## Facts

- Francis French owned approximately 200 acres of real property in Neosho County, Kansas.
- Francis wrote a letter to his brother, Dudley French, stating that unless Francis first sold the land, he intended to prepare a deed to Dudley and place it in an envelope with directions that it be mailed to Dudley and recorded upon Francis’s death.
- Francis executed and acknowledged a warranty deed naming Dudley as grantee, but the deed was not handed to Dudley during Francis’s lifetime and remained in Francis’s possession and control.
- Shortly before Francis died—when Francis was already unconscious—a third person found the letter and deed in Francis’s effects (in an envelope bearing directions that the deed was “to be recorded”).
- Francis remained unconscious until death and did not personally deliver the deed or otherwise communicate a present transfer after the deed was found.
- Shortly after Francis’s death, the letter and deed were delivered to Dudley.
- Dudley recorded the deed and took possession of the property.
- Dudley later conveyed the property by warranty deed to his brother-in-law, John Stone, for consideration; Stone was treated as a bona fide purchaser for purposes of the appeal.
- Seven of Francis’s heirs (including Dudley) brought an action to partition the property, asserting the deed to Dudley was ineffective and that the land descended to the heirs.
- The trial court found there was no valid delivery of the deed from Francis to Dudley and ordered partition; Stone appealed.

## Issues

1. Was the deed from Francis French to Dudley French validly delivered during Francis’s lifetime so that it operated as an effective conveyance?
2. If the deed was not delivered, could Stone, as a purchaser from Dudley, take more than Dudley’s fractional interest as an heir of Francis?

## Decision

- The court held the deed from Francis to Dudley was not validly delivered and therefore did not convey title.
- The court treated Francis’s plan—keeping the deed and directing that it be mailed and recorded only upon death—as an attempted transfer to take effect at death while Francis retained control, which is ineffective without delivery during life.
- Because the deed conveyed nothing, Francis died owning the land, and title passed to his heirs by intestate succession.
- Dudley therefore owned only his inherited share (one-seventh), and Stone could receive no greater interest from Dudley’s deed.
- The partition judgment was affirmed, limiting Stone to an undivided one-seventh interest.

## Legal Principles

- A deed is ineffective without delivery; delivery requires the grantor’s present intent that the instrument operate immediately as a conveyance, not merely as a post-death direction.
- A deed retained by the grantor, intended to be mailed or recorded only upon the grantor’s death, is treated as testamentary in character and fails for lack of delivery when will formalities are not met.
- A recital in a deed that it was “signed, sealed and delivered” is not conclusive; it may be overcome by evidence showing the grantor never parted with control of the instrument during life.
- Recording a deed after the grantor’s death does not supply the missing delivery and cannot create title that never passed.
- A purchaser, even in good faith and for value, can acquire no greater title than the purchaser’s grantor actually had.

## Conclusion

The Kansas Supreme Court affirmed partition because Francis French never delivered the deed to Dudley French during his lifetime and instead sought a transfer effective only at death while retaining control; as a result, Francis died owning the land, Dudley received only a one-seventh heir’s share, and John Stone took only that same one-seventh interest from Dudley.


Stone v. French, 1 Am.St.Rep. 237 (1887)