## Facts

- On March 19, 1927, Tom Gilbert and his wife executed and acknowledged two deeds conveying several tracts of land to Tom’s children.
- One deed conveyed two Briscoe County tracts to Tom’s daughter, Mrs. Conde Scroggins, and his son, B. C. Gilbert.
- The other deed conveyed two tracts (one in Hill County and one in Freestone County) to Tom’s daughter, Mrs. Cecil McSpadden.
- Each deed recited consideration of “$1 and love and affection.”
- Tom did not record the deeds and kept them in his possession, storing them in his bank box in Quitaque, Texas.
- For more than four years after execution, Tom continued to exercise dominion over the land.
- On December 19, 1931, Tom removed the deeds from the bank box and traveled to Mrs. Scroggins’s home in Borger, stating that his purpose was to deliver the deeds to her so they could be recorded.
- Tom arrived late at night on December 20, 1931, went to bed, and died in his sleep.
- The next morning, Tom’s children found him dead and found the deeds in his grip (travel bag) in his room.
- The children took the deeds, recorded them, and claimed title to the tracts under the conveyances.
- Mrs. Georgia Oakes Gilbert, as administratrix of Tom’s estate, sued the children contending the deeds were never properly delivered and that the land (and related rents) belonged to the estate for payment of estate debts.
- The trial court ruled for the children, and the administratrix appealed.

## Issues

1. Whether Tom Gilbert’s execution of the deeds, coupled with his later stated intent to deliver them for recording, constituted a legally effective delivery when he retained possession and control and died with the deeds still in his luggage.
2. Whether the children’s post-death possession and recording of the deeds could make the conveyances effective without a completed delivery during Tom’s lifetime.

## Decision

- The Court of Civil Appeals of Texas (Waco) reversed the trial court’s judgment and remanded with instructions.
- The court held there was no effective delivery of the deeds during Tom Gilbert’s lifetime.
- Because the deeds were not delivered, they never became operative, and title did not pass to the children under those instruments.

## Legal Principles

- A deed does not become effective until it is delivered.
- Delivery requires proof, from the surrounding facts and circumstances, that the grantor intended the deed to become presently operative and effective.
- Manual transfer from grantor to grantee is not required, but delivery requires that the grantor part with possession of the deed and relinquish all power and control over it for the grantee’s benefit at the time of delivery.
- A grantor’s retention of the deed and continued dominion over the property after execution are strong evidence that no present delivery was intended.
- An intention to deliver in the future, without an act that places the deed beyond the grantor’s control, is not a legal delivery.
- Recording of a deed after the grantor’s death cannot supply a missing delivery during the grantor’s lifetime.

## Conclusion

Because Tom Gilbert kept the deeds under his control for years and died before he transferred possession or surrendered control of them, the deeds were never delivered and therefore never became effective conveyances; the children’s later recording could not cure that defect, and the land remained in the estate.


Gilbert v. McSpadden, 91 S.W.2d 889 (1936)