Fike v. Harshbarger

Powers, J., delivered the opinion of the Court. Delivery is the last but an indispensable step by a grantor ⁶⁶² to give validity and operative effect to a deed for conveyance of real estate. Execution and acknowledgment are equally indispensable but, without delivery, accomplish nothing. To accomplish delivery a grantor need not hand the completed instrument to the grantee; delivery to the grantee is constructively accomplished by turning a deed over to the clerk of a court for recording.

Gianakos, Executor v. Magiros, 234 Md. 14, 27 , 197 A. 2d 897 (1964). This constitutes delivery to the grantee even though the grantee may be unaware of the execution, delivery, or recording of the deed. Delivery may be accomplished by leaving the deed in the hands of another as agent for the grantee with instructions that it-be recorded or delivered to the grantee. The instructions may be unconditional or they may be qualified so as to take effect upon the happening or the failure to happen of some later event, or after the passage of a specified time.

But constructive delivery, whether or not subject to a condition, must effectively place the deed beyond the power of recall by the grantor except for failure of the conditioned event. In Gianakos, Executor v. Magiros, supra, the Court of Appeals said, at 27: “It is recognized that there has been a consummated delivery when the instrument has passed from the grantor, without right of recall, to the grantee or to some person for his use.” In Meise v. Tayman, 222 Md. 426 , 160 A. 2d 916 (1960), Tayman had instructed an attorney to prepare a deed by which he conveyed his property to the attorney, as trustee, and a second deed by which the trustee conveyed to Tayman and another jointly, and upon the death of the survivor, to a remainderman. The deeds were executed and acknowledged, in proper sequence, and left with the attorney with instructions to record them. When the attorney presented the deeds for recording they were not accepted, because the taxes were not paid.

The deeds were not recorded until after Tayman’s death, some years later. In reversing a decree setting aside the deeds the Court of Appeals said, at 430: ⁶⁶³ “We cannot agree with the chancellor that there was no valid delivery. The grantor, Tayman, signed, sealed and acknowledged a deed to ‘Hillman, Trustee’, conveying the property to him in fee simple, in trust to reconvey to the parties mentioned. Tayman handed the executed deed to Hillman.

Hillman then signed and acknowledged the second deed, as he was obligated to do. Even though the deeds had not then been recorded, it would seem that the unconditional delivery to a third person for the grantees would pass title as between the parties, and that the grantor retained no power to alter or reclaim the deed.” Frank Thomas, a resident of Garrett County, was a widower when, on 4 June 1963, he executed and acknowledged a deed conveying eight acres of land, improved by the house in which he resided, to his daughter, Wilma Belle Fike. Mr. Thomas retained possession of the deed until it came into the possession of Helen Harshbarger, another daughter, about two years before his death on 23 May 1972. He died intestate leaving as his only heirs-at-law, two sons, two daughters, two sons of a deceased daughter, and two sons of a deceased son.

Letters of administration on the estate of Frank Thomas were issued by the Orphans’ Court for Garrett County to Helen Harshbarger, and Mrs. Warren Thomas, a daughter-in-law. Within a day or two after Mr. Thomas’s death, Mrs. Harshbarger told other members of the family that she had in her possession a deed by which their father conveyed his home property to Mrs. Fike, as well as a $1,000.00 life insurance policy in which Mrs. Fike was named as beneficiary. On 5 June 1972, possession of the deed was obtained by members of Mrs. Fike’s