## Facts

- Arthur Mallernee owned a 160-acre farm in Douglas County, Missouri.
- In 1975, Arthur executed a warranty deed conveying the farm to his daughter Mildred Turner and her husband Harold Turner.
- Arthur signed the deed in the presence of his attorney, who notarized it and handed it to Mildred in Arthur’s presence.
- Mildred later gave the deed to her brother Roy Mallernee for safekeeping in a safe-deposit box, with discussion that the property might need to be mortgaged if Arthur later had significant medical expenses.
- The 1975 deed was never recorded, and Mildred did not regain possession of it.
- In 1978, Roy burned the 1975 deed and had Arthur sign a new deed conveying the farm to Roy and his wife Thelma; that 1978 deed was recorded.
- Arthur died in 1978 without substantial medical expenses that required mortgaging the farm.
- The Turners sued to quiet title based on the 1975 deed; the trial court found no effective delivery of the 1975 deed and quieted title in the Mallernees under the 1978 deed.

## Issues

1. Whether the 1975 deed was effectively delivered, where it was handed to the grantee in the grantor’s presence but later held by a third party for safekeeping.
2. Whether discussions about a possible future mortgage for the grantor’s medical expenses showed the grantor retained dominion or imposed a condition negating delivery.
3. Whether a later recorded deed could prevail over a prior unrecorded deed, assuming the earlier deed was delivered.

## Decision

- The appellate court reversed the judgment for the Mallernees.
- The court held the 1975 deed was effectively delivered and conveyed title to the Turners.
- The court held the lack of recording did not invalidate the 1975 deed as between the parties and those with notice.
- The court ruled that burning the 1975 deed and executing the 1978 deed could not divest title already vested in the Turners.
- The case was remanded with directions to quiet title in the Turners and cancel the 1978 deed as a cloud on title.

## Legal Principles

- Delivery of a deed requires the grantor’s intent to presently pass title and to place the deed beyond the grantor’s legal control, determined from all facts and circumstances.
- When an executed deed is handed to the grantee in the grantor’s presence, a presumption of delivery arises.
- A deed may be effectively delivered even if the grantee later places it with a third person for custodial safekeeping on the grantee’s behalf.
- Recording is not required for a delivered deed to pass title as between the parties and against persons who are not protected bona fide purchasers without notice.
- After effective delivery, subsequent destruction of the deed and a later conveyance by the grantor do not revest title or defeat the grantee’s ownership.

## Conclusion

Because Arthur executed and delivered the 1975 deed to Mildred in his presence, title passed to the Turners despite nonrecording; Roy’s later destruction of the deed and the recorded 1978 deed could not defeat the Turners’ already vested title, so the later deed was canceled as a cloud on their title.


Turner v. Mallernee, 640 S.W.2d 517 (Mo. Ct. App. 1982)