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filed: October 14, 1988.


Appeal from Order of the Court of Common Pleas, Civil Division, of Monroe County, No. 2371 Civil 1982.


David W. Skutnik, Stroudsburg, for appellant.

Raymond P. Kashimba, Stroudsburg, for appellee.

Wieand, McEwen and Beck, JJ. Beck, J., files a dissenting opinion.

Author: Wieand

[ 378 Pa. Super. Page 419]

In this divorce action, the trial court held that real estate, the record title to which was held by third persons who were not parties to the action, was marital property and directed that husband pay to wife a portion of the value thereof in exchange for a quitclaim deed conveying wife's interest in the real estate to husband. Husband appealed. We reverse.

[ 378 Pa. Super. Page 420]

MarySusan and Gary Van Buskirk were married in 1972 and separated in 1982. One child, Jessica, was born of their marriage. MarySusan was employed as a retail sales clerk, and Gary was employed as a construction worker. The parties did not own real estate and had lived in rented properties throughout their marriage.

Gary's parents, Roe and Jean Van Buskirk, owned a tract of land in Hamilton Township, Monroe County, on which their residence was located. The tract had been owned by the Van Buskirk family since 1925. In December, 1978, Roe and Jean Van Buskirk caused a deed to be prepared for 1.889 acres, a part of the larger tract on which their residence was situated, and named therein as grantees their son and daughter-in-law, Gary and MarySusan Van Buskirk. This deed was executed on December 29, 1978 in the office of a notary public, who also took the acknowledgement thereof. The deed, however, was not delivered; neither was it recorded. Instead, the deed was retained by the grantors. Roe Van Buskirk testified that he had not intended to deliver the deed unless and until his son and daughter-in-law, who were then experiencing marital difficulties, were able to get things "patched up" between them. He explained that the deed had been executed to give his son and daughter-in-law an expectation which would help solidify their marriage. Delivery was to occur in the future only if the younger Van Buskirks were able to stabilize their marriage.*fn1

Following the signing of the deed, Gary Van Buskirk, with assistance from his wife and parents, expended time, effort, and some money in constructing a partially completed residence on the lot. Most of the financing, however, was arranged by Roe and Jean Van Buskirk, who personally borrowed the necessary money. The loan was secured by a mortgage executed by the elder Van Buskirks and

[ 378 Pa. Super. Page 421]

    constituting a lien on the entire tract which they owned, including their residence, in Hamilton Township. Mortgage payments, including interest, were made by the elder Van Buskirks, who also paid taxes and the cost of insurance. The younger Van Buskirks, who occupied the partially completed dwelling, paid rent to Gary's parents. When the marriage of the younger Van Buskirks deteriorated further, Roe Van Buskirk determined that he and his wife would not make a gift of the real estate and destroyed the deed.

The trial court held, despite the undisputed fact that the deed had not been delivered, that a completed gift of the real estate had nevertheless been made. Therefore, the court directed that Gary Van Buskirk pay one-half the equity in the partially completed residence ($18,066.78) to MarySusan Van Buskirk, who was directed to execute a quitclaim deed conveying her interest in the real estate to Gary Van Buskirk.

This was error. It is essential to the validity and effectiveness of a deed that there be a delivery of the deed. See: Fiore v. Fiore, 405 Pa. 303, 174 A.2d 858 (1961); Rynier's Estate, 347 Pa. 471, 32 A.2d 736 (1943); In re Estate of Darlington, 364 Pa. Super. 75, 527 A.2d 159 (1987).

To make a valid gift there must have been not only an intention to make it but to do so at the time and not in the future, and it must be accompanied by an actual or constructive delivery to the donee by which the donor released all dominion over the property and invested the donee with full title to and control over the same.

Tradesmen's Nat'l Bank & Trust Co. v. Forshey, 162 Pa. Super. 71, 73, 56 A.2d 329, 331 (1948) (quoting cases). See also: In re Rogan's Estate, 404 Pa. 205, 212, 171 A.2d 177, 180 (1961) (intent of donor to make an immediate transfer is essential). "Since it is impossible to make manual delivery of real property, delivery of the deed of such property is necessary to render it legally operative and to convey title. The deed becomes operative when ...

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