said:
There is nothing in the petitioner's contention that the death of [the grantor] terminated [the escrowee's] authority to act so that the purported delivery of the deed by him to the respondent after [the grantor's] death was of no effect. The petitioner invokes the familiar rule of law that the death of the principal terminates the authority of the agent to act. * * * That principle has no application here. It is settled that where the grantor deliver an instrument to a third person in escrow with instructions that it is to be delivered to the grantee named therein upon the happening of a certain condition, the death of the grantor does not revoke the authority of the third person to deliver the instrument to the grantee upon the happening of the condition. The second delivery is treated as relating back and taking effect as of the time of the first delivery. Hatch v. Hatch, 9 Mass. 307. Foster v. Mansfield, 3 Met. 412. Daggett v. Simonds, 173 Mass. 340, 347. Stockwell v. Shalit, 204 Mass. 270, 273. Browne v. Fairhall, 213 Mass. 290, 295. See note 52 A.L.R. 1222. Here the conditions on which the instruments were delivered to [the escrowee] were fulfilled and he rightly delivered them to the respondent.
In this regard, in Eno and Hovey, Massachusetts Practice - Real Estate Law with Forms, West Publishing Co., (Third Edition, 1995), §4.51 it is recognized that the general rule is that a deed delivered into escrow will be deemed delivered to the grantee when, as and if such second delivery occurs. However, even in the case of a delivery in escrow, "it will still be construed as a deed from the first delivery as soon as the event happens or the condition is performed, if this construction is necessary to further the lawful intentions of the parties. * * * [I]n cases in which the grantor becomes incapable of making a deed, the deed is considered as taking effect from the first delivery . . . ."
There is a presumption of delivery once the deed is recorded. See G.L.c. 183, §5, which provides:
The record of a deed, lease, power of attorney or other instrument, duly acknowledged or proved as provided in this chapter, and purporting to affect the title to land, shall be conclusive evidence of the delivery of such instrument, in favor of purchasers for value without notice claiming thereunder.
Also, REBA's Title Standard 46 ("Delayed Recording") cites the statute mentioned above and adopts the statutory presumption:
Title derived through an instrument recorded an appreciable period of time after the date of execution of the instrument, whether or not the grantor is alive and legally competent at the time of the recording, is not on that account defective.