## Facts

- Johnnie Wesley Clemons owned a one-acre tract with a house in Norwood, Wright County, Missouri.
- Clemons died intestate on August 28, 1986; the property would pass through his estate absent an effective inter vivos conveyance.
- Plaintiffs were Clemons’s blood relatives; one plaintiff served as personal representative of the estate.
- Defendant Terry Cole was related to Clemons through Clemons’s late wife.
- During Clemons’s lifetime, a deed naming Cole as grantee was executed; Clemons was mentally competent, and no claim of undue influence was made.
- About 1.5 weeks after Clemons died, plaintiffs and others searched Clemons’s house for a box; they located it in a spare bedroom and found the deed inside.
- The deed had not been recorded during Clemons’s life; after it was found, it was given to Cole, who recorded it.
- Evidence suggested Clemons viewed the paperwork as part of an estate plan, including directions that the property be used to pay debts and funeral expenses and then the remainder divided.

## Issues

1. Whether a deed was validly delivered when it remained unrecorded and in the grantor’s possession at the grantor’s death.
2. Whether the grantee’s knowledge of the deed’s existence and location, and the grantor’s statements or directions about recording, rebut the presumption of non-delivery arising from post-death discovery in the grantor’s effects.

## Decision

- The Missouri Court of Appeals reversed the trial court’s judgment for Cole.
- The court held there was no effective delivery of the deed to Cole.
- The court concluded the evidence did not overcome the presumption of non-delivery created by the deed’s unrecorded status and its presence among Clemons’s possessions at death.
- The deed was set aside as ineffective to convey title; the property remained part of Clemons’s estate for distribution under intestacy.

## Legal Principles

- Delivery of a deed requires the grantor’s intent to make a present transfer and an act that places the deed beyond the grantor’s dominion and recall.
- When an unrecorded deed is found among the grantor’s papers or effects after death, Missouri law treats those circumstances as a prima facie showing (presumption) of non-delivery.
- Oral statements describing an intended disposition or estate plan, without relinquishment of control over the deed, generally do not establish delivery.
- Instructions to record, or the grantee’s knowledge of a deed’s location, do not constitute delivery if the grantor retains possession and control during life.

## Conclusion

Because the unrecorded deed remained in Clemons’s possession until his death and the proof did not show a relinquishment of control sufficient to rebut the presumption of non-delivery, the deed was not delivered and did not transfer title to Cole.


Williams v. Cole, 760 S.W.2d 944 (Mo. Ct. App. 1988)