legal descriptions continued

I would spell it correctly and then add in parenthesis some note. Schultz (some records spell as Shultz). Legal description are supposed to be concise but not at the sake of clarity.

The subdivision is called the Schutz Subdivision, that is how it is spelled on the recorded plat from the 1920's.

The subdivision recorded as Schutz Subdivision is not an incorrect spelling, it could be because that is the way that family spelled their name, any description written later using another spelling would be incorrect if the writer did not check the recorded plat for the spelling used and used what they thought was the proper spelling. Use as recorded only
jud

Right, my point being it is spelled wrong on all subsequent deeds. What if someone were to write a deed that used the correct spelling of Schutz? Is that deed now in need of correcting?

Stephen

No. Rewriting descriptions often creates problems and something gets changed almost always, avoid rewriting descriptions or using rewritten descriptions without checking the original. I will not provide a metes and bounds description when a lot and block description can be used, if adjusting an ownership line which does not move the underlying lot line, I write it with the platted lots being the controlling factor. Today we only use Lot numbers and no longer use block numbers for subdivisions, still plenty of the old around with both.
jud

common in my world would be:

Lot 17, Schutz Subdivision, book and page etc. (also known as Lot 17 of the Shultz Subdivision as recorded in Deed Book 13, Page ....)

Correct name first, goofs after.

>"Lot 17 of the Shultz Subdivision as recorded in Plat Book 13, Page ...."

Lot 17 of the [Shutz] Subdivision as recorded in Plat Book 13, Page ...."

JBS

I agree completely, but now we're changing legal descriptions.

Stephen

I agree completely, but now we're changing legal descriptions.

Stephen

Also...

Another point I have been wanting to make: I posted a question a couple of years back which was to the effect, "why exactly do we write legal descriptions?" What is the purpose of putting them on our surveys? There were a few interesting replies, but no one really gave a definitive answer. I should note that it is common in some areas to always put a legal description on a survey map, uncommon in others. Around here in Mobile, Alabama, it is very common to put the legal description on the survey. I don't see any point in it, but it is common here. Space permitting, I put an as-surveyed description, that I simply call the "survey description". Based on last weeks conversation, I'm wondering if I should.

Farris Cadle wrote a very interesting short essay recently. I can't find it nor can I remember which publication I saw it in. But I will paraphrase some of what he said. It dealt witht the origin and purpose of the legal description. He wrote that based on his own research he concluded that legal descriptions came about in colonial days as a short-hand notation of a survey map. Back in horse and buggy days, when copies of anything were hard to come by, and the courthouse was as much as a day's ride away, the legal description was come up with as a way for landowners to alleviate the time and expense of traveling to the courthouse and or having a copy made of a survey plat. In other words, it was just a convenient substitute for the survey map. The survey map came first, and was the gold standard. Interesting point, no?

Stephen

> I agree completely, but now we're changing legal descriptions.
>
> Stephen

Acknowledging a scrivener's error is not the same as "changing" a description.

JBS

Also...

>Space permitting, I put an as-surveyed description, that I simply call the "survey description". Based on last weeks conversation, I'm wondering if I should.
>
>The survey map came first, and was the gold standard. Interesting point, no?
>

Yes. Interesting possibility. Never heard it before. I'd be interested in reading the article, if you can find a copy.

I, too have come to a new understanding of the negative impact a "survey description" can have on title to property. As a surveyor, I've got no problem understanding another surveyor's intent in preparing them. The problem doesn't show up until a title person, a lawyer,or a judge looks at it. They see a completely different piece of property. They see an illegally reformed description.

JBS

Also...

> > The problem doesn't show up until a title person, a lawyer,or a judge looks at it. They see a completely different piece of property. They see an illegally reformed description.
>
> JBS

Yes, I'm starting to see that that may be the case. I just am trying to understand if it is illegal, and if so, why, and if so, should it be.

I do see your and others' point, that one shouldn't try to replace an existing description. But.... I can't keep myself from wanting to find a logical way to not have to continue to use descriptions that are less useful than the one from my survey. The one from my survey isn't perfect, but it's better than the one on record.

More to be said on this, maybe.

Stephen

Also...

And I'll find that article.

Stephen

Also...

> I do see your and others' point, that one shouldn't try to replace an existing description. But.... I can't keep myself from wanting to find a logical way to not have to continue to use descriptions that are less useful than the one from my survey. The one from my survey isn't perfect, but it's better than the one on record.

I can definitely relate to your struggle. As surveyor, we want to naturally "fix" the problems with the record description by making it "better." The whole problem with that isn't what we can do that could possibly "help." It's a matter that we simply don't have any "authority" to change, alter, or correct what we deem to be inadequate language that the parties used to describe their contractual agreement. Even a judge can't just change the wording because he thinks it could be stated better another way. What makes surveyors think they can do it?

Although we'd all like to see perfection in the title record, it just simply doesn't matter. As long as the description is sufficient to identify the parcel being conveyed (not it's size, shape, or location; just "which" parcel), and the nature of the estate being conveyed (whether fee title or easement), the deed is sufficient.

What we surveyors do have authority over is our survey record. That's a record kept separate from the title record. It's a record where surveyors can perpetuate the evidence of the location of boundaries and the monuments which control them. We have lots of responsibility when it comes to keeping and housing the extrinsic evidence used to prove boundary locations. That can easily be done graphically on a map, while certifying to the subject parcels identified in the public record as: ...

JBS

P.S. Here's a quotation from an unpublished opinion from the CA Court of Appeal in
Ponter v. Vintners' Lodge Sonoma LP, No. A114554 (Cal.App. Dist.1 09/19/2007)

>Civil Code section 3399 provides that a written contract may be revised when through a mutual mistake of the parties the written contract does not truly express the intention of the parties.*fn3 (Martinelli v. Gabriel (1951) 103 Cal.App.2d 818, 823.) "A mistake by the scrivener or draftsman in reducing the intent of the parties to writing is ground for reformation. . . . [¶] . . . [¶] In order to reform a written instrument the plaintiff must prove the mutual mistake by clear and convincing evidence [at trial]." (California Pac. Title Co. v. Moore (1964) 229 Cal.App.2d 114, 116-117.) In Martinelli, the Court of Appeal affirmed the trial court's reformation of a deed based on the mutual mistake of the contracting parties. (Martinelli, at pp. 823-824.) Specifically, the sellers sold a portion of several adjoining lots to the buyers, and as sellers contended, the parties went out to the property prior to sale and agreed upon the boundaries as marked by a fence, an oak tree, and a cabin. (Id. at pp. 820-821.) The sellers then hired an engineer to make a survey and prepare the description for the deed. (Id. at p. 821.) Over two years later, after a fire destroyed part of the property and buyers wanted to rebuild, the buyers discovered that the deed described their lot as extending beyond the fenced boundary. (Id. at p. 820.) Sellers testified the deed's description did not conform to the parties' understanding of the boundaries at the time of the sale, and the engineer also testified he had erred in calculating the lot dimensions in the deed. (Id. at pp. 820-822.) The buyer denied he ever agreed to the physical boundary markers and instead claimed he relied exclusively on the prepared plat plan. (Id. at p. 823.) The court found the deed was not in accordance with the parties' original understanding of the boundary lines, and granted reformation. (Id. at pp. 823-824.)

What I find most interesting in Ponter is that the surveyor who made the mistake, discovered the mistake, and testified about his mistake, couldn't just reform his own description.

No You're Not

This example does not parallel the previous discussion at all. In the previous one we were discussing changing the terms describing the boundaries. In this one you are merely correcting a typo.

If you want to draw some sort of fine line parallel, I'm sure you can do better than this.

No You're Not

> If you want to draw some sort of fine line parallel, I'm sure you can do better than this.

OK, I'll try.

How's this:

_____________________________

_____________________________

😉

Stephen