Bought the farm - Tom
:good:
Outstanding Idea Paul. I totally concur.
Find, Recognize and mark your boundaries. Speak with your adjoiners and walk the lines with them. defend your property rights for your dream farm.
Go plant something and relax sounds like good times ahead.
Cheers
Bought the farm - Tom
:good: :good: :good:
The best means of stability for any boundary is a set of well-marked solid monuments that not only you recognize as marking the boundary, but your neighbors do as well. A good sign with a finger pointing in the direction of the monument might even lead the next surveyor to find and hold the monument as controlling even though it's not called for in the record. Just make sure to put some extra flagging on it so the surveyor will be sure to recognize it as a survey marker and not some old goat stake.
JBS
I very much respect your opinions JB but I have to disagree. The title company is insuring the 1. title (who really owns the property) on a 2. parcel of ground, the actual piece of dirt of which the paper describes or as Frank Willis put it, the life sized map. I believe that a more accurate description of that same piece of property is absolutely a better, though never perfect description of that life sized map.
Items 1 and 2 are different. It is their job to say who owns it and a surveyors job on number 2. Where is that ground, how big is it, how long is each line etc, and any well educated title person should be able to recognize the value of insuring a 37 acre recently surveyed and described property versus a 40+ acre property with a title that goes back to Daniel Boone. Daniel Boone died a pauper because of land issues. What I am trying to say is that title and description are not tied so tightly that descriptions can't be changed. Kentucky would be thousands of years in the fixing if descriptions couldn't be updated and I can't accept that. This is what I do for a living. I fix old bad deeds. To say that my professional career with the exception of conveyance plats is all for naught is too hard to swallow.
I completely understand where the title company is coming from but I believe they are wrong. I didn't buy the 40 acres they insured. I bought the 37 acres that was recently surveyed. I am putting that to record.
You can't fix an old bad deed descriptions unless you can find the tract described on the ground, if you can, there is nothing wrong with the document. Maybe it could be better described, but not bad or wrong. Fixing something not broken usually get the opposite result than intended. When I survey, I look at the last deed document and compare it with the first document which created the tract, if intent is different, I find out who and when it was corrupted which is info included in the narrative. Often do not use the latest and greatest description to use as a base for a survey, will use the latest that reflects the original intent.
jud
As much as I respect JB, I believe he would have a different opinion if he were surveying in a colonial system state.
Amen Tommy. A very respectable surveyor may be able to make heads and tails out of an old description and place it on the ground, even though no two surveyors are going to come up with the same answer. Now a modern survey, much like you PLSSers deal with from the get-go are more used to a solid system is something that anyone should be able to put on the ground within reason.
I started this thread with "this is a true story" and I'm going to say it again.
This is a true story. This state was settled by frontiersman and parcels of ground were marked out with a hatchet on trees and claims made. The surveyors were not here first. Lawyers and farmers are still writing legal descriptions. We have a mess to fix and the title companies need to jump on that bandwagon. If Western surveyors don't understand the mess we have, I can believe the title companies don't get it either.
I did a survey recently for 25 acres that had distances rounded to the nearest hundred foot, and bearings were "northwesterly more or less" throughout. That is the stuff I'm trying to correct here.
Would the chain of title be damaged if the survey description refers to the original deed?
A parcel of land situate in ......., being that same parcel of land described in Bk. xx, Page xx in BBBBB Conty Record's Office having a filing date of ............., described as follows:
> As much as I respect JB, I believe he would have a different opinion if he were surveying in a colonial system state.
Or in the Southern Calif area.
> I very much respect your opinions JB but I have to disagree. The title company is insuring the 1. title (who really owns the property) on a 2. parcel of ground, the actual piece of dirt of which the paper describes or as Frank Willis put it, the life sized map. I believe that a more accurate description of that same piece of property is absolutely a better, though never perfect description of that life sized map.
>
Respect duly afforded and mutual given, Tom. Perhaps I haven't been clear. The title company is insuring No. 1 (title), however, they specifically do not insure No. 2 (location, size, shape, or whether the property physically exists at all). That's why they have the standard exceptions in the title policy. Yes, one can get extended coverage insurance which will remove the exceptions, but that just means the title company will require a surveyor to take the fall if there is ever a claim which touches the standard exceptions.
> Items 1 and 2 are different. It is their job to say who owns it and a surveyors job on number 2.
I'm in absolute agreement with you, there. In fact, No. 1 and No. 2 are governed by completely separate bodies of law.
>Where is that ground, how big is it, how long is each line etc, and any well educated title person should be able to recognize the value of insuring a 37 acre recently surveyed and described property versus a 40+ acre property with a title that goes back to Daniel Boone. Daniel Boone died a pauper because of land issues. What I am trying to say is that title and description are not tied so tightly that descriptions can't be changed.
A new description can be written when a parcel is carved out, but an existing description cannot be changed. When Daniel Boone died a pauper, do you think the blame fell on the title profession or on the surveyors? If I remember my history, the arguments were over overlapping boundaries, not title problems with heirs or claimants. He went broke fighting over boundaries.
When a description of a parcel is altered by anyone aside from the original parties, it's called a "reformation." Here's what Kentucky courts have said about reformation:
>>However, Kentucky courts have recognized that it would be inequitable to reform a deed on the ground of mutual mistake between an original grantor and grantee if a subsequent purchaser from the grantee was without notice of the mistake. Althaus v. Bassett, 245 S.W.2d 943, 944-45 (Ky. 1952). See also Swiss Oil Corporation v. Hupp, 232 Ky. 274, 22 S.W.2d 1029, 1031 (1928) ("Conceding, though not determining, that the evidence was sufficient to authorize the reformation contended for as between the parties to the involved transactions, the law seems to be well settled that no reformation may be had to the detriment of intervening rights of third parties....")
Haag v. Wilson, No. 2008-CA-001983-MR (Ky.App. 01/15/2010)
We're not just talking about a difference of opinion between surveyors or between a surveyor and a title company or lender. We're talking about a fundamental legal principle (otherwise known as "the law"). It is against the law to "reform" (change) the description. It's unwise for a number of reasons, foremost being that it blows the chain of title. I used to not hold this belief until I had a judge throw a deed (with a perfectly good "as-surveyed" description) over his shoulder and watch it float to the floor as he exclaimed, "They can't do that! I'm the judge and even I can't do that!" That's when I studied the law on reformation and figured out why.
I understand your frustration with regard to the difficulty of perpetuating survey evidence, but that's not a failure of your laws nor is it a failure of your title records. It is a failure of the surveying profession which has not created or maintained a repository for boundary evidence.
>Kentucky would be thousands of years in the fixing if descriptions couldn't be updated and I can't accept that. This is what I do for a living. I fix old bad deeds. To say that my professional career with the exception of conveyance plats is all for naught is too hard to swallow.
I used to have an "as-surveyed" description on all my surveys, thinking it was my job to "fix" the old descriptions too. Now I just say no and file my survey where the next surveyor can see what I found, what I measured and how I determined the boundaries. If I'm clear enough in my explanation, perhaps they'll choose to follow my footsteps and recover the boundaries where I've documented them instead of relying upon 200-year old evidence set by Daniel Boone.
> I completely understand where the title company is coming from but I believe they are wrong. I didn't buy the 40 acres they insured. I bought the 37 acres that was recently surveyed. I am putting that to record.
The title company isn't wrong; they're bound by the same laws as you and I.
Instead of being frustrated by the system, try working with the society to get a public repository for survey evidence set up so you can perpetuate the evidence where it counts.
JBS
> Would the chain of title be damaged if the survey description refers to the original deed?
>
> A parcel of land situate in ......., being that same parcel of land described in Bk. xx, Page xx in BBBBB Conty Record's Office having a filing date of ............., described as follows:
As long as you include the original description, ver batim., you'd be fine to include it, but, the court's won't recognize the reformed description or give it any credence.
What's happened to deeds around here that have tried that method is that, eventually, the second description gets dropped or (even worse) the original description gets dropped and the chain of title is broken. The only ways to fix the title chain are to either get an affidavit from every adjoining owner or to initiate a quiet title action (against all the neighbors) which they won't appreciate at all.
If the original description is sufficient for the purpose of identifying the parcel, why change it at all? It might make surveyors happy, but it's not worth the downside title problems.
JBS
> As much as I respect JB, I believe he would have a different opinion if he were surveying in a colonial system state.
Sorry, Tommy, I deal with metes/bounds problems a lot more than I deal with rectangles. Those eastern colonists came west and brought along all their problems which were superimposed on our nice, neat little rectangles.
;o)
JBS
> Or in the Southern Calif area.
... where the answer to every problem became a Tract Number. That way you don't have to deal with metes/bounds descriptions at all (good system, actually). Too bad they had to invent a police state to govern the process of converting the descriptions to Tracts.
;o)
JBS
Thanks, JB, you're a great educator.
The chain of title issue seems to fall right in line with the pin cushion debate. On retracement surveys, who are we to say the original surveyor wasn't "good enough"? The first monument is the BEST representation of intent, just like the original description. (Sorry, didn't mean to hijack).
> The chain of title issue seems to fall right in line with the pin cushion debate. On retracement surveys, who are we to say the original surveyor wasn't "good enough"? The first monument is the BEST representation of intent, just like the original description. (Sorry, didn't mean to hijack).
You're spot on, Target. (Maybe I shouldn't have used the Oxford comma)
The original language which the original parties chose to best express their intent on paper, is precisely the same reasoning that the original monuments best express their intent on the ground.
No hijack at all. Spot on "Target."
;o)
JBS
> ...That way you don't have to deal with metes/bounds descriptions at all ...
You are kidding.. If you are not, then you know even less about surveying in Cali Land than I thought.
WOW, What A Disagreement & Nobody Is Holding The Fences
:-$
Paul in PA
> You are kidding.. If you are not, then you know even less about surveying in Cali Land than I thought.
Of course I am, Paul... [sarcasm]You all have subdivision plats, too. They take even longer to get approval.[/sarcasm]
;o)
JBS
Bought the farm>JBS
It is not that difficult to update the description with a surveyors affidavit that the property as described includes the previous property as previously described without gaps or overlaps.
This post has been one of the biggest eye-openers for me in a long time. Thank you for your thorough answers JB. I would love to sit through a seminar on this subject with perhaps a title guy and a surveyor as instructors. I believe the audience participation would be lively.
Bought the farm>JBS
I've never run into an affidavit like that in Kentucky. As you trace deeds back, the description magically changes somewhere along the way most often from splits but occasionally during property transfers, a new plat and legal are prepared. It always warms my heart to see new legals and plats. It warms my heart to see any kind of plat which is fairly rare.
