Rosengrant v. Rosengrant , 629 P.2d 800 ( 1981 )

BRIGHTMIRE, Judge,

concurring specially.

In a dispute of this kind dealing with the issue of whether an unrecorded deed placed in the custody of a third party is a valid conveyance to the named grantee at that time or is deposited for some other reason, such as in trust or for a testamentary purpose, the fact finder often has a particularly tough job trying to determine what the true facts are.

The law, on the other hand, is relatively clear. A valid in praesenti conveyance requires two things: (1) actual or constructive delivery of the deed to the grantee or to a third party; and (2) an intention by the grantor to divest himself of the conveyed interest. Here the trial judge found there was no delivery despite the testimony of Jay Rosengrant to the contrary that one of the grantors handed the deed to him at the suggestion of banker J. E. Vanlandengham.

So the question is, was the trial court bound to find the fact to be as Rosengrant stated? In my opinion he was not for several reasons. Of the four persons present at the bank meeting in question only Rosen-grant survives which, when coupled with the self-serving nature of the nephew’s statements, served to cast a suspicious cloud over his testimony. And this, when considered along with other circumstances detailed in the majority opinion, would have justified the fact finder in disbelieving it. I personally have trouble with the delivery testimony in spite of the apparent “corroboration” of the lawyer, Jeff Diamond. The only reason I can see for Vanlandengham suggesting such a physical delivery would be to assure the accomplishment of a valid conveyance of the property at that time. But if the grantors intended that then why did • they simply give it to the named grantee and tell him to record it? Why did they go through the delivery motion in the presence of Vanlandengham and then give the deed to the banker? Why did the banker write on the envelope containing the deed that it was to be given to either the grantee “or” a grantor? The fact that the grantors continued to occupy the land, paid taxes on it, offered to sell it once and otherwise treated it as their own justifies an inference that they did not make an actual delivery of the deed to the named grantee. Or, if they did, they directed that it be left in the custody of the banker with the intent of reserving a de facto life estate or of retaining a power of revocation by instructing the banker to return it to them if they requested it during their lifetimes or to give it to the named grantee upon their deaths. In either case, the deed failed as a valid conveyance.

I therefore join in affirming the trial court’s judgment.