Title Examination Standards
Chapter 1, App.
Chapter 6. Execution, Acknowledgment and Recording
§6.4. Delivery; Delay in Recording.

Delivery of instruments acknowledged and recorded is presumed in all cases. It is also presumed that delivery occurred on the date of the instrument's execution. Delay in recording, with or without record evidence of the intervening death of the grantor, does not end the presumption or create an unmarketable title. However, as an added exceptional protection to their clients, examiners may satisfy themselves as to the facts by inquiry outside the record title.

Authority: Watkins v. Musselman, 205 Okla. 514, 239 P.2d 418 (1951); Fisher v. Pugh, 261 P.2d 181 (Okla. 1953); State, ex rel. Comm'rs of Land Office v. Leecraft, 279 P.2d 323 (Okla. 1955); Wasson v. Collett, 204 Okla. 360, 230 P.2d 258 (1951); Hamburg v. Doak, 207 Okla. 517, 251 P.2d 510 (1952); McKeever v. Parker, 204 Okla. 1, 226 P.2d 425 (1950); 12 O.S.A. §§ 2902 & 3005 (which replaced 16 O.S.A. § 27, repealed by 1978 Okla. Sess. Laws ch. 285, § 1102); P. Basye, Clearing Land Titles § 13 (1953); Powell on Real Property, § 899 (1958); 26A C.J.S. Deeds. §§ 185,187 & 204g; L. Simes & C. Taylor, Model Title Standards, Standard 6.3, at 43-45 (1960). Comment: The presumption of delivery of recorded instruments inheres in our system of proving titles by public records. This is the law in Oklahoma. The presumption is strengthened by our statute creating a rebuttable presumption of delivery, 16 O.S. § 53 (3), and by statutes making certified copies of recorded instruments affecting real estate prima facie evidence in all courts without further authentication. The presumption is not overcome by inferences to the contrary drawn from the record. When the record shows a long delay in recording or the death of the grantor prior to the recording of the instrument, the following procedures are suggested: (1) if the instrument has been recorded longer than fifteen years, do not inquire; (2) if the abstract or records or convenient inquiries do not reveal the death of the grantor, do not inquire further; and (3) if death occurred between the dates of execution and recording, inquire but appraise the situation realistically with a view to the probability of a claim of non-delivery. Affidavits resulting from such inquiry may be recorded. However, recording is unnecessary and may create more doubts than previously existed. It should be emphasized that delay in recording and post-mortern recordation are in themselves unobjectionable and do not render a title unmarketable. The actual risk inherent in non-delivery is easily over-emphasized. By use of presumptions, estoppel and other legal theories, courts properly display an almost insurmountable hostility to claims against innocent purchasers of apparently clear titles.

Adopted as 6.4, December 2, 1961, 32 O.B.A.J. 2280 (1961), printed, id. at 1867-68, 1922-23, 1971-72 & 2031-32. The 1998 Report of the Title Examination Standards Committee recommended brief amendments to respond to the Legislature's adoption of 16 O.S. § 53 relating to rebuttable presumptions arising from recorded instruments, and 16 O.S. § 82 relating to uses of affidavits. 69 O.B.J. 3474 (October 17, 1998). The Real Property Law Section approved the amendments on November 12, 1998 and the House of Delegates adopted them on November 13, 1998. 69 O.B.J. 4166 (December 5, 1998).