Jefro has 20 acres he bought offa Bob Bob Roberts about a 10 years ago. He walks over the property with Rufus who comes with the intent to buy half. These are good old boys, one livin' on a trailer house and chicken shed po'farm and the other wanting one just like it. That's the American Dream to a ditch digger, own land and stay dry when it rains and gro-ur-own chickens and tomaters and potaters and mash and such, at least to some Bobs in Katchachicken County.
So Jefro and Rufus arrange to have a neighborhood party and invite everyone around and about to a chicken roast at Jefro's place, a celebration.
Now when you get a big group of people together, it takes a coupla hours of bull-roarin' and sippin' and rippin' to make certain that everyone is fully drunk enough to start the public ceremony. So, a solemnity falls over this community assembladge of citizens in Katchachicken County, about a 2 hour hike SEerly along Possumkill road from the county courthouse in Polteryville.
So Jefro says, "This here fence post is what I bought to offa Bob Bob Roberts. And the fence runs north to my NE corner and I'm keepin everything from this here fence over to where I'm a sellin the rest to you, Rufus. Now, foller me and we'll go the first new land mark markin' Rufus's land that I'm a sellin' to him."
So they all proceed to walk down to the drive way to Jefros place and then down along Possumkill road to where Jefro stops and they all refresh and recongregate and organize the roadkill found along the way and Jefro says. "So now this here is half what I got 'cause Rufus an me stepped it out half ways. So we need to set the new fence post up on the bank of the road. Anybody got a pocket shovel handy??" About seven are produced. No self-respecting ditch digger would leave home without at least one.
"Ok, Rufus, you dig the post hole." Rufus does so. Some Bob said they should break a jug on the spot then pile stones on it.
So Jefro says, "Anybody got an empty jug?" Three are quickly ripped dry and offered and one is selected. Jefro hands the jug to Rufus and Rufus throws the jug into the hole and breaks it. Some Bob grabs a rotted off half post and Rufus Bob sets it in the hole. Several Bobs scavenge a dozen or so stones to pile around it.
(Jefro) "Ok, the line of what I'm a keepin' on my side with 10 acres and a sellin' to Rufus here on his side with 10 acres goes this-a-way to the road up to my fence half way from my other two fence posts I got from Bob Bob Roberts, just like me an Rufus stepped it off." They all proceed to said point and set another post in the other fence, and they add another jug and a few more stones.
"Now, Rufus, I agree to sell you all that Bob Bob Roberts sold me on that side of our new corners we set here today for 20 bushels of corn, 3 first pik fightin' roosters from your herd and a sack of spuds and a sack of beans, all each year for each of the next ten years." Many Bobs comment to each other how that seems a fair price in todays market in Katchachicken County for 10 acres of raw po-farm acreage.
(Rufus) "Agreed! Now let's go eat dem chickens."
Jefro and Rufus learned from the Katchachicken Kounty Assessor that they needed to get a deed form and Jefro fills in the blanks for date and grantor and grantee then in the blank for 'described as follows' writes, "The west half of the 20 acres sold to me by Bob Bob Roberts in nineteen and ninety." and the tax maps are updated with the new line added with new parcel numbers and labeled 10 acres each for tax purposes.
Three years pass with peace and harmony prevailing between Jefro and Rufus, then Jefro passes and wills the po-farm to his son who sells it to your client, who want's you to survey it. His deed reads, "The east half of the 20 acres sold to Jefro Bob by Bob Bob Roberts in nineteen and ninety." He tells you he walked over the parcel with Jefro's son and has seen all the fences and monuments so it should be an easy job. Your mission, if you should decide to accept it, is to survey the intended property as described within the four corners of the deed.
Are the "monuments" set by Jefro and Rufus and witnessed by a bunch of Bobs evidence of title??? The deed doesn't say squat about them. What happens if you recognize the public report monuments as controlling then prove 8 acres and 12 acres for the actual parcels by actual measures as thus surveyed?? That clearly is not half in the minds of most laymen right on up to many if not most judges. You calculate both half by distance and half by acreage and both fit each other within hundredths but neither fit worth stink with the "monuments".
Are you going to suggest to your client that he get a boundary line agreement on the monuments and accept 8 acres when he paid for 10?? When the tax maps show 10??? What can or should a surveyor do to try to maintain the existing peace and harmony??
:angel:
The line would be as recognized by the 2 original parties. I would think that a property line agreement would help to clarify the line in the future.
Depends on the state. The property as surveyed holds in GA. There is ample evidence that it was surveyed by the property owners involved. As such, their line as marked is the true line.
(you went to them to find out what was going on as the occupation lines did not match what the deed purported to transfer title of. As such, since there was no clear intent in the deed- was it the eastern half by acreage or eastern half by distance- you are able to accept extrinsic evidence. Maybe the fence post was near the halfway distance across the front. Perhaps they stepped off half the distance. Maybe the assumption that the half meant acreage was the incorrect assumption as the deed does not say any acreage. What if, it being an agrarian society, they meant that the land transfered was half of the useable land? You do not know from the deed so you may talk to the land owners to find out intent. And when you talk to them the truth of the conveyance comes out. The deed was not the conveyance it was the evidence of the conveyance. In this case the conveyance was the walking of the lines which established the 8 acres.)
Yeah, I think the deed description will allow extrinsic evidence, which can bring to light the nature of the meeting of minds and action at the creation of the division. And once the best evidence is determined, a new description giving greater certainty of location could put all questions to rest. Even out west, lots of kitchen table surveys and deeds from the depression era present this same situation. No one had $50 to hire surveyors or attorneys. Dead certainty in the minds of the buyer and seller as to what was being sold with a poor description written by laymen with the best of intent is just as common as feather in a coop.
The original post pretty much described about 60 percent of the work done in my neck of the woods up to the mid 1970's. In most cases the cost of a proper survey was more than the property was worth and not a consideration for the land owners.
In this case the intent was clear, but followed up with an inaccurate legal description. In the legal the key phrase to my eye is 'sold to me by', indicating the transfer of what the original buyer and seller physically walked out.The inclusion of 'more or less' would've cleared it up, showing the area to be approximate. A boundary line agreement would not be the route to go here, as it would only delay the same mess later down the line. A corrected description based on a professional surveyor's opinion at that moment would clear up all ambiguities and possibly leave a clear path for the next surveyor.
Down here livery of seisen is still recognized as primary if both original parties are still living and will either testify or give depositions. If only one is still living, while the testimony has weight it is still considered subjective, especially if the remaining party benefits.
One of the primary concepts in livery of seizen is that even if the parties to the transaction are not available, 7 to ll ditch diggers can give direct testimony as evidence to settle the issue of what was said and agreed. The whole community is witness, and it was the best that could be done when the masses were illiterate. The statute of frauds gave great incentive to anyone having interest in land learning to read and write to protect their investment.
Today fully literate society now finds themselves at the mercy of massive volumes of law which is simply not uniquely interpretable even by the best of lawyers, making them functionally illiterate as to legal details always and perpetually disputable. I can't blame a land owner (and/or) buyer from trying to just get around the costs of surveys and lawyers by getting a deed form from Staples and disposing of his landhold with his own description. If he has only $2 for a form, he sure doesn't have thousands for agencies up front. He needs one way cash flow in and nothing out.
Expect to see increasing incentives for workaround schemes as we enter the hard depression to come in the next year. It will get a whole lot worse before we hit bottom.
