Thank you, Mr. Hanson. Very helpful, indeed (pardon the pun). 

I have agreed to provide the quit claim deed because it is not difficult to obtain, even though I don't think it's needed.

Thanks!

-----Original Message-----
From: realestate-owner@iabar.org [mailto:realestate-owner@iabar.org] On Behalf Of realestate@iabar.org
Sent: Wednesday, April 18, 2018 9:47 AM
To: realestate@iabar.org
Subject: [ISBA RealEstate] "Stray" deed question



Saw no response to Mr. Huston's inquiry. So shall attempt to provide one.

Your basic question boils to this:  At what point in time did A *actually deliver* to B A's initial warranty deed (WD) that purported to be dated July 1993?

Some follow-up questions immediately jump out at me: 
1) was the "July 199**4**" recording date correct--or an abstracter's scrivener's error?  
2) What date shows as the deed's date of acknowledgement? 
3) Can A be contacted to reveal the date on which he *delivered* the deed to B?

The examining attorney is not wrong to question the sequence of the deeds, especially given the year's delay between WD date and its recording. 

From your perspective, obtaining a clearance quit claim deed (QCD) from B to D seems to be the "smart" (read: cautious) move.  
A QCD from B necessarily negates on record any latent question about A's intentions and the *timing of A's delivery* of the A-to-B warranty deed.
If this can be done with reasonable ease then do so. 

Alternatively, you might find A and obtain from him an affidavit explanatory of title (see Code section 558.8).
A should recite that he delivered his WD to B on such-and-such a date PRIOR TO May 3, 1994.
Delivery of the deed effectively passes title, regardless of the belated recording.
Normally that delivery is presumed to occur--and effectively transfer title--on the deed's date of execution, not its recording (which merely announces to the world the fact of transfer).

If neither A nor B remains available to clarify, then D's transferee ought to be able to rely upon strong legal presumptions about A's intention for and delivery of that warranty deed.
Proof to overturn them would be sorely lacking.  

Furthermore, how could A, B or anyone claiming under them now or ever in future assert any legal claim to the real estate?
Seems to me that Code section 614.17A would shut them out.  D possesses the property (I presume) and has since 2004.


614.17A  Claims to real estate after 1992.
1.  After July 1, 1992, an action shall not be maintained in a court, either at law or in equity, in order to recover or establish an interest in or claim to real estate if all the following conditions are satisfied:
a.  The action is based upon a claim arising more than ten years earlier or existing for more than ten years.
b.  The action is against the holder of the record title to the real estate *in possession*.
c.  The holder of the record title to the real estate in possession and the holder's immediate or remote grantors are shown by the record to have held chain of title to the real estate for more than ten years.


Orud v. Groth, 652 N.W.2d 447 (Iowa 2002) (Orud I):
"To effectuate transfer of title under a deed, there must be delivery, actual or symbolical, accompanied with the intention of the grantor to transfer title without any reservation of control. Lathrop v. Knoop, 202 Iowa 621, 623, 210 N.W. 764, 765–66 (1926); Tutt v. Smith, 201 Iowa 107, 110–11, 204 N.W. 294, 295–96 (1925). The intent of the grantor is controlling in the matter of delivery and is to be determined by the grantor's acts or words or both. Klosterboer v. Engelkes, 255 Iowa 1076, 1080, 125 N.W.2d 115, 117 (1963). For valid delivery the grantor must intend the deed to be presently effective as a transfer without any reservation of control. Id. A duly executed and recorded deed ordinarily raises a rebuttable presumption of delivery with the present intent of passing immediate title and the right of possession. Avery v. Lillie, 260 Iowa 10, 15, 148 N.W.2d 474, 477 (1967)."

Jeppesen v. Jeppesen, 249 Iowa 702, 88 N.W.2d 633 (1958):
"Few questions have been the subject of more litigation than the validity of delivery of deeds. Delivery is, of course, essential to the effectiveness of a deed. Our own and other precedents agree the intent of the grantor is the controlling element in the matter of delivery. Or, as many of them say, the question of delivery is largely one of intent of the grantor, to be determined by his acts or words or both. Graham v. Johnston, 243 Iowa 112, 115, 49 N.W.2d 540, 542; Hilliard v. Hilliard, 240 Iowa 1394, 1398–1399, 39 N.W.2d 624, 626, and citations; Gilmer v. Neuenswander, 238 Iowa 502, 507, 28 N.W.2d 43, 46; Huxley v. Liess, 226 Iowa 819, 823, 285 N.W. 216; Lathrop v. Knoop, 202 Iowa 621, 623, 210 N.W. 764, and *708 citations; Annotation, 129 A.L.R. 11; 30 Iowa Law Review 108–112; 26 C.J.S. Deeds § 41.
"While manual transfer of the deed from grantor to grantee is prima facie evidence of delivery it is not conclusive. For a valid delivery the grantor must intend the deed to be presently effective as a transfer of title without any reservation of control thereover. See Gilmer v. Neuenswander, supra, 238 Iowa 502, 507, 28 N.W.2d 43, 46; Dyson v. Dyson, 237 Iowa 1285, 1291, 25 N.W.2d 259, 262; Miller v. Armstrong, 234 Iowa 1166, 1169, 15 N.W.2d 265, 269, and citations; **637 Lathrop v. Knoop, supra, 202 Iowa 621, 623, 210 N.W. 764, and citations; Dolph v. Wortman, 191 Iowa 1364, 1373–1374, 183 N.W. 814; Kimbro v. Kimbro, 199 Cal. 344, 249 P. 180, 183; French v. Dillon, 120 W.Va. 268, 197 S.E. 725; 26 C.J.S. Deeds § 42c, pages 687–688; 16 Am.Jur., Deeds, section 123 (‘Nor is there a delivery * * * where the deed is given to the grantee with the intention that it shall become operative only on the death * * * of the grantor * * *.’).
"The fact a deed has been duly executed and recorded ordinarily raises a rebuttable presumption of delivery. This is evidently based on the notion that, as only instruments duly delivered are recordable, such delivery should be inferred, rather than the surreptitious act of handing a deed never delivered to the recorder. Stiles v. Breed, 151 Iowa 86, 91, 130 N.W. 376, 378, Ladd, J.; Byers v. Byers, 242 Iowa 391, 411, 46 N.W.2d 800, 811."

Dyson v. Dyson, 237 Iowa 1285, 25 N.W.2d 259 (1946):
"This court has consistently held that where a deed has been signed, acknowledged and recorded, it is presumed to have been properly delivered and one who attacks the deed assumes the burden to overcome the presumption of delivery. To do this, clear and satisfactory proof is required. Hodgson v. Dorsey, 230 Iowa 730, 298 N.W. 895, 137 A.L.R. 456; Crawford v. Couch, 234 Iowa 1246, 15 N.W.2d 633; Jones v. Betz, 203 Iowa 767, 210 N.W. 609, 213 N.W. 282; 26 C.J.S., Deeds, § 183, at p. 591. 
...
"Delivery is essentially a question of intention upon the part of the grantor. It may be effected by acts without words, or by words without acts, or by both words and acts. Arndt v. Lapel, 214 Iowa 594, 243 N.W. 605. "

Conway v. Rock, 139 Iowa 162, 117 N.W. 273 (1908):
"It is also to be presumed that such delivery was on the date of the deed. Nichols v. Sadler, 99 Iowa, 429, 68 N. W. 709; Parlin, Orensdorff & Martin v. Daniels, 111 Iowa, 640, 82 N. W. 1015." 
Conway presumption recognized in 
Orud v. Groth, 708 N.W.2d 72 (Iowa 2006)(Orud II), wherein the Court said:
"Nancy also relies on the presumption that delivery occurred on the date the deed was executed, which in this case was May 25. 2 See Conway v. Rock, 139 Iowa 162, 164, 117 N.W. 273, 274 (1908) (stating delivery is presumed to have occurred on date deed was signed). Although this presumption supports Nancy's argument, it is not conclusive and may be overcome by clear, convincing and satisfactory evidence to the contrary. See Jones v. Betz, 203 Iowa 767, 768, 210 N.W. 609, 609 (1926).
...
"FN2 ... The disputed issue is *when* it [the deed in question] was delivered." (Emphasis by the court). 


Flick, Abstract And Title Practice section 164, p.132 (West, 1951):
S164. Presumptions relating to delivery
  Under ordinary circumstances the title attorney is safe in proceeding on the assumption that the date of execution of a deed is also the date on which title passed to the grantee. There are, however, situations where there is such a variation between the date of the deed and the time of recording that the attorney will of necessity question the fact of delivery of the deed, and any great lapse of time between the date of the deed and the date of recording ****without any explanatory circumstances**** is irregular and indicates that the deed may not have been delivered during the lifetime of the grantor. ...  (emphasis supplied)  

1 Patton & Palomar on Land Titles 3d section 70, pp. 235-36 (2003):
S70.  Conveyance by Vendor Before Acquiring Title as Being Outside the Chain of Title
  The rule in the majority of states has been that a purchaser need not search the records for deeds or mortgages given my any owner in the chain of title before the date of the conveyance by which said owner obtained title. A few state have, however, expanded the standard chain of title to include such "early-recorded" instruments.
  It also is generally the rule that if a grantor has given a conveyance with covenants of title or warranty before acquiring title, title will inure, as against her [sic] and her[sic] heirs, to her [sic] covenantee. ...Nevertheless, this is not true under the majority rule just stated when an innocent purchaser from her [sic] intervenes. Although a grantor, upon acquiring title, will be estopped from asserting that her [sic] prior covenantee does not have title, a subsequent purchaser from the same grantor may show lack of constructive notice of the covenantee and prevail over and bar the title of the covenantee.  One whose title depends on the doctrine of inurement or estoppel, therefore, should re-record his conveyance or otherwise place evidence of his title of record after the date of the conveyance to his grantor.

Hope these points assist you Mr. Huston.

David Hanson
Hofmeyer & Hanson PC
Fayette, Iowa


----- Original Message -----
From: "Joel Huston" <realestate@iabar.org>
To: realestate@iabar.org
Sent: Tuesday, April 17, 2018 11:58:16 AM
Subject: [ISBA RealEstate]  "Stray" deed question

Dear list members:

I have the following scenario that I'd like your opinion on.

Abstract reveals the following:
Root of Title is in Party A as of 1969.
Following is a Quit Claim Deed from Party B to Party C, dated May 3, 1994, recorded May 9, 1994.
Warranty Deed from Party A to Party B, dated July 1993, and recorded June 1994.
Warranty Deed from Party C to Party D, dated April 2004, recorded June 2004.

Examining attorney requires a quit claim deed from Party B to Party D in order to clear title because the deed from B to C was recorded before the deed from A to B and is therefore a stray/conflicting interest, even though the deed from A to B is dated before the deed from B to C. I maintain that a quit claim deed is unnecessary because the dates on which the deeds were recorded do not matter if the chain of title works out through the dates on which the deeds were signed. Party D, who is the Seller, has marketable title and nothing more is needed.

Thoughts?


Joel Huston

Senior Legal Counsel
Direct: 515-457-6222
6400 Westown Parkway | West Des Moines, Iowa 50266-9857
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