Heads up, guys.?ÿ This may be "old hat" to some, but I rarely encounter this situation.?ÿ
Last year, I completed an 80-acre boundary survey, where the corner of the main parcel had a cut-out of 3 acres for the landowner's daughter. The 3-acre cut-out had a house on it, and the description read a little "odd," but I ran with what I had, which was the 80-acre parcel description that had been surveyed, and the 3-acre out-parcel with the odd description.?ÿ The courthouse records had two descriptions listed, and I got copies of both.?ÿ The first one was a warranty deed for 3 acres, and the second was a deed of correction for 2.4 acres.?ÿ Upon plotting both of the descriptions, there was a 131-foot "bust" in the first warranty deed description, and the correction warranty deed "fixed" the bust by removing a bearing (to the nearest second) and a distance (nearest foot, more or less) on one of the boundaries to the phrase "run thence in a northwesterly direction to the road right of way", and changing the distance on the east boundary.?ÿ I immediately looked at who generated the "correction deed" and figured out that the attorney who wrote the description did so without the benefit of a survey, and has been known to do this on many occasions. Even the correction deed contained errors! To complicate things more, a neighbor had moved two of the 14 markers I tied in to on the 80-acre boundary, which I caught and compensated for.?ÿ One was about 6-1/2 feet out, the other was about 30 feet out! As an afterthought, both moved markers were not driven to ground level like the rest of the markers, so I had suspected something was up when one was not where I calc'ed it to be, and the other was pointed out to me by the person that moved it.?ÿ It just "looked" different.?ÿ This one was not a boundary corner, but a "turn" corner on an adjacent property owner that also cornered with the pin mover's corner. "Out of position" was noted on the plat along with deed versus measured calls.?ÿ
Back to the 3-acre / 2.4 acre dilemma: An attorney called last month inquiring about the survey and the Deed of Trust that went with the house.?ÿ Come to find out, a Deed of Trust was created using the old, original warranty deed that had the 131-foot bust in it, and it was under foreclosure.?ÿ The lending agency was wanting to know more about their 3-acres, and why it did not match my survey, which conformed more to the newer correction deed.?ÿ Someone had failed to update the deed of trust description, but I suspect that the lending agencey had assessed the value of a 3-acre parcel with a residence and someone - landowner or lending agency - probably would not / did not want to go with a lesser value 2.4 acre parcel.?ÿ I am not sure of the reasoning behind not updating the description on the deed of trust, but I learned another lesson in my 40+ years of surveying.
Most of the time, a deed of trust is created by using the survey description of the whole parcel, or a surveyed out parcel from a larger parcel, and is typically used as collateral along with a proposed or existing residence with a lending agency.?ÿ Bank loan surveys are typically reasons for creating a deed of trust by using the land as one of the valued assets.?ÿ Most of the time, the deed of trust is the same as a warranty deed, and I usually do not check those unless the attorney specifically asks for it or instructs me to use the deed of trust as a basis for the survey.?ÿ I found out later (lesson learned) that sometimes the descriptions do not match.?ÿ I had pulled the deeds of history (chain of title for a few years back), and caught the?ÿ discrepancy between the warranty deed and the correction deed.?ÿ I rarely, if ever, pull the deed of trust unless there is a specific reason to do so.?ÿ It is indeed a rare occurance where they do not match, and this one did not. So, I went back and "fixed" my survey to where the 80-acre landowner could sell that part of his 80 acres that did not include the erroneous 3-acre / 2.4 acre parcel lines, or create any cloud on title for the remainder large parcel.?ÿ After talking to the attorney, it was decided that this was the best, or quickest route to go at this time, and will recommend that the property line between the two parcels be corrected by an exchange of deeds at a later date.?ÿ This solution did increase the 3-acre / 2.4 acre parcel to 3.2 acres, which is about 0.8 acre less that what the new buyer was expecting.?ÿ The foreclosure people will get an extra 0.2-acres, "more or less."?ÿ Family problems now may prevent the correction any time soon, but maybe the future landowners will be able to work something out.?ÿ
Live and learn.........................................
When I see a mis-match of bearings to the nearest second and an accompanying distance to the nearest foot, more or less, I know something is up.
When I see bearings to the nearest second and an accompanying distance to the nearest hundredth of a foot, and the next call is in a "northwesterly direction" to a monument or line with no accompanying distance, I know something is up.
When I see the words "more or less" mixed in with obviously more accurately measured angles or distances, I know something is up.
I have suspicious mind when trying to figure out the intent of a deed.?ÿ But that is what I do. Y'all do it, too.
Drive 'em straight and deep, guys!
Harold,
I am uncertain of the tools available in your State, but would encourage you to investigate and reconsider before 'exchanging deeds'. That practice implies a new transfer of property as opposed to a correction of the record. Often this results in a deeper pile of manure and the owners are in worse shape than before. It may also being in the planners and subject the owners to inapplicable ordinances.
My .02, Tom
Another slip up that occurs is accidentally ignoring a small tract that has been deeded off.?ÿ How this happens and no one notices is what amazes me.?ÿ Say Frank had a full quarter section.?ÿ Then he deeds a one-acre tract to the rural water district on which a water tower is erected.?ÿ Frank dies.?ÿ Someone in the estate attorney's office is told to pull up Frank's deed.?ÿ That is exactly what they do.?ÿ They find his deed from when he acquired the full quarter section.?ÿ That is the description that is used to do whatever it is they are doing.
This happens all the time. The parent parcel granted the 3 acres out of 80, leaving 77. Then there was a discovery of a mistake and a corrective deed was recorded. Of course the original grantor needed to grant the new corrective deed. It can't be done by a successor. So lawyers have informed me.?ÿ
However, there can be some underlying issues concerning the chain of title such as the corrective deed being granted by a successor which could make it invalid.?ÿ
And the trust deed issue. It's the same thing, they sometimes get an older description put into the Trust that isn't updated to the actual conditions. Think of how this all works. There is a good trust attorney. The attorney crafts trusts to protect people from tax burdens. The attorney isn't a title attorney, probably knows some about it. Looks up the client's description which doesn't include the last few grants and puts into the trust deed.?ÿ
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@holy-cow?ÿ One would think a Title Report would catch things like that.
Not everyone wants to waste money on a title report.?ÿ Their opinion, not mine.?ÿ If there is no lender involved most people skip the title insurance expense the same way they skip having it surveyed.?ÿ Comes up rather frequently when family members deed to other family members with no attorney or lender involved.?ÿ Someone grabs the original deed and forgets about the cutout that was deeded off years ago.
