Delivery of instruments which are witnessed, acknowledged and recorded in accordance with Vermont law, is presumed in all cases. Specifically, delay in recording, with or without record evidence of the intervening death of the grantor, does not of itself rebut the presumption.
Comment 1. A transfer of title to real estate, by deed, requires a delivery of the deed. The fact of execution of the deed does not suffice to transfer title; and recording of the deed is not necessary to transfer title, only to give notice of the transfer to third parties. A potential problem arises in that, unlike execution, which requires the presence of a witness and notary, or recording, which requires the Town Clerk, delivery may take place in private, with only the parties present. Furthermore, the delivery of the deed must be with the intent to make a present transfer, rather than in any sort of escrow, loan, fraud on creditors or spouses, etc. Delivery is, therefore, far more difficult of proof than either execution or recording, even though it is the fact crucial to the transfer. In an attempt to avoid that difficulty of proof especially in the absence of the original parties, Vermont law provides that a presumption of delivery of the deed arises when a deed is properly executed and recorded. This presumption may fly in the face of facts; for instance, a seller might execute his deed and hold it pending receipt of payment, and the “buyer” might steal the executed deed and record it without the consent of the seller. The presumption is not, therefore, conclusive. Nonetheless, a prudent title examiner may rely upon such presumption in the absence of any definite rebutting evidence.
Comment 2. In most cases, a deed will be delivered at the time of execution, and recorded as soon as practicable after execution and delivery. In those cases in which there is a substantial time interval between execution and recording, there is no certain means of determining the time of delivery. This uncertainty does not, however, negate the presumption of delivery.
Comment 3. A particular problem is presented when there is a substantial interval between the execution of the deed and the recording thereof and the grantor is known to have died or to have become incompetent in the interval. In the absence of any significant evidence to the contrary, the presumption still applies – the grantor is presumed to have delivered the deed prior to death or other disability.
Comment 4. The issue of status of title in the situation in which a grantor executes a deed, and places it in the hands of a third party for safekeeping, or it is found in the “grantor’s” effects following death, and then recorded, is beyond the scope of these standards, as it would require determination – presumably by a court of competent jurisdiction – of the grantor’s intent. A prudent attorney or title examiner, having actual knowledge of such a state of facts would normally decline to certify title under the deed in question pending a court ruling or corrective action.