## Facts

- William Fischer, Sr. executed and acknowledged a warranty deed conveying Detroit real property to his adult daughter, Bertha Fischer.
- The deed contained a covenant against encumbrances except two existing mortgages ($3,000 and $5,000), which the grantor stated he “agrees to pay when the same become due.”
- The father handed the deed to Bertha as a “nice Christmas present”; she read it and then had her brother keep it in his safe for safekeeping.
- Bertha, using a dollar given to her by a brother, handed that dollar to her father; the transaction was treated as a joke rather than a bargained-for exchange.
- The deed was not recorded until after the father’s death; the father continued to occupy, manage, and collect rents from the property during his lifetime.
- The $3,000 mortgage was later foreclosed for nonpayment and satisfied from part of the conveyed property.
- Bertha filed a claim against the father’s estate seeking damages for breach of the deed clause promising payment of the mortgages.

## Issues

1. Whether the deed operated as a completed gift of the real property through execution and delivery despite delayed recording and the grantor’s continued management and occupancy.
2. Whether the grantor’s promise in the deed to pay existing mortgages was enforceable against his estate when the conveyance was a gift supported only by nominal or “meritorious” consideration.

## Decision

- The Michigan Supreme Court reversed the judgment for Bertha and ordered a new trial.
- The court held that the deed of gift was validly delivered and transferred title to Bertha, subject to the existing mortgages.
- The court held that the promise to pay the mortgages was a purely executory promise unsupported by legal consideration and therefore not enforceable against the estate.

## Legal Principles

- A gift of real property is completed by execution and delivery of a deed; recording is not required to complete delivery between the parties.
- Manual delivery to the grantee, followed by the grantee’s placement of the deed with a third party for safekeeping, can constitute complete delivery.
- A donee of encumbered real property receives only the donor’s interest; title passes subject to existing liens and the rights of secured creditors.
- “Love and affection,” though morally or “meritorious” consideration, is not sufficient consideration to compel performance of a purely executory promise.
- Nominal consideration arranged to make a donative promise appear contractual does not create an enforceable obligation absent a genuine bargained-for exchange.

## Conclusion

The court treated the conveyance as a completed gift delivered to the daughter, so she took the property subject to the mortgages, but it rejected her attempt to recover foreclosure-related damages from the estate because the donor’s promise to pay the mortgages lacked legally sufficient consideration.


Fischer v. Union Tr. Co., 138 Mich. 612, 101 N.W. 852 (1904)