## Facts

- Dr. Henry F. Capozzella and his first wife placed legal title to a Fairfax County residence and 51 acres in two attorneys as trustees under a separation-related conveyance, with authority to reconvey upon Henry’s directions after a payment condition was satisfied.
- After Henry later married Harriet A. Capozzella, he met with attorney Lytton H. Gibson and stated he wanted the trustees removed from title and his wife added.
- Gibson advised that the conveyance should be from the trustees to Henry and Harriet as tenants by the entirety; Henry agreed.
- Gibson coordinated the transaction with the trustees, who executed a deed conveying the property to Henry and Harriet as tenants by the entirety and delivered the executed deed to Gibson to hold.
- Henry assisted the process (including supplying information through Harriet), paid Gibson’s fees, and did not object after being told the deed had been executed and was in Gibson’s possession.
- Before the deed was recorded, Henry and Harriet separated; Gibson retained the deed due to the dispute.
- Harriet sued Henry and Gibson seeking a mandatory injunction compelling delivery of the deed for recordation; the trial court ordered Gibson to deliver it for recording, and Henry appealed.

## Issues

1. Whether the deed was validly delivered, and title passed to Henry and Harriet as tenants by the entirety, when the executed deed remained with an attorney stakeholder and was unrecorded when the spouses separated.
2. Whether the trustees had authority to execute and deliver the deed based on oral directions communicated through Henry’s attorney, without written instructions.

## Decision

- The Supreme Court of Virginia affirmed the decree ordering delivery for recordation.
- The court held the deed was validly delivered and title vested in Henry and Harriet as tenants by the entirety despite lack of physical delivery to the grantees and lack of recordation at the time of separation.
- The court held the trustees acted within their authority; written instructions were not required where the governing instrument did not impose that condition and Henry’s attorney acted as his agent in conveying directions.

## Legal Principles

- A deed passes title upon delivery, but physical manual delivery to the grantee is not essential, and recordation is not required to pass title.
- Delivery turns primarily on the grantor’s intent to make the deed presently operative, which may be shown by surrounding circumstances and the grantor’s conduct.
- In spousal or family conveyances, strict commercial-formalities of delivery are relaxed.
- A principal may effect delivery through an agent; where trustees are authorized to reconvey and execute a deed upon the principal’s directions, delivery to the principal’s attorney as agent/stakeholder can complete delivery and vest title.

## Conclusion

The court concluded that Henry’s demonstrated intent to effect the conveyance, together with the trustees’ authorized execution and delivery of the deed to his attorney, completed delivery and vested title in Henry and Harriet as tenants by the entirety, unaffected by the later separation or the deed’s pre-recording custody with counsel.


Capozzella v. Capozzella, 213 Va. 820, 196 S.E.2d 67 (Va. 1973)