Fike v. Harshbarger

Smith, J., delivered the opinion of the Court. We shall here hold invalid for lack of proof of delivery a deed executed by a father to one daughter, placed by him in the hands of another daughter sometime after execution and a number of years before the father’s death, and recorded by the grantee after the death of her father. The Court of Special Appeals considered this matter in Fike v. ⁵⁸⁸ Harshbarger, 20 Md. App. 661 , 317 A. 2d 859 (1974), and reached a conclusion similar to that reached by us. We granted the writ of certiorari in order that we might again consider what constitutes a valid delivery of a properly executed deed where the grantor dies before the deed is placed in the hands of the grantee and recorded in the light of the contention of the petitioners that under Code (1957, 1973 Repl.

Vol.) Art. 21, § 3-201, now Code (1974) § 3-201 of the Real Property Article, the effective date of a deed is its date of delivery, “presumed to be the date of the last acknowledgment, if any, or the date stated on the deed, whichever is later” and “that the presumption in favor of delivery, as set forth in the statute, means what it says and that the grantee of a deceased grantor does not have to rebut a presumption against delivery.” Frank Thomas, a widower, owned eight acres of land in Garrett County upon which his home was located. On June 4, 1963, he executed a deed,, prepared by his attorney, conveying this land in fee simple to Wilma Belle Fike, his eldest daughter and one of the petitioners here. She was said to have been a natural object of his bounty since, after the death of her mother in 1931, she remained at home for 12 years to assist in the rearing of the remainder of the children. Helen Harshbarger, one of the respondents here, aided her father in some of his business affairs by handling bank deposits, etc. She said that she knew of the existence of the deed “for two years or about so” prior to its delivery to her, the exact date of which does not appear.

No testimony was presented relative to any conversation between Mr. Thomas and Mrs. Harshbarger at the time he turned the deed over to her nor as to the conditions under which she was to hold the deed. No attempt appears to have been made by the discovery process to question Mrs. Harshbarger under the exception in the “dead man’s statute,” now Code (1974) § 9-116 of the Courts and Judicial Proceedings Article, permitting evidence from a person otherwise forbidden from testifying if “called to testify by the opposite party.” Mr. Thomas died on May 23, 1972. The exact circumstances under which the deed passed into the possession of the ⁵⁸⁹ grantee, circumstances concerning which there is some dispute and an implication of unpleasantness, are not important to our decision. However, the deed was recorded in the office of the Clerk of the Circuit Court for Garrett County on June 5, 1972.

On September 11, 1972, the personal representatives of the estate of Mr. Thomas and all of the heirs at law other than the grantee brought suit to have the deed “declared to be void and . . . vacated and annulled.” The chancellor (Hamill, J.) concluded his opinion by stating: “The sole issue in this case is whether or not there was a proper and legal delivery of the deed from Frank Thomas to Wilma Belle Fike. I am of the opinion that since the deed was delivered to Mrs. Harshbarger, a daughter of the grantor, without any evidence whatsoever to indicate that Mr. Thomas surrendered control over same during his lifetime, it was not a valid delivery of the deed under the laws of the State of Maryland. (Renehan et al. v. McAvoy, 116 Maryland 356 , 81 Atlantic 586.) One hundred years ago our predecessors, through Judge Robinson, stated in Duer v. James, 42 Md. 492 (1875), citing the opinion of the Supreme Court of the United States in Younge v. Guilbeau, 70 U. S. (3 Wall.) 636 , 18 L. Ed. 262 (1866), that to constitute delivery of a deed the