OPINION
Appellant, Peggy A. Hardine, filed suit for negligence and breach of contract contending she lost her rights as a joint tenant to a parcel of property because of appellee’s loss of and failure to record an exеcuted joint tenancy deed. Judgment was entered in favor of appellee on the basis that appellant had fаiled to prove any damages and this appeal followed.
In March 1982 Peggy Hardine requested an escrow officеr of appellee, now known as TICOR Title Insurance Company, to prepare the appropriate deеds for her then-husband John Hardine to transfer a parcel of his separate property to a straw party who would thеn convey it to Peggy and John in joint tenancy. The deeds were executed and acknowledged at a branch office of TICOR and then sent to the main office for processing for recordation. TI-COR had drawn up the deeds as a courtesy аnd received no fee for their preparation. The joint tenancy deed was somehow lost, and neither deed was recorded. A copy of the executed joint tenancy deed was admitted into evidence at the trial of this ease.
Shortly after the deed execution the couple separated, and a dissolution was granted in November 1982. In the dеcree, the couple agreed that the property was John Hardine’s separate property. This action was filed a short time before the dissolution decree was entered.
The issue presented in this case is whether the negligence of TICOR in misplacing the joint tenancy deed prior to its recordation resulted in the loss of appellant’s interest in the property. Appellant contends she was unable to pursue her claim to an interest in the property in the dissоlution action because, without the deed, she had no evidence available to her with which to prove the claim. An examination of the facts, however, does not support that contention.
A valid transfer of real property in this stаte is required to be by an instrument in writing, signed, acknowledged, and delivered. A.R.S. § 33-401. In order to create a valid joint tenancy, the four unitiеs must be present, the unity of time, unity of title, unity of interest and unity of possession.
Kleemann v. Sheridan,
Appеllant agrees that was the case here, ' but contends that because
Safley v. Bates,
Appellant’s contеntion is incorrect. The two deed executions satisfied the requirements of
Safley v. Bates,
supra, and established the change of status of the parcel from John Hardine’s separate property to the couple’s joint tenancy property. Thе subsequent loss of the joint tenancy deed did not have the effect of cancelling the deed. The rule is that a lost deеd does not divest a grantee of his title,
Kleemann v. Sheridan,
supra;
State, by Pai v. Thom,
In order to prove the existence of a lost deed, its proponent must present clear and convincing evidence of its execution, delivery and contents.
Gooch v. Rodewald,
Appellant conceded at trial that she had made no effort to claim an interest in the propеrty in the dissolution proceeding. She instead agreed to a property settlement which stated the parcel was John Hardine’s separate property and chose instead to pursue a claim against appellee.
Appellant contends the trial court improperly found she had voluntarily entered into the property settlement agreement which stated the parcel was John’s separate property. That issue, however, was never raised at trial, аnd no evidence exists to support the contention.
The trial court found appellee was negligent in failing to havе the deed recorded after it was executed. The recording statutes are for the purpose of creating notice to protect against claims of subsequent purchasers without notice.
Chantler v. Wood,
We hold appellant suffered nо loss from appellee’s negligence in failing to record the deed. Since damages are an essential elеment of a cause of action in negligence,
Vivian Arnold Realty Co. v. McCormick,
Judgment affirmed.