Here's an interesting survey I've got on my desk. At first glance it is pretty straight forward, but the folks involved are bound and determined to make a big deal out of it.
My client purchased (and I quote the deed) the "North 2 acres of the NE/4 of the NE/4 of the SE/4" about 2 years ago for a residential site. This is part of the 10ac. NE/4, NE/4, SE/4.
Although the tract had never before been conveyed, a fence exists at a location that, according to the grantor, marked the 2 acres. Originally one of the family members was going to do something with it and Grandpa marked off 2 acres and a fence was built. This occurred in the late sixties. This "North 2 acres" was formally divided out of the 10 acres for my client in 2013. No survey was performed at the time of the conveyance.
The county's ordinance allows for tracts no smaller than 1 acre. My client says she purchased the 2 acres to divide it into two 1 acre tracts. One to build her residence and the other to sell.
When I actually marked off a 2 acre line on the south side it falls around 10 or 12 feet south of this old fence. The original grantor still retains the 8 acres to the south (there is actually a tad more than 10 acres in the whole tract). He is throwing a fit and insists that he only sold what was north of the fence. He is sure I am somehow in error. His grandfather marked that two acres off and we all know grandpa was never wrong.
He has lawyered up and is proceeding with the opinion he only sold what was north of the fence. My client has a contract pending to sell the remaining 1 acre tract. A tract that might not be worth much if it is indeed less than 1 acre because the county would not allow a building permit. There is earnest money that has changed hands and everybody has immediately retained counsel.
My personal opinion is that since the fence was not mentioned and the conveyance was by area only, my client has a pretty good chance of walking away with 2 acres. But then you never know. The original grantor says that all though the negotiations of the original sale to my client, the fence was viewed and represented as the boundary.
It will be interesting to see how this turns out. Any guesses or opinions?
Only thing I can offer besides a good luck wish, is that I have a couple hooks on the line who are waiting to close on property they are buying. duh - survey it first so you know? ya think.
Another is a divorce settlement on 2 different "estate" 40 acre parcels they want to divide in order to split funds. Zoning is a big issue on 1 of them. Access on both parcels is also big. Could be fun though and I like that stuff.
It's all getting into upper-mid 4 figures real fast if I get all that (please say yes), and none of these people know: 1) what they bought in the first place, 2) what they own now. Maybe the realto.....oh, never mind that dead horse 😉
> Although the tract had never before been conveyed, a fence exists at a location that, according to the grantor, marked the 2 acres. [...] This "North 2 acres" was formally divided out of the 10 acres for my client in 2013. No survey was performed at the time of the conveyance.
>
> The original grantor still retains the 8 acres to the south (there is actually a tad more than 10 acres in the whole tract). He is throwing a fit and insists that he only sold what was north of the fence.
> It will be interesting to see how this turns out. Any guesses or opinions?
Without some reference to the fence in the deed or any document that could be produced to show that the parties agreed that the fence was to be the boundary of the tract subject of their transaction, I'd say that Mr. Grantor is SOL given the language of the deed and the non-existent basis he might claim (under the facts as set forth) for suing for reformation of the deed. Basically, his argument would be "He, I know I said I was intending to convey Ms. Grantee two acres, but I really didn't mean TWO acres."
Ms. Grantee would obviously claim that the "2 acre" element of the description was essential to her use and enjoyment of the property as she contemplated it and, absent any overriding element, I'd think she would prevail.
He said/She said/Witnesses
Fellow had me find the west line of something like the southeast quarter of the northeast quarter of the section. That agreed with what was on his deed. Incredibly, I found stones from roughly 1880-1890 at both ends of the line which simplified my work considerably. We set several bars along the line to simply fence construction in the near future.
Somebody called the owner of the adjoining tract who lived about two hours away. He shows up the very next day and pulls every bar I had set along the line. All heck breaks loose with my client.
Everyone lawyers up and goes to court. The man who sold both tracts to these fellows was subpoenaed. Under oath he explains that when he sold the tract to my client that they had walked together along a fence line and the top of a pond dam and they had agreed that my client was buying whatever was east of that zigzaggy line. They would save the cost of a survey by simply calling that the southeast quarter of the northeast quarter. Fast forward to the judge ruling that was where the property line was despite an improperly written deed. He DID NOT further demand that a survey be conducted and proper deeds written so that this foolishness would not happen again in the future. (Idiot judge) What had really happened was that my client finally saw an aerial view of the section and noticed that he was missing several acres compared to what the County was taxing him for, so he decided to stake his claim to what his deed said and what he was paying taxes on. I don't know if he ever got the County to correct the property line in their records to agree with what the judge had decided.
Your mileage may vary.............
If it goes to court I would put money on her (not more than I could afford to lose of course).
With the general rule being construe against the grantor his only hope is some goofy rule of evidence or procedural flaw...
> If it goes to court I would put money on her (not more than I could afford to lose of course).
> With the general rule being construe against the grantor his only hope is some goofy rule of evidence or procedural flaw...
And since the Grantee is paden's client, I think we can assume that she is both likeable and perfectly persuasive as to all matters at issue.
The basic story of the case is "old guy who owns ten acres of land sells two to a woman and then claims he didn't really sell her two acres". I wouldn't want that end of the argument myself.
I'd guess what's really at issue here is that Mr. Grantor doesn't want to rebuild his fence or wants to rebuild as little of it as possible. That might be the basis for an agreement, i.e. to agree to share the cost of moving the fence.
He said/She said/Witnesses
> Your mileage may vary.............
I know. What to me seems like a slam dunk may not be. If my client actually loses the first suit, I would hope an appeal would be in order.
The sad and honest truth of the matter is it's probably a coin toss. Bsckwoods Main Street Nowhere Oklahoma lawyers are thick as thieves with the judges.
We'll see how it washes..
It's not a slam dunk either way.
In California we have a practical location case with similar circumstances, French v. Brinkman. French was able to convince the court the true intention of the parties was a block wall, not the lot line (the description was a Lot number). They said the parol evidence rule doesn't apply when the Deed doesn't represent the true intention of the parties.
If the grantor is credible the court may rule for the fence. It really depends on what was said and when it was said.
On the side of the grantor...
The Deed reads 2 acres (not 2.000) which could be read as approximate or a designator.
Testimony of the grantor about the fence.
If the parties treated the fence as the boundary then this is evidence of their intentions. Interpretation by the parties after the contract does not violate the parole evidence rule, the courts will look at how the parties operated the contract to aid in interpretation.
On the side of the grantee...
Deeds construed in favor of the grantee.
2 acres needed for split into two 1 acre lots.
No mention of the fence.
The parol evidence rule which excludes discussions and negotiations prior to the written contract.
This is clearly a case which would benefit from mediation. The grantor wants the fence; the grantee wants two acres. Maybe they can be encouraged to see each other's point of view and craft an equitable solution.
He said/She said/Witnesses
A smart judge will write the Judgment as a finding of fact which will make a reverse on appeal very unlikely.
I haven't read much Oklahoma case law so maybe I'm wrong.
> On the side of the grantor...
> The Deed reads 2 acres (not 2.000) which could be read as approximate or a designator.
Except there had been no prior division of the tract. So the phrase "2 acres" did not refer to any prior subdivision.
> Testimony of the grantor about the fence.
Without any supporting documentation, the actual instrument of conveyance would override any claims of the grantor that were inconsistent with those of his grantee.
> If the parties treated the fence as the boundary then this is evidence of their intentions.
Except the conveyance took place TWO years ago. The grantor's remedy is presumably to sue for reformation of the deed and see how far he gets with that.
> Interpretation by the parties after the contract does not violate the parole evidence rule, the courts will look at how the parties operated the contract to aid in interpretation.
I'd think that the brief lapse of time works against all of that. It's not as if the parties have treated that pasture fence as the boundary of the "2 acres" for twenty or fifty years.
> On the side of the grantee...
> Deeds construed in favor of the grantee.
Except there is no ambiguity to be construed. The deed upon its face is clear and unambiguous.
> 2 acres needed for split into two 1 acre lots.
Equity says that the minor gain the grantor would make would be disproportionate to the loss suffered by his grantee in reliance upon his own description of the land conveyed.
> No mention of the fence.
> The parol evidence rule which excludes discussions and negotiations prior to the written contract.
Or, rather, considers the deed as executed and accepted to be the best expression of the intentions of the parties.
> This is clearly a case which would benefit from mediation.
I think the grantor probably just really doesn't want to pay to rebuild the fence. The grantee could offer and could end up with a better fence, to boot.
It's 2000 fricken 15
Why is creating a tract without requiring a survey still even an option?!?!? :-S
That should be priority #1 for your state association....
It's 2000 fricken 15
Q. That was Rufus Hicks? A. Yes; I sold to him, and we didn't want to get the surveyor out there, and just got a tapeline and measured it off ourselves, 330 and 660 feet, and he wanted to start from the fence line and I wanted to start from the middle of the road, and we argued about it, and he said he wouldn't have any room there... ."
Lake v. Crosser, 216 P. 2d 583 - Okla: Supreme Court 1950
It's 2000 fricken 15
> Why is creating a tract without requiring a survey still even an option?!?!? :-S
>
> That should be priority #1 for your state association....
Well, let's not get carried away. This is Oklahoma and chances are the PK nails out in the county road wouldn't be there two years later anyway. :>
It's 2000 fricken 15
> Well, let's not get carried away. This is Oklahoma and chances are the PK nails out in the county road wouldn't be there two years later anyway. :>
No joke.
Being the NE/4 of the NE/4 of the SE/4, that makes the center of section a key point in your resolution of the north line. I don't suppose there could be an alternate point of local control for that 10 feet so north of the one you are using? And are you using a quarter corner that is halfway between the section corners? I'm sure you have already considered these things......but.....somebody has got to say it.
> Although the tract had never before been conveyed
I am not afraid of fences/occupation, however, the fence might have been 2 acres in the grantor's and heirs eyes for a bazillion years, but what was the grantees impression?
From your post I would say she thought she was getting two acres and hasn't been there long enough to acquiesce to the fence. If she was sold on he fence why did she hire you?
Steve
2 Acres Out Of An Aliquot Description Is 2 Acres
The Grantor would not be claiming to the fence were the 2 acre line North of the fence.
The words of the deed matter in either case.
Paul in PA
Well, all of the evidentiary rules are for the purpose of determining intent of the parties. And, the consummation of the bargain is the deed, so that it usually extinguishes any contrary intentions shown in purchase agreements (but not always). But, the intent of the deed itself has to be interpreted in light of the circumstances and the parties are presumed to take title based on a view of the premises, which is what gives the property markers high standing. A survey doesn't have to be done by a surveyor to be a survey for this purpose. It can be done by the parties or grandpa.
The distinction between patent and latent ambiguity, and restrictions on testimony, have largely given way to courts allowing testimony about deeds in almost all cases for almost any reason. The problem is that if the Trial court refuses testimony, and that testimony should have been allowed according to an appeals court, then the case is automatically overturned. On the other hand, if the Trial court allows testimony that should not have been allowed according to the appeals court, then further review must be taken to determine if the case can stand in spite of that improper testimony. The Trial judge ruling just has a better chances of standing if they simply let in all testimony. And they don't like to be over ruled.
I think the grantor has a pretty good court case. But, as a surveyor, I would have to show the line as you do. In the face of conflicting testimony, I think the surveyor has to go with an interpretation that survives if no testimony were available.
That doesn't mean you are wrong if the court rules otherwise. The court has a thorough process, with all kinds of rules, for exam and cross exam, which results in the best situation to determine credibility of witnesses (by Judge or Jury). Along with the Judicial power to consider equitable matters.
I think I would chalk up another for "buyer beware".
"sure there's 2 acres between the fence and the north line; grandpa laid it out himself"
"okay, I'll take it and save myself the survey cost until I'm ready to split it"
If everyone following these thoughts would just send me a nickel, I'd never need to work again.
> Well, all of the evidentiary rules are for the purpose of determining intent of the parties. And, the consummation of the bargain is the deed, so that it usually extinguishes any contrary intentions shown in purchase agreements (but not always). But, the intent of the deed itself has to be interpreted in light of the circumstances and the parties are presumed to take title based on a view of the premises, which is what gives the property markers high standing. A survey doesn't have to be done by a surveyor to be a survey for this purpose. It can be done by the parties or grandpa.
Isn't the insurmountable problem that the Grantor would have is that the deed is clear and unambiguous and so does not require any extrinsic evidence for its interpretation, so the Grantor's recourse would be to sue to reform the deed on the basis of the claim that he did not intend to actually convey 2 acres of land to Ms. Grantee.
With Ms. Grantee testifying that at all times the discussion was about buying 2 acres of land and her intended use of the land in fact requiring 2 acres, what could Mr. Grantor offer that would beat that?
As a practical matter, I'd think it would be much cheaper for Mr. Grantor to just move the fence than it would be to pursue a lawsuit he's unlikely to win.
> As a practical matter, I'd think it would be much cheaper for Mr. Grantor to just move the fence than it would be to pursue a lawsuit he's unlikely to win.
If only people were that rational.
