Robert K. and Dawn E. Lowry - Page 14

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               SEC. 1057.  Delivery in escrow                                         
                    DELIVERY IN ESCROW.  A grant may be deposited by                  
               the grantor with a third person, to be delivered on                    
               performance of a condition, and, on delivery by the                    
               depositary, it will take effect.  While in the                         
               possession of the third person, and subject to                         
               condition, it is called an escrow.                                     
               In this case, the Grant Deed was jointly delivered by the              
          Partnership and AAL to the Title Company with the escrow                    
          instructions, so under section 1057 of the California Civil Code            
          and California case law, title to the Fitch Property did not pass           
          to AAL until performance of the conditions in the escrow                    
          instructions had been achieved.  It has long been held in                   
          California, as elsewhere, that delivery of an instrument in                 
          escrow conveys no title.  In re Chrisman, 35 F. Supp. 282 (S.D.             
          Cal. 1940).  Consequently, the warranty deed was delivered to AAL           
          in 1994 when the terms of the escrow were satisfied, and the deed           
          was duly recorded, and not before.                                          
               Petitioners seek to bring their facts within those of Keith            
          v. Commissioner, 115 T.C. 605 (2000), to show that a title                  
          closing is not necessary to establish a closed transaction.  The            
          facts of Keith, however, are specifically relevant to a form of             
          transaction under Georgia law known as a “contract for deed”.               
          Georgia law normally construes a contract for deed as a device              
          for passing equitable ownership, leaving the seller with                    
          essentially a security interest.  Id. at 614.                               







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