1. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. MOSELEY v. ZIEG 180 Neb. 810; 146 N.W.2d 72 (1966) Case Brief

2. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. MOSELEY v. ZIEG PURPOSE: This case illustrates the extreme formalism of real property transactions, here the importance of the delivery of a deed.

3. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. MOSELEY v. ZIEG CAUSE OF ACTION: Action by the special administrator of an estate to cancel a deed.

4. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. MOSELEY v. ZIEG FACTS: Otto W. Miller was the grantor of the deed in question, Mary S. Zieg the grantee. He died on March 18, 1964 and left a will executed on May 4, 1960, naming four stepchildren of deceased wife. Miller lived in the house named in the deed and rented apartments there. On November 9, 1961, Miller had his attorney, Ralph S. Moseley, prepare the deed in question, conveying the premises to Mrs. Zieg. There was testimony that Miller said he was in love with Mrs. Zieg and was going to see she got the property after he died, having made a new will that would give her the property and that she had been given a deed to the property. Mrs. Lillith Gluesing, the occupant of Miller’s upstairs apartment, testified by deposition that he would marry Mrs. Zieg if she were single. (continued)

5. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. MOSELEY v. ZIEG In July or August 1963, he said, “‘This house belongs to Mary. I have taken care of that,’ something about all the paper work has been done. ‘I have been to see my lawyer, all the paper work is signed and it has been delivered.’” Owen, a son of Mrs. Zieg, testified similarly. Attorney Moseley testified that Miller came to him and requested him to make the deed on 11/9/1961. It was then prepared, signed, witnessed, and acknowledged by Miller. Moseley told Miller to give it to Mrs. Zieg to make good delivery. Miller stated the deed would be effective at his death. After Miller’s death, Mrs. Zieg contacted Moseley and went with him to the safe deposit box where Mrs. Zieg signed for admission to the box. She had a key. In the box was the deed in question, in an old envelope with the words, “‘To be filed at my death.’” He gave the deed to Mrs. Zieg at that time.

6. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. MOSELEY v. ZIEG ISSUE: Whether the trial court was correct in finding that the grantor never delivered the deed in his lifetime to anyone so that no transfer of title took place.

7. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. MOSELEY v. ZIEG HOLDING: Yes, the facts show that the appellants were unable to meet the burden of proof that the deed had been delivered.

8. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. MOSELEY v. ZIEG REASONING: “We think it must be conceded the deed was procured from the joint safe deposit box. If so, it was placed there by Miller in his lifetime because he was the only person who had access to it before his death. The presumption of delivery of a deed found in the possession of a grantee in the grantor’s lifetime does not obtain in the present case. The burden here was on the defendants to prove delivery.”