Counties; Power to Acquire Property; Deed of Gift to County

May 11, 1979

Subject:

Requested By:

William F. Marshall, Jr. Stokes County Attorney

Questions:

At what point is a county deemed to have validly accepted a conveyance of real property?
Where a deed was dated and signed by the grantors in 1968, will a county be deemed to have acquired the property prior to formal acceptance by the board of county commissioners in 1973?

Conclusions:

Upon acceptance by the county board of commissioners.
No.

Pursuant to G.S. 153A-158, counties may acquire, by gift, grant, devise, bequest, exchange, purchase, lease, or any other lawful method, and interest in real property for use by the county.

G.S. 153A-11 directs that the inhabitants of each county shall be a corporation vested with full property rights, including the power to acquire and hold real property. G.S. 153A-12 requires that each power, right, duty, function, privilege and immunity of the corporation be exercised by the board of commissioners. Thus, it follows that acceptance of real property by a county requires an action by the board of commissioners.

According to the facts made available, Stokes County applied for a matching grant from the Bureau of Outdoor Recreation in 1971. The County was allowed to contribute its matching share by either cash or property, however, if property was used it was required to be acquired after project approval by the Bureau of Outdoor Recreation. The project was approved on April 24, 1973, and on June 4, 1973, the Board of Commissioners of Stokes County formally accepted, by deed of gift, a piece of property to be used as the County’s matching share. This deed was properly registered on June 14, 1973, by the Register of Deeds of Stokes County. The Bureau of Outdoor Recreation subsequently reviewed this grant and took the position that Stokes County had actually acquired the property in 1968, thereby violating the grant conditions. Stokes County was thereafter requested to refund the initial grant of $14,078.50.

The basis for the Bureau of Outdoor Recreation’s decision was the fact that the deed to the property conveyed to Stokes County was dated October 15, 1968, and was executed by the appropriate parties within two months of that date. Stokes County takes the position that as the deed was not delivered and formally accepted by the Board of Commissioners until June, 1973, there was no acquisition by the County until well after final project approval by the Bureau of Outdoor Recreation.

It is well established that a conveyance of land by deed becomes effective when the instrument is signed, sealed and delivered to the grantee. New Home Bldg. Supply Co. v. Nations, 259 N.C. 681 (1963). Delivery is essential to the validity of a deed in North Carolina, Williams v. North Carolina State Board of Education, 284 N.C. 588 (1973), however, the grantee must indicate acceptance before the deed becomes effective. Ballard v. Ballard, 230 N.C. 629 (1949). As G.S. 153A-12 requires that each function of the county be exercised by its board of commissioners, there could be no acceptance of the deed by Stokes County until formal action was taken by the Board of County Commissioners.

The deed of gift was therefore accepted on June 4, 1973, by resolution of the Board of County Commissioners. As project approval was finalized by the Bureau of Outdoor Recreation on April 24, 1973, we are of the opinion that Stokes County has complied with the grant requirement that only after-acquired property be used as the County’s matching share.

Rufus L. Edmisten Attorney General

Grayson G. Kelley Associate Attorney