> Expert measurers will never understand the concept!
Keith, I've decided to sell the lot that your house is on. Would you please post a legal description to facilitate the transaction? :>
No further comment necessary!
My opinion is that the east 50' of Lot 3 is just what it says, measured from the monuments set as shown on the plat. A person can sell what he doesn't own. It happens all the time and this would be a good example. He may not be able to furnish title, but he can sell it. I don't think it is the surveyor's job to determine what a judge might say.
> My opinion is that the east 50' of Lot 3 is just what it says, measured from the monuments set as shown on the plat.
:good:
Selling illegally not allowed
Well, "sell" means the transfer of property by sale. If it doesn't transfer then it hasn't been sold.
A "sale" is a transfer of property or title for a price. It is a contract and one of the requirements for a valid contract is something legally capable of being transferred.
I agree with you on the deed line.
Selling illegally not allowed
I didn't say anything about selling illegally. Let’s suppose Farmer Brown owns a 100-acre tract, with a county road running along the south side and the east side. The old road originally had a 90º turn at his southeast corner. The county comes along and makes a long sweeping curve in place of the 90º curve and Farmer Brown is left with a triangular tract of land on the other side of the road. Farmer Brown gives a deed to this tract to the owner on the other side of the road, but the owner never records the deed. Thirty years later Farmer Brown decides to sell his farm and doesn't even think about the previous transfer, so his attorney uses his old description for the sale. The deed is prepared, Farmer Brown receives his money, a title check is done, and the deed is recorded.
Hasn't Farmer Brown sold something he doesn't own?
Selling illegally not allowed
No. Assuming all the recording statutes elements come out in favor of the second deed holder, the title will transfer to them. But not by way of sale, rather by way of the first grantee relinquishing rights. The transfer comes from the first grantee to the second grantee, not from the grantor by way of sale to the second grantee.
Selling illegally not allowed
> Hasn't Farmer Brown sold something he doesn't own?
The context of this question is purely a title question, therefore, the answer is found in Title Law which is found in statute. Each state is different, so the answer to the question will be different and the arguments made for or against the subsequent purchaser's claim of ownership to the triangle. There is no doubt that whatever quality of title Brown held is what was conveyed.
There are a number of statutes designed to deal with this type of conflict. States have differing requirements on recording statutes, so the application of that remedy will depend upon whether the state is a "race", "race-notice" or "notice" state. Other remedies are found in Adverse Possession laws (a title law) which also differ between states. The owner of the triangular tract has color of title and possession. Another form of remedy may come from the Marketable Record Title Act, if the state has one (not all do and those that do differ slightly). Another remedy is found in the ability of Brown to reform the deed to fix the mistake; he'll likely still need to provide compensation to prevent a breach of warrant claim for damages because of the loss. All of these various remedies are ways the law allows for the chain of title to be repaired without having to go to court.
So, no. Brown didn't sell what he didn't own. The question is, "Under these circumstances, what did Brown own that he could sell?"
JBS
Selling illegally not allowed
Why doesn't anyone address the fact that the east line of the tract was most likely the section line? It is conceivable that maybe it wasn't, but the persumption everyone is making is that the original subdivision plat called for the section line. Now in the seniority of calls, what is the senior call: a senior line, or the artificial monuments. My understanding is that the section line is given the same respect as "natural monuments" in the infamous "seniority of calls". So, if that is correct, the lot line is the section line, and the "original" property pins are outside the lot. The dimension of 100' gives way to the call to the senior line. If the new description called for the east half of the lot, I would go from the senior line and divide the lot in half. If the new description calls for the east 50' I would go from the senior line 50' perpendicular to the senior line.
As I said before, perhaps the original subdivider subdivided his property and owned both sides of the section line, and his intent was to go 300' irrespective of the location of the section line. I would need to see the subdivision plat to see if that was the intent, and I would have to see if the owner owned both sides of the section line. That's a title issue, if he did own both sides, he has every right to add the other side of the section line to his subdivision. If he does not own the other side of the section line, he is subdividing his property. The presumption, again, would be that the east edge of the lot is the east boundary of his parent property.
I think you guys might be getting too carried away into the title/boundary/"you-can't-sell-what-you-don't-own" debate to see the actual simple issue at hand. But maybe not. Maybe it is too complicated for me. I know I have been incorrect many times before and may be once again.
Selling illegally not allowed
> Why doesn't anyone address the fact that the east line of the tract was most likely the section line? It is conceivable that maybe it wasn't, but the persumption everyone is making is that the original subdivision plat called for the section line. Now in the seniority of calls, what is the senior call: a senior line, or the artificial monuments. My understanding is that the section line is given the same respect as "natural monuments" in the infamous "seniority of calls". So, if that is correct, the lot line is the section line, and the "original" property pins are outside the lot. The dimension of 100' gives way to the call to the senior line. If the new description called for the east half of the lot, I would go from the senior line and divide the lot in half. If the new description calls for the east 50' I would go from the senior line 50' perpendicular to the senior line.
>
> As I said before, perhaps the original subdivider subdivided his property and owned both sides of the section line, and his intent was to go 300' irrespective of the location of the section line. I would need to see the subdivision plat to see if that was the intent, and I would have to see if the owner owned both sides of the section line. That's a title issue, if he did own both sides, he has every right to add the other side of the section line to his subdivision. If he does not own the other side of the section line, he is subdividing his property. The presumption, again, would be that the east edge of the lot is the east boundary of his parent property.
>
> I think you guys might be getting too carried away into the title/boundary/"you-can't-sell-what-you-don't-own" debate to see the actual simple issue at hand. But maybe not. Maybe it is too complicated for me. I know I have been incorrect many times before and may be once again.
Tom: the original Hypothetical was rather simple:
It says the East 50 feet of LOT 3. That is very clear and concise. Find the East 50 feet of LOT 3 on the Plat and on the Ground. Mark it off. Done deal!
Now, the Owners really just want to know what They Own... so you look at the paper/title document overlap, apply "did not own it, can't sell it" and you have the simple result that was probably the intended answer... Mark the intersecting line and show the area conveyed.
No other documents/evidence were provided so you need to stay with the fact set as presented.
If it was an Essay type question it would probably be fun to show how smart/informed you are and elaborate on the many variables that you see based on the assumption of other possible facts.
Now, there are Lots of side issues, many variables, discussed ad nauseum above. Most/Many depend on Local Laws/Regulations/Case Law.
I Can Not in good faith ascribe the implication that the Seller intended to sell "the East 50 feet of what I Own". We need to look at what the question is and answer it clearly but still inform the client of possible problems.
Maybe I should again review the original question... but I thought I did that a gazillion times.
Selling illegally not allowed
> Tom: the original Hypothetical was rather simple:
>
> The plat/deed says East 50 feet of a LOT. That is very clear and concise. Find the East 50 feet on the Plat and on the Ground. Mark it off. Done deal!
>
> Now, the Owners really just want to know what They Own... so you look at the paper/title document overlap, apply "did not own it, can't sell it" and you have the simple result that was probably the intended answer.
> No other documents/evidence was provided so you need to stay with the fact set as presented.
> If it was an Essay type question it would probably be fun to show how smart/informed you are and elaborate on the many variables that you see based on the assumption of other possible facts.
>
> Now, there are Lots of side issues, many variables, discussed ad nauseum above. Most/Many depend on Local Laws/Regulations/Case Law.
>
> I Can Not in good faith ascribe the implication that the Seller intended to sell "the East 50 feet of what I Own". We need to look at what the question is and answer it clearly but still inform the client of possible problems.
>
> Maybe I should again review the original question... but I thought I did that a gazillion times.
Peter, I think you are missing my point (I may not be wording it well).
If the original plat shows the east line of the lot (not the ownership per se) being one and the same as the section line, and evidence such as metes-and-bounds calls and artificial monuments as also describing the east line, what you have here is an ambiguity where exactly the east line of the lot is. Since the section line is not in the same place as the bearings and distances or the artificial monuments, we need to look at the higher order of hierarchy in the acceptance of calls.
If you are simply finding the "east 50 feet of the Plat on the Ground"; I am saying that, that is the 50' east of the section-line which is the higher-order call in the case of the ambiguity.
I am, of course presuming that there is an ambiguity and that the original subdivision plat is showing the section line as being one and the same as the lot line. That is an important factor.
If, in fact, the section line is drawn there just to throw us off, and the intent is, indeed, meant for the lot to cross the section line, then absolutely go from the artificial monuments 50 feet east. And the grantee would receive 50' of property on two sides of a section line. There is no problem in that case. There is not a you-can't-sell-what-you-don't-own issue in that case because the section line isn't the line of ownership nor is it one and the same as the lot line.
Selling illegally not allowed
> I am, of course presuming that there is an ambiguity and that the original subdivision plat is showing the section line as being one and the same as the lot line. That is an important factor.
>
> If, in fact, the section line is drawn there just to throw us off, and the intent is, indeed, meant for the lot to cross the section line, then absolutely go from the artificial monuments 50 feet east. And the grantee would receive 50' of property on two sides of a section line. There is no problem in that case. There is not a you-can't-sell-what-you-don't-own issue in that case because the section line isn't the line of ownership nor is it one and the same as the lot line.
OK, I can go with that: but the question stated "A subdivider erroneously set his exterior tract boundaries beyond a monumented senior line..." so I read that as the Section line was either not shown, or it was shown as the subdivision boundary.
In either case I find "East 50 feet of Lot 3" is clear and concise, and see no indication of intent to convey something different.
Much of an exam is reading the question... many of us fail at that and hence give the wrong answer (or the Exam is ambiguous).
Yes, if the original subdivision Plat showed the Section line passing thru Lot 3, then the full 50 feet would pass... but only if the subdivider owned that land. (or consider "after acquired title" if he owned it at some later time... but that was not in the fact set 😉 ).
Yes, there are many missing elements and much needed research to finish the job and inform the client... but this was presented as a simple exam prep question.
PS: I believe the "wrong answer" intended would be to measure 50 feet from the Section line...
Selling illegally not allowed
> OK, I can go with that: but the question stated "A subdivider erroneously set his exterior tract boundaries beyond a monumented senior line..." so I read that as the Section line was either not shown, or it was shown as the subdivision boundary.
I read it the same way about the section line was intended to be the subdivision boundary.
I am thinking we won't agree.....but just to the above point: if the subdivider "erroneously" set the corner beyond the monumented senior line, I would suggest that the intent of the subdivision was to end at the senior line. Again-making that the higher-order call. It is my opinion that the answer to the test question would be 50' from the section line.
This is an ambiguous situation. If the grantor wanted to hold on to 50' of lot, it would have been better to transfer the lot and except out the west 50'. A good lesson for the art of writing legal descriptions that appropriately show the intent. Another thing to consider is that similar ambiguous situations tend to sway toward the grantee getting the benefit of the ambiguity. Again, I am not talking about per se "title", but only about interpretation of the deed.
Selling illegally not allowed
I do understand what you are saying, but you would still be incorrect. The intent is taken from clear wording of the deed in this case. What the parties actually did (objective intent) controls over what they were trying to do (subjective intent). Intent is interpreted from the deed, not what the parties generally intended or may have intended.
Here, the lots were clearly drawn and monumented. A deed was then written with reference soley to those lots. The monuments creating those lots are the original and controlling evidence of any conveyance referencing them. This is true for location purposes even if the entire subdivision is on someone elses property, or it falls 100 feet short of the property line leaving a large strip in ownership of the original subdivider.
Even if the 3 lot subdivision had been labeled directly on the east line with the words "section line" or "original property line" or anything else of that nature, the line per the deed language presented will be between the monuments set to create the subdivision. This is because what the parties "plan" to do is superceded by what they "actually" do. What did they "do"? to delineate the limits of lot 3. They set monuments. What were they "trying to do"?, end lot 3 at the edge of current ownership; but they failed to actually do that.
One of the keys to intent of descriptions is they are interpreted in light of the circumstances at the time of the conveyance and with a view of the premises. In this question, at the time of conveyance, even if the east line of lot 3 were labelled on the map as "section line", the lot line in question is only marked by the subdivision map markers. There is no evidence they knew of any other markings or possible locations for either the section line or a different lot 3 location.
To say this another way; There is absolutely no ambiguity in the wording of the deed even coupled with the extrinsic evidence as to what the agreement was at the time of its execution. It is clearly worded and clearly marked on the ground.
The only way you find ambiguity here is to go into the heads of the parties involved and try to guess what they were thinking. In that case we can all agree they both wanted the line to be on the section line and not to have any future problems.
The question is not about the heiarchy or order of the rules of construction; on the contrary it is about knowing when they should or should not be resorted to at all.
Selling illegally not allowed
Hmmm....everyone says I'm wrong, and I must be. (if it looks like a duck....) I will try to reread some of the posts here from a renewed perspective.
I just don't get it. The subdivision ends at the section line, the lot ends at the subdivision line. The section line is clearly marked. How can you possibly say there is no ambiguity when the artificial monuments and/or the distance do not end at the subdivision line? Why isn't the intent and the call the the section line of any value or weight? Dammit! I'm gonna go move those two monuments to where they should be.
It sounds like I am wrong. I will try to see all you guy's logic more clearly. But I'm really struggling with this opinion.
Selling illegally not allowed
Tom, I think you are getting confused between the boundary location (boundary law) and title law.
As you re-read the posts be sure and review the distinction between title law and boundary law.
There also is a difference depending on if the boundary(s) have been previously established on the ground (you will be performing a resurvey) and if they have never been established on the ground (you will be doing so for the first time).
Selling illegally not allowed
> Hmmm....everyone says I'm wrong, and I must be. (if it looks like a duck....) I will try to reread some of the posts here from a renewed perspective.
> ...
> It sounds like I am wrong. I will try to see all you guy's logic more clearly. But I'm really struggling with this opinion.
Don't be so quick to give up, Tom. You are not necessarily wrong in your thought process. I clearly see where you're coming from and don't see this nearly as "textbook" as Duane would like to view it.
Duane is correct from a purely textbook example where the monuments control over the dimensions shown on the plat (application of the rules of construction). That only takes into account that the plat references the monuments and does not make reference to the section line.
However... as you've correctly pointed out, the expressed terms on the map can easily overcome the monuments on the ground when the section line is clearly stated (graphically and/or in the description) as controlling the boundary. When clearly expressed on the plat, the east boundary of Lot 3 IS the section line. The inaccuracies related to setting the monuments over the line cannot frustrate the fact that the east boundary of the Lot IS, EQUALS, THE SAME AS the section line as clearly expressed.
If that is the case (the test question is silent on the issue), then the east 50 feet of Lot 3 would be measured from the section line, not the monuments.
Olson v Jude (MT 2003) is an excellent example of just such a case. In Olson, the court closed a 108-foot gap because of the clearly expressed language on the plat that the section line was the intended exterior subdivision boundary. Olson flies in the face of the textbook "gap left in the original subdivider" claim so frequently raised. The courts abhor gaps and overlaps and will hold an expressed intent over a persons objective intent any time it resolves a problem.
If you find that the application of a legal principle creates a problem, then there's likely a more appropriate legal principle to apply. The principles are designed to resolve problems, not create them.
JBS
Selling illegally not allowed
Brian,
Perhaps you're right. However, I don't think I was addressing title as much as the platted lot corner. ie: where the corner of the platted lot 3 falls, and not who owns it. I'm not sure what exactly you're reading into what I typed above.
Selling illegally not allowed
John,
Thank you. I will read the case law you are referencing. I am glad that at least someone has addressed what I have been trying to say. Most of the arguments appeared to not understand my point. I don't mind a good argument, and being proven wrong, but I get frustrated when the points I make appear to be directly ignored. (Not purposely ignored, but just not addressed.)
By the way, I would argue that, although the test question is silent on the issue, I would tend to presume that the intent of the plat (which we don't see) is calling to the section line or implied to be calling to the section line. If that is not the case, then, of course, the property line might not be truncated at all, and there would be no issue.
Selling illegally not allowed
That response reads as if a call to a senior line means that the junior line "IS, EQUALS, [IS] THE SAME AS" the senior line.
Interesting concept. Sounds like a good idea.