Chapter 19 - § 19.6 • DELIVERY AND ACCEPTANCE
| Jurisdiction | Colorado |
§ 19.6.1—In General
Delivery is essential to the complete execution of a deed so as to pass title.291 A deed is effective only on the date of delivery,292 even though dated a prior date.293 A deed, not based upon consideration, may be revoked before delivery.294
Intention to pass a present [or future] interest in the property is an essential element of delivery.295 (Colorado cases commonly refer to an intention to pass "a present interest in the property." The intention referred to is perhaps more accurately expressed in Barnes v. Spangler296 as an intent "to . . . make a present grant of title." It is the grant that must be present, not necessarily the interest.) The intention of the grantor, if it can be ascertained, governs.297 Intention is to be gathered from the conduct of the parties and all the surrounding circumstances.298 It is not necessary that the grantee be aware of the deed.299
Delivery is not a matter of intent alone, but requires proof that the grantor parted with possession and control or any power over the deed, for the benefit of grantee, and that he or she intended to do so presently and unconditionally.300 Without such intent, the grantor's physical delivery of a deed is not binding,301 even if the deed is subsequently recorded.302 A correction deed, although naming the original grantee, may be delivered to a remote grantee.303
A distinction should be drawn between the case where the grantor transmits the deed to another with instructions that it be recorded only after his or her death, and the case where the grantor transmits the deed to another with instructions that it be delivered only after his or her death. In the first case, there may be a delivery if all other elements of a delivery are present.304 In the second case, there is no delivery.305 If the grantor intends a deed to be operative only on his or her death, the grantor may have the deed set aside as against the grantee,306 or his or her heirs may do so.307 But where a deed is placed in escrow pursuant to a contract, such delivery in escrow is irrevocable, even though future payments by the grantee are forgiven upon the death of the grantor.308
Title by patent from the United States is title by record, and though it is usual to deliver a patent to the claimant as in the case of deeds, delivery of a patent is not essential to its validity.309
§ 19.6.2—Presumptions as to Delivery
Where delivery of a deed is in issue, the burden of proof is on the party asserting delivery.310 Although filing a deed for record does not, of itself, constitute a delivery,311 if the instrument is acknowledged as provided in C.R.S. § 38-35-101 and has been recorded in the office of the clerk and recorder, it is prima facie evidence312 of due delivery of the instrument,313 irrespective of the length of time that may have elapsed between the date of the instrument and the date when the instrument is recorded.314 Upon recording, the presumption relates back to the date of execution of the deed,315 but unauthorized recording of a deed does not constitute delivery.316 (It was formerly held that there is no presumption of delivery where it is not recorded until long after its date.317 ) The presumption holds even if the deed is recorded after the death of the grantor.318 The presumption is rebuttable, and it may, upon proper proof, be shown that delivery did not occur or occurred at some other point in time.319 Once it is shown that a deed has been properly acknowledged and recorded, the burden shifts to the opponent to demonstrate nondelivery,320 and the prima facie evidence of delivery may be rebutted by showing a lack of intent to transfer a present [or future]321 interest in the property.322 The fact that the grantor retains complete dominion and control over the property tends to negate delivery.323 Possession of a duly acknowledged and recorded deed is presumptive evidence of its delivery.324
§ 19.6.3—Conditional Delivery
To Grantee
There can be no conditional delivery of a deed, or delivery in escrow, to the grantee.325 A deed, having been placed in the possession and manual control of the grantee as the deed of the grantor, takes effect at once and vests the legal title in the grantee.326
To Third Party
Transmission of a deed to one acting as agent of the grantor is not a delivery.327
A delivery of a deed to a third party acting as an escrow agent does not give the grantee any ownership of the property,328 particularly where the grantor reserves the right to withdraw the deed.329 A deed in escrow, conditional upon satisfaction or completion of some specified event, cannot be delivered or become operative until the condition has been performed.330 Only upon fulfillment of the condition will the grantee be entitled to receive the deed from the escrow agent and the grantor entitled to receive the purchase price from the escrow agent.331 If the grantee named in the deed is not a party to the agreement between the grantor and the agent, there is no escrow and the agent is merely the agent of the grantor.332
A deed delivered by the depositary in violation of the conditions of the escrow has no force or effect as a deed.333 A court of equity may either direct its cancellation or may treat the vendee as a trustee and decree a conveyance to the party entitled.
§ 19.6.4—Acceptance
It is essential to the validity of every deed or conveyance that it be accepted by the grantee.334 Whether the deed is accepted by the grantee as a present conveyance is a question of intent. Intention may be manifested by some act or declaration, or it may be presumed from circumstances.335 Recording is sufficient to show delivery and acceptance in the absence of an express disavowal by the grantee.336 Upon acceptance of a deed containing a clause whereby the grantee agrees to pay a mortgage or other encumbrance, the grantee becomes primarily liable to the encumbrancer; acceptance will not be lightly presumed where the grant imposes a burden or obligation upon the grantee.337 An attorney, acting merely as counselor for the grantee, cannot accept a deed.338 It has been said that, where the deed is manifestly for the benefit of the grantee, its acceptance will be presumed.339 But this presumption obtains only where the facts are unknown. Where the facts and the attendant circumstances are shown, the question must be determined from them; there is no room for presumption.340 Where a deed is made and delivered to a stranger for the use of the grantee, upon its acceptance by the latter, as between the grantor and the grantee, the acceptance will relate back to the time of the first delivery. But the relation is a legal fiction, and there is no actual transfer of title until the acceptance. It necessarily follows that if between the date of the deed and its acceptance rights of third parties attach to the property, those rights will be superior to and prevail over the title of the subsequently assenting grantee. The latter takes the title subject to such liens as have been created, or conveyances as have been executed, before it becomes actually vested in him or her.341
Where the execution and delivery of the deed is the conclusion of a transaction conducted by the immediate parties, or where the deed is executed in performance of the grantor's contract with the grantee to convey the land to the latter, the deed is the consummation of the contract, and the contract contains the assent of the grantee to its execution, so that...
To continue reading
Request your trial