Hypothetical surveyPosted by bill93 on September 16, 2022 at 7:36 pm
Suppose you are hired to survey 2 acres. Research finds that by 1882 the 40 acres, assumed to be of nominal size, was divided into north-south Lots 80 rods tall by 20, 40, and 20 rods wide. In that year someone sold “Lot 1, except the north 2 acres, containing 8 acres m/l”.
In 1904 a deed was recorded for “the south 8 acres of Lot 1.” A court case in that year about overlapping mortgages declared the plaintiff the owner of “the south 8 acres of Lot 1.”
For well over a century multiple deeds have referred to the “north 2 acres” and the “south 8 acres” of Lot 1 as if they were perfectly sized. To this day I don’t see that aneone has applied actual dimensions.
Of course the dimensions of the 40 won’t be exactly nominal, and occupation is of no help in this case. I’m assuming the east-west dimension would be proportioned to modern measurements.
Would a surveyor make the north part 2.00 acres? Make the south part 8.00 acres? Proportion the north-south dimension?
- 14 Replies
- MemberSeptember 16, 2022 at 8:11 pm
Lot 1 came first and a court has decreed that it gets 8 acres. Sound like the northerly portion gets whatever is leftover in acreage, whether it be more or less than 2 acres.
- MemberSeptember 16, 2022 at 8:58 pm
Hi-staker is correct, the 8 acres is senior, the north left over is whatever is remaining. Still, usually these types of tracts are dependent on ground conditions.
- MemberSeptember 16, 2022 at 9:30 pm
I believe that an argument can be constructed in favor of each of the three possibilities.
But any ambiguous description is going to be construed against the grantor. So if the parent “10 acre” parcel turns out to be more than the nominal 10, the north part will be held to exactly 2 acres, and the south gets the remaining 8+. If the parent parcel is less than 10, the south gets the full 8 acres and the north the remainder.
- MemberSeptember 16, 2022 at 9:32 pm
My original thought is below. Largely book informed, as I haven’t encountered anything like this and don’t really think I would, around here.
As I was typing, however, I don’t see that the original three lots were ever conveyed. If that’s the case, I don’t know that you would need to play with junior/ senior rights. Get with the overall landowner and cut out a ‘true’ 8-acre piece from the parent.
Need to survey the parent tract and I file a map. Probably call it a recombination in my area to reduce the “planning” review.
Thought I read the original division was nominally 10 acres, 20 acres, and 10 acres in a simultaneous conveyance. Subsequent to that, lot #1 (25% of parent) was sold with an exception of 2 acres out of its nominal 10.
If never surveyed and no lines of possession (seems crazy), survey the parent. Determine acreage. Original lots get their due (25%, 50%, and 25%) of whatever there actually is.
Buyer of lot #1 gets their 8 acres. Exception gets whatever is left.
- MemberSeptember 16, 2022 at 9:58 pmIf these were simultaneously created Lots/Parcels, the deed language puts the restriction on the “except the north 2 acres”, which should be held, and anything else would go with the “8 acres, m/l”. How you put pins in the ground and lines on a map would be a function of that deed language subject to some of the answers to questions posed below.How were the lots created?Sequentially?Simultaneoulsy?Is this a PLSS state?Is this an interior section?Is this along the north/west tier of sections of the township?Is Lot 1 one of the original 3 “lots” of 10, 20, 10 acre lots?What original lot numbers go with which original acreage?You didn’t explicitly say, but Lot 1 could be either the 10 or the 20 acre piece, if there was a mistake, typo, misunderstanding, etc.Did 1822 seller ever produce a deed that reflects “Lot 1, except the north 2 acres, containing 8 acres m/l”? (recorded or unrecorded?)Was the 1904 deed recorded before or after the court case?Was the “court case in that year” related to the 1904 deed?Who were the parties to the litigation, and what was being litigated?A “winning plaintiff” would likely indicate the mortgageee (lender) prevailed over a mortgagor (real estate interest owner, or other 3rd party (secured, or otherwise).Most times parties don’t go to court over a mortgage because those are usually pretty air tight, unless there is fraud, mistake, or similar.What is an “overlapping mortgage”, and who are the parties of the mortgage contract?The description of the collateral?Multiple mortgages on the same collateral?A dispute over the seniority of lein holders between 2 parties?
- MemberSeptember 16, 2022 at 10:02 pm
Most of what back chain said I agree with except why is everyone ignoring the original split of 8 acres more or less. The north 2 acres remains whole or remains at 2 acres. The south gets the remainder whether it be more or less.
someone sold “Lot 1, except the north 2 acres, containing 8 acres m/l”.
That was the subdivision of lot 1. It plainly states 2 acres for the north and more or less than 8 acres for the south.
- MemberSeptember 16, 2022 at 10:10 pm
There are a number of things to consider. The original division reserved 2 acres, selling 8 acres more or less. One could argue that 2 was to be held and 8 m/l was an estimate of the remainder being sold.
The transfer first referring to 8 acres cannot overrule whatever the first transfer established.
The court decree was about title, not boundary. One could argue 8 acres was an identification, not a quantity, using whatever words had last been used in the deed..
- MemberSeptember 16, 2022 at 10:22 pm
Occupation is a mess. The 2 acres may or may nor include a large creek on its south. Its east side is near a waterway almost creek that sets crop usage. A road runs through the 2a and a case could be made for acquiescence to the road as ownership boundary since the road was moved in 1949 as the 2a title holder does nothing west of the road. The fence on its north side would probably be held, as I’m reasonably sure there are no monuments for that line.
I find this neighborhood to offer many educational opportunities as absolutely nothing is routine about it..
- MemberSeptember 16, 2022 at 11:19 pm
I believe most Iowa licensed surveyors would hold 2.00 acres based on the facts given. The m/l designation seems to be attached only to the 1882 8 acre deed and not the 2 acres. The court case as you have noted was about deed ownership, not boundary location. I wouldn’t be too bothered by the fact that the m/l wording wasn’t perpetuated in deeds subsequent to the original. The entire lots would probably be proportioned according to government measure unless there is evidence of boundary establishment in other locations which there often is in Iowa. This sounds more real than hypothetical.
- MemberSeptember 16, 2022 at 11:59 pm
I think you need to read it again. These are “2-acre” and “8-acre” divisions of Lot 1.
edit: changing my opinion now. I didn’t know m/l meant more or less.. but here’s what I’d written –
I’ll probably agree with @hi-staker; Lot 1 was sold, presumably by an owner, as “Lot 1, except the north 2 acres, containing 8 acres”. The sale makes the original owner (now owning “2 acres”) junior to the grantee, who, at least from this description, bought 8 acres. Junior can’t take any of the the 8 acres from Senior unless there’s other language or map items in there that supercede area (clarifying an intent other than 8 acres). If this is the case, then what’s left over is of no consequence to senior, IMO.
If he’d subdivided it before selling it’d be a different story.dd
- MemberSeptember 17, 2022 at 4:00 am
This type of problem exists throughout PLSSia. Far too many descriptions were written with no basis in fact evidenced by monuments.
I’ve told this before. We had a north half of the northwest quarter which was more like 86 acres than the standard 80. I think the first deed called for the east 50 acres. The second for the west 30 acres. That left about 6 acres of WHAT THE HECK DO WE DO NOW?
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