Rice v. Neether
2016 ND 247
N.D.2016Background
- Joyce and Alvin Neether signed warranty deeds (reserving a life estate) purportedly conveying real property to their grandson, Cory Rice, on July 29, 2009; Rice was not present.
- Attorney Wayne Enget prepared and witnessed the deeds and told the Neethers he would record them on July 30, 2009.
- On July 30, Joyce instructed Enget not to record the deeds and never authorized recording or delivered the deeds to Rice.
- Rice later asserted he owned the property, discovered potential development, and sued to quiet title in 2012.
- The district court found no actual or constructive delivery, held Enget acted as the Neethers’ attorney (not Rice’s), and quieted title in favor of Joyce.
- Rice appealed, arguing (1) N.D.C.C. § 47-09-06 creates a rebuttable presumption of delivery at the deed date, and (2) constructive delivery occurred under N.D.C.C. § 47-09-09(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 47-09-06 presumes delivery of a deed (so plaintiff need not separately prove delivery) | Rice: statute creates a rebuttable presumption the deed was delivered as of its date | Neether: statute presumes date of delivery only after delivery has been proven; delivery itself is not presumed | Court: statute requires proof of delivery first; presumption only fixes date after delivery is established |
| Whether deeds were constructively delivered under § 47-09-09(2) (delivery to a stranger for grantee's benefit) | Rice: Enget was Rice’s agent or a stranger holding deeds for Rice’s benefit, so assent/presumption of assent supports constructive delivery | Neether: Enget acted for the Neethers, not Rice; deeds remained under Neethers’ control and intent to deliver to Rice was lacking | Court: No constructive delivery; Enget was Neethers’ attorney, deeds remained under their control, and intent to deliver was absent |
Key Cases Cited
- Jorgensen v. Crow, 466 N.W.2d 120 (N.D. 1991) (absence of delivery renders deed ineffective)
- Leonard v. Fleming, 102 N.W. 308 (N.D. 1905) (time of delivery not shown by independent evidence; deed date may be presumed only absent evidence to the contrary)
- O’Brien v. O’Brien, 125 N.W. 307 (N.D. 1910) (delivery is question of all circumstances surrounding transaction)
- McGuigan v. Heuer, 268 N.W. 679 (N.D. 1936) (delivery occurs when grantor parts with control and leaves deed with third person as grantee’s agent)
- Keefe v. Fitzgerald, 288 N.W. 213 (N.D. 1939) (intent of grantor is indispensable element of delivery)