I almost hijacked Larry P’s post of today, but this is a slightly different situation.
I was at the County Clerk's Office searching for adjoiner deeds for a new job. One of the adjoiner lots I found, about 10 wooded acres in a suburban area along a stream, was a transfer from a national bird society to a local bird society. Page 1 of the deed says see attached Schedule A for the description. Page 2 contains the usual signatures and notary information. There is no page 3. No Schedule A. What was transferred?
The assessor’s records show that the land was transferred and references this incomplete deed. The deed into the national association, this grantor, is OK.
I asked an old time title examiner standing next to me “what happens in this case?” His reply: “Son of a B*tch!” He first noted that the customary title company stamp was missing; no one to blame there. Then he said to see if I can track down the notary, or preparing attorney. His last comment: “That is why you get title insurance.”
In thinking about it, the original deed probably had the Schedule A and the County probably did not include it when the document was copied for recording.
Or perhaps it was missing from the beginning….
What have you seen in this situation? What happens?
It's like the title guy stated, you start searching for the original document. The recorded document is a copy or transcription of the original. Perhaps one of the parties (preferably both), or the attorneys, or... might have the original in their possession. The document calls for an attachment which is missing. The patent ambiguity can open the document to extrinsic evidence to fill the void (and prevent a void).
The courts are pretty reluctant to simply throw out the deed without any attempt to validate it.
JBS
'course if all else fails and you DO make a claim on the title insurance, they'll say they only insured what's described in the deed, which is nothing, so they're liable for nothing.
Once upon a time we went to cut a house and about five acres out of an 80. The client explained that the 80 had been split into three very oddly shaped tracts many years earlier. Eventually, one person all three. That 90+ fellow sold it to him. We discovered that one of the three tracts had been left off the deed, mortgage and related documents. The way things worked out, the second description finished near the bottom of the first page of the deed, followed by "AND", but no third description on a following page. Two lawyers, the title company, the real estate office, the seller and the buyer did not catch this. Everone was in a hurry to close because the old boy was about to kick the bucket. Fortunately, he survived, because it was well over six months later when we discovered the problem. This truly was a problem for us as the divide line between two of the tracts (including the missing one) ran through the house we were to separate.
I have never encountered the situation described above with no actual property description included with the deed.
That's a very interesting situation and I think JBS hit the probable answer right on the head.
I also find it amazing that there was "an old time title guy" around. I haven't found one of them in a long, long time. I wish more of them were still in the business as opposed to the title company mills that are here today.
Jeff
In its present recorded form it's not a valid conveyance against third party BFP's. But if a schedule A can be found then the conveyance is valid between the parties. If it is filed before a third party BFP files a deed for the same area, then it will be valid against all subsequent third party BFP's.
In NYC it's all on the net, from the microfiche files.
Sounds like a page got stuck with the one in front when it went into the machine.
As JBS stated, you need to try and find the originals, whether it be in the files of the title company, the attorneys involved, or the grantor or the grantee.
Good point, Duane. Right on the money.
JBS
Another possibility is to research all conveyances recorded THAT DAY. Might be mis-filed with another conveyance.
> Another possibility is to research all conveyances recorded THAT DAY. Might be mis-filed with another conveyance.
Good point, Cliff. Conveyances are often accompanied by a trust deed or a release which is typically filed concurrent with the deed. You may be able to find the full description by looking at the document entered just before or after the conveyance.
JBS
