@thebionicman when it comes to a property sold twice, you are correct, first in time comes first and that's where first to file might come into play. The is not the situation that was expressed in the original post so it did not come into play in my discussion points.
@dave-karoly I don't understand your distinction. In your example there is no boundary issue, but in the situations being discussed there is. Every boundary issue is a question of who has title to a specific piece of land.
Every boundary issue is a title issue, but not every title issue is a boundary issue.
In the case of an apparent overlap in Deeds there is no title problem, both parties presumably have clear title to their respective tracts. If they can’t agree on their common boundary location then that can be resolved a couple of ways depending on how the case is presented to the court and the evidence available. If the boundary has not been established then it should be established according to the Senior deed. If it is found to have been established then there is no need to stake the Senior deed because it already carries up to the established boundary and no further.
According to the authorities the established boundary is the same boundaries called for by the deeds.
@chris-bouffard I made the example simple. Say I own 500 feet. I sell the east 300 feet to A first and the east 300 to B later. B records first. B gets 309 feet. A gets 200 plus whatever he can squeeze out of me.
There are many ways this starts, but it plays out the same here, be it selling twice, overlap, easement, etc. The only variation is the quality of the attorneys and level of insanity of the judge. I don't see specifics in the OP or thread pointing to anything else... did I miss something?
To answer the question more directly; yes we routinely find the situation but mostly in older deeds in the chain of title (1800's or earlier). There was a problem so they came up with recording statutes to address it. The first deed that meets all the requirements (including execution) would win without recording statutes. But that sometimes led to fraud, hence the statutes.
People being people though, it can still get complicated. For instance, in addition to the intricate matter of inquiry notice, there is the issue of who is protected by the statutes. Only a BFP is protected. Is the person claiming protection under the statute a relative with different last name, was it a gift (even though claimed not to be), etc... Only bonified purchasers of value get protection under the statutes, and there's plethora of cases where people appeared to be BFP's but after trial and all sorts of testimony and investigation (far beyond the survey work) the courts say no you don't qualify.
I wouldn't want to defend a boundary decision based on senior rights, too many unknowns. Might use as a backup to show that in addition to having found the original line, said location is also equitable in that if we couldn't find it the senior rights would probably put it there.
Not saying we should ignore senior/junior rights. But personally I try to avoid relying on them for any substantive survey opinion. Have found no reason to in all my years of practice.
Did have a case where the surveyor arguing senior rights lost to our retracement. But the guy claiming senior rights did eventually get the frontage his deed claimed. The adjoining parcel was sold back to original subdivider and so back to court he went and court said collateral estoppel automatically transferred the missing 10 feet to him.
@dave-karoly I don't understand your distinction. In your example there is no boundary issue, but in the situations being discussed there is. Every boundary issue is a question of who has title to a specific piece of land.
Every boundary issue is a title issue, but not every title issue is a boundary issue.
In the case of an apparent overlap in Deeds there is no title problem, both parties presumably have clear title to their respective tracts. If they can’t agree on their common boundary location then that can be resolved a couple of ways depending on how the case is presented to the court and the evidence available. If the boundary has not been established then it should be established according to the Senior deed. If it is found to have been established then there is no need to stake the Senior deed because it already carries up to the established boundary and no further.
According to the authorities the established boundary is the same boundaries called for by the deeds.
So a location question is sometimes also a title question, or resolved by title principle.
If the boundary has been established (that is, placed on the ground at some point by someone with authority to do so and intended to correctly mark the line at the time), particularly if the statutory period of repose has elapsed since establishment, then the title element is typically removed and it's strictly a location question. The surveyor needs to do a little investigation before accepting or rejecting the presumption that a line of occupation and/or apparent survey line is there to mark the true boundary. Who did it? When did they do it? Did they intend to mark the boundary when they did it? Had the location been disputed within the period of repose and if so, is that dispute continuing?
Whether or not the established location conflicts with the location described in the senior deed is a location question.
Whether a location conflicting with that described by a senior deed is ow superior to the senior described location is a title question.
The presumption that all boundary lines have at one time been established may be true (and would make sense) in the Colonial States. It does not hold true, and I don't think the presumption exists in the PLSS States, or at least the more western PLSS States. In my experience, many boundaries have been described and lands conveyed without the boundaries having been established on the ground. Mostly but not always, these are aliquot lines.
In 42 years of surveying, I can't recall seeing, or being aware of the exact same piece of property having been conveyed to one person and then again to another. But I have seen many times where a grantor sold one half of a parcel by the term "half" and sold the other part by reciting a distance believed to be half (i.e. The E 1/2 of a 200' parcel to one grantee and the West 100' of the 200' parcel to another grantee). Doesn't matter the size of the parent parcel, this always results in a potential gap and/or overlap.
You need to research the title and the location history before coming to conclusions. If location and senior title conflict, you need to answer the title questions (seniority, establishment longer than period of repose, etc) to decide the location question.
So you do need to know whether your State is a Race, Notice or Race-Notice jurisdiction (see Post 3, Mi-Other-left) if you are dealing with both recorded and unrecorded conveyances. You also need to know the statutes pertaining to repose, AP and prescription in your state.
The questions of title and location are different but closely linked. Don't separate them prematurely.
Hello,
The situation you've described with the execution and recording dates of Deed A and Deed B is indeed unusual. While I'm not a legal expert haha.
It depends on the state (jurisdiction).
For the win...and in some states the date matters, as they have switched from race to record to some other procedure.
I made the example simple. Say I own 500 feet. I sell the east 300 feet to A first and the east 300 to B later. B records first. B gets 309 feet. A gets 200 plus whatever he can squeeze out of me.
???
You mean east 300 to A
WEST 300 to B
and B gets 300 (not 309?)
I am only asking because either you meant what you typed, or you were using your phone 🙂
placed on the ground at some point by someone with authority to do so
What do you mean?
Long standing occupation, acquiescence, etc...who has more authority than the holder of the estate?
This is good stuff for me to learn as i am preparing for licensure. This site is awesome. Now i will take some aspirin so my brain can rest. The more I learn the more I realize how un- edumacated i am and how much more i have to learn. I hope my brain can hold out a little longer. Y’all keep posting this stuff so i can edumacate myself.
This still comes up in NC fairly often. We're a pure race state.
Helpful hint for those who do their own deed research (I wasn't aware until I joined SC that many PLSs use a title company). Once your research takes you back to the Great Depression era, look at a couple pages before and after any deed you find. Even in a pure race state, it was not uncommon for some folks to head to the registry with a stack of deeds they'd been saving up for a few years. I've found many uncalled for, but useful, descriptions this way.
placed on the ground at some point by someone with authority to do so
What do you mean?
Long standing occupation, acquiescence, etc...who has more authority than the holder of the estate?
No one.
placed on the ground at some point by someone with authority to do so
What do you mean?
Long standing occupation, acquiescence, etc...who has more authority than the holder of the estate?
No one.
