## Facts

- John William Smith executed a quitclaim deed conveying certain real property to his daughter, Connie Sargent.
- Smith left the deed with his attorney, Richard Freedman, and instructed him not to record it and to await further instructions.
- Freedman testified he would not have recorded the deed without additional instruction from Smith.
- Weeks before his death, Smith allegedly asked his nephew, Gerald Buscemi, to have Freedman record the deed, but Buscemi did not contact Freedman before Smith died.
- After Smith’s death, Freedman’s office mailed the unrecorded deed to Sargent, who then recorded it.
- The estate’s personal representative later executed and recorded a quitclaim deed conveying the same property to himself individually.
- In a non-jury quiet title action, the trial court found the Smith-to-Sargent deed failed for lack of delivery, declared both deeds void, cancelled them of record, and left title to be resolved in probate.

## Issues

1. Whether the quitclaim deed from Smith to Sargent was delivered during Smith’s lifetime with present intent to transfer title, such that it effectively conveyed the property.

## Decision

- The appellate court affirmed.
- The Smith-to-Sargent deed was void for lack of delivery because Smith retained control and did not effect a lifetime delivery with present intent to pass title.
- Sargent’s post-death recording did not create a presumption of delivery because the grantor neither recorded nor irrevocably directed recording during his lifetime.
- The deed executed by the personal representative to himself individually was also void; both deeds were cancelled of record and title was left for determination in probate.

## Legal Principles

- Delivery is essential to a deed’s effectiveness; without delivery, no title passes to the grantee.
- A deed is ineffective as an instrument of title without delivery, even if delivery was intended but failed to occur.
- The key delivery inquiry is whether the grantor retained the “locus poenitentiae” (the opportunity to change his mind); if so, delivery is not complete.
- Recording can create a presumption of delivery when performed by the grantor (absent fraud), but recording by the grantee after the grantor’s death does not cure an absence of lifetime delivery.
- A deed first released to the grantee only after the grantor’s death, without a prior irrevocable act showing present intent to transfer, is ineffective as a conveyance.

## Conclusion

The court affirmed that the deed to Sargent failed because Smith kept dominion over the deed and did not accomplish a lifetime delivery with present intent to transfer title; post-death mailing and recording by Sargent could not supply delivery, and both competing deeds were properly declared void with title left to probate.


Sargent v. Baxter, 673 So. 2d 979 (Fla. Dist. Ct. App. 4th Dist. 1996)