Just wondering,
If land was sold and the grantee paid money to the grantor wouldn't that be intent (that something was intended to be conveyed). So since according to the experts this can't be corrected (by affidavit) other than a completely new conveyance, what if the grantor won't do it over (money has cleared the bank).
So the Exhibit A was left out of the recording. So if the grantor didn't convey anything does he get to keep the money. Maybe I should try it some time.
I personally don't like using exhibits attached to conveyances. Better to write it all into the document where it goes. Not that hard these days where almost all is done with computers (instead of printed, fill in the blanks, forms). But that's just how I'd do it, I suppose if you like exhibits attached to the exhibit's then go for it. Cut and Paste can be dangerous also.
What if the wrong exhibit was attached. I worked with a guy years back that owned thousands of acres of mountain land. They sold a couple sections and the descriptions of which sections was wrong (typo). The buyer decided he liked the mistaken section better than the original deal and wouldn't agree that a mistake was made. So other than fight in court the seller just decided to let it go.
It's always amazed me at the sloppy way folks will convey property worth lots of money. Some would take more care counting their change at a fast food store.
Title Insurance?
> >
> So the Exhibit A was left out of the recording. So if the grantor didn't convey anything does he get to keep the money. Maybe I should try it some time.
>
>
A deed is the evidence of a contract to convey something. For a contract to be valid, there must be something of value gained, being a product, service, or other asset, there must be consideration, money or something given for the service or asset received, and there must be a meeting of the minds.
With a deed, if the face of the deed in the descriprtion portion says "See Exhibit A" or "As described in Exhibit A", then it is very much implied that there was an Exhibit A and that it described something. If it did not, the contract fails on two of the required counts, something received, the land, and a meeting of the minds.
What you describe is a basic definition of a void deed, thus a voidable contract. If the grantor refuses to deliver, he's asking for big trouble. It gives at least the appearance that he intended to defraud the grantee.
I wonder how the grantor would react if threatened with charges of criminal fraud. That might elicit a little cooperation.
I don't have the answers to how all the messed-up deeds should be fixed, just an amusing anecdote I ran into:
A husband and wife came to me to survey the property they had just granted their daughter by a Gift Deed. The survey was a condition the County placed on granting a Certificate of Compliance so the daughter's parcel would be considered legal for financing and building permits, etc.
They brought me the Gift Deed they had prepared themselves. The parents' deed description consisted of their property as Parcel 1 and an offsite easement from the property to a public road as Parcel 2. You guessed it, they had copied the description of the offsite easement onto the Gift Deed and proudly presented it to the daughter and recorded it. That was easy to fix with a Corrective Gift Deed because both parties obviously were willing to co-operate.
Suit to reform the deed
Well, if the Grantor won't voluntarily give a corrected deed, the fix is to bring suit to reform it.
If the buyer took possession of the property, an affidavit is fitting and will notify the tax assessor so they know who to send the tax bill. If course, this presupposes that the grantor/grantee part of the deed is on record so that the buyer is identified.
Richard Schaut
Suit to reform the deed
Ditto Kent. And I think the Judge would hold the grantor liable for the legal expenses.
Suit to reform the deed
> Well, if the Grantor won't voluntarily give a corrected deed, the fix is to bring suit to reform it.
Ding, Ding, Ding, Ding... Kent got it right! Well, half right.
In order to bring the action, they must have a reason. The reason for the action is a suit under "part performance" which allows for one of the possible remedies as a reformation. The other remedy, if they can't determine the terms agreed to, is "recision." They'll restore the parties to their earlier state.
It's typically pretty easy to get the reformation as they will simply look to extrinsic evidence to explain the terms of the contract. One of the parties as well as the closing agent, the title company, or the attorney may have a copy or the original exhibit which was attached. They might also consider extrinsic evidence such as, what property the grantor owned at the time of the conveyance, or what property the grantee occupied after the conveyance. The real estate contract might contain additional evidence of what was intended. Which home did the real estate agent show them? Any extrinsic evidence that will assist the court in determining the missing terms of the contract will be employed.
One this is certain, the parties entered an agreement to exchange money for property. They consummated their agreement and documented it in writing. They'll look to whatever extrinsic evidence they can to fill in the missing parts. If there were an affidavit filed by the title company as soon as the missing exhibit was discovered (which happens only a few days after filing when the conveyance is indexed), that affidavit would provide near conclusive evidence of what the exhibit was supposed to contain. The affidavit would likely be conclusive enough that subsequent conveyances would likely treat it as the prima facia truth of statements made, and never make a big deal about it. If a big deal is made, they'll likely file the action for part performance, show the affidavit to the judge, and win on a default motion.
JBS
Suit to reform the deed
> In order to bring the action, they must have a reason.
The actual provision of Texas law is this, taken from the Texas Property Code:
Sec. 5.002. FAILING AS A CONVEYANCE. An instrument intended as a conveyance of real property or an interest in real property that, because of this chapter, fails as a conveyance in whole or in part is enforceable to the extent permitted by law as a contract to convey the property or interest.
Acts 1983, 68th Leg., p. 3480, ch. 576, Sec. 1, eff. Jan. 1, 1984.
In other words, there is no "reason" necessary to bring suit to reform an instrument that fails as a conveyance. A deed that neglects to describe the land subject of the deed fails upon its face, so that test of the statute is met automatically.
Suit to reform the deed
> In other words, there is no "reason" necessary to bring suit to reform an instrument that fails as a conveyance. A deed that neglects to describe the land subject of the deed fails upon its face, so that test of the statute is met automatically.
Kent... You might want to read the "whole" statute...
> Sec. 5.002. FAILING AS A CONVEYANCE. An instrument intended as a conveyance of real property or an interest in real property that, because of this chapter, fails as a conveyance in whole or in part is enforceable to the extent permitted by law as a contract to convey the property or interest.
Actions under "law as a contract" allow suits for "complete failure" (in whole) or "part performance" (in part). Under the statute you quoted, it can go either way, and it is still "enforceable...as a contract." That doesn't mean that it's void; that means it's enforceable (which is precisely what I was saying above).
The statute is clearly distinguishing that, whether the failure is "in whole" or "in part," either failure is enforceable under contract law. Contract law allows the parties to open the terms of the conveyance for construction by extrinsic evidence (which could include an affidavit, oral statements, other documents, witnesses, actions, etc.) which can be used to explain the terms of the contract and, thereby, require its fulfillment (by reformation) or its recision.
So, ya. What I said.
JBS
Suit to reform the deed
> So, ya. What I said.
Yes, what you wrote was incorrect. Just because a deed may be enforceable as a contract doesn't mean it is a valid conveyance. Every instrument purporting to convey land is evidently in your view a valid conveyance. That is obviously false, which is the reason for the statute I cited in the first place. That is, where the conveyance is void, the parties get into court with the question of whether some contract exists between them and what its terms are as questions that must be proven in the course of reforming the instrument of conveyance that is otherwise invalid. Not Rocket Science.
Suit to reform the deed
> Yes, what you wrote was incorrect. Just because a deed may be enforceable as a contract doesn't mean it is a valid conveyance.
The "contract" is enforceable, but the conveyance isn't?" That doesn't even make sense. The contract IS to CONVEY property! To enforce the contract is to enforce the agreement to CONVEY the property.
>Every instrument purporting to convey land is evidently in your view a valid conveyance.
That is NOT MY VIEW! You're in a corner and now have to start putting obviously false premises out as being my own. You're building your own straw man, Kent. It's not mine. Of course there are invalid conveyance documents.
>That is obviously false, which is the reason for the statute I cited in the first place.
Yes, your straw-man argument is based upon a false premise. There are such things as invalid conveyances (like, when the grantor didn't own it to convey, etc.).
>That is, where the conveyance is void, the parties get into court with the question of whether some contract exists between them and what its terms are as questions that must be proven in the course of reforming the instrument of conveyance that is otherwise invalid.
No, Kent, the conveyance isn't "VOID" or "OTHERWISE INVALID." If it were, no court would have the authority to reform it. What the court is doing in a reformation case is first, find out if the contract to convey was valid, then second, if found valid, reform the contract to reflect the terms of the ORIGINAL AGREEMENT. If the contract was invalid (the conveyance was void), the court has no authority to make a void contract "un-void." When the contract is valid, the court will reform the instrument (in essence, a correction deed) which clarifies the ambiguity of the ORIGINAL VALID DEED.
>Not Rocket Science.
That's what I've always thought, Kent.
JBS
Suit to reform the deed
> The "contract" is enforceable, but the conveyance isn't?" That doesn't even make sense. The contract IS to CONVEY property! To enforce the contract is to enforce the agreement to CONVEY the property.
Well, considering that a conveyance is a transfer of title to an estate in land, a contract is not a conveyance. Typical real estate contracts do not of themselves affect a transfer of title. Rocket Science?
What the Texas statute I quoted provides is the following:
Sec. 5.002. FAILING AS A CONVEYANCE. An instrument intended as a conveyance of real property or an interest in real property that, because of this chapter, fails as a conveyance in whole or in part is enforceable to the extent permitted by law as a contract to convey the property or interest.
In other words, the fact that an instrument fails as a conveyance in whole or in part doesn't automatically mean anything aside from the the fact that the parties get a trip to the courthouse to argue about what the contract provided so that the court may reform the instrument accordingly.
By your posts, you indicate that you think that is fundamentally the same as a conveyance, which clearly is incorrect.
> No, Kent, the conveyance isn't "VOID" or "OTHERWISE INVALID." If it were, no court would have the authority to reform it.
Well, I'm trying to find a polite way to say that just sounds incredibly out of touch with reality. The situation is that an instrument fails as a conveyance. In the case that Leon Day mentioned, the instrument neglected to describe the land that was the subject of the instrument. That renders the instrument void and invalid as a conveyance. End of report. It doesn't void the underlying contract, however, which is what the parties take into court if they must have a judge reform the conveyance by which they attempted to transfer title.
Suit to reform the deed
> Well, considering that a conveyance is a transfer of title to an estate in land, a contract is not a conveyance. Typical real estate contracts do not of themselves affect a transfer of title. Rocket Science?
>
The subject of your statute isn't talking about or referring to the "real estate contract." You are stating the obvious when you say, "Typical real estate contracts do not of themselves affect a transfer of title." Yes. It's not rocket science. We're not talking about "real estate contracts." You're just building another straw-man argument. We're talking about the Conveyance document which "FAILS AS A CONVEYANCE." That's the subject of our discussion and the subject of the statute
> What the Texas statute I quoted provides is the following:
>
> Sec. 5.002. FAILING AS A CONVEYANCE. An instrument intended as a conveyance of real property or an interest in real property that, because of this chapter, fails as a conveyance in whole or in part is enforceable to the extent permitted by law as a contract to convey the property or interest.
>
>
> In other words, the fact that an instrument fails as a conveyance in whole or in part doesn't automatically mean anything aside from the the fact that the parties get a trip to the courthouse to argue about what the contract provided so that the court may reform the instrument accordingly.
>
Yes. I agree. The "instrument fails as a conveyance, in whole or in part." And, yes. It "doesn't automatically mean anything." YET!!! The parties may AVOID their trip to the courthouse entirely by a number of different methods, including reforming the deed (filing a correction deed). The only reason to go the courthouse is when the two parties cannot agree to the original terms of their contract. In the case we're talking about, that means the unknown property filed on "Exhibit A." If the parties are in agreement there is no issue. They can file an correction deed or the party making the mistake can file an affidavit to clarify the mistake in the record. There is NO INVALID CONVEYANCE nor is there A VOID DEED. The parties simply made a mistake. The law allows people to fix their mistakes, even if Kent McMillan disagrees with their method.
> By your posts, you indicate that you think that is fundamentally the same as a conveyance, which clearly is incorrect.
>
NO, Kent... I've not said that. Another straw-man. What makes the conveyance VALID is the fact that the parties 1) entered into an agreement to convey property, 2) executed that agreement by preparing a deed, signing, notarizing and delivering it, 3) made a mistake by omitting Exhibit A, which was clearly referenced as part of the deed, and 4) fixed their mistake by filing an affidavit containing the entire original document with the attached Exhibit A. No one is challenging that affidavit except Kent McMillan. The owners aren't, the title company who prepared it isn't, the court isn't. No one but Kent McMillan seems to have a problem with it.
> > No, Kent, the conveyance isn't "VOID" or "OTHERWISE INVALID." If it were, no court would have the authority to reform it.
>
> Well, I'm trying to find a polite way to say that just sounds incredibly out of touch with reality. The situation is that an instrument fails as a conveyance. In the case that Leon Day mentioned, the instrument neglected to describe the land that was the subject of the instrument. That renders the instrument void and invalid as a conveyance. End of report. It doesn't void the underlying contract, however, which is what the parties take into court if they must have a judge reform the conveyance by which they attempted to transfer title.
Well, Kent, I guess you'll have to take that up with your own legislature and the rest of common law in America. Your own statutes says, "An instrument intended as a conveyance ... that ... fails as a conveyance in whole or in part is enforceable ... as a contract to convey the property ...."
I can't understand how you can read that and not see it. We are talking about "an instrument that fails" which is "enforceable" (NOT VOID). I don't disagree that, by itself, the instrument would be void. But, the instrument is not by itself. It is surrounded by evidence that indicates circumstances, agreements, executions, documents, testimony, and all other various forms of evidence which can be used "to the extent permitted by law as a contract." That's contract law, not "real estate contracts."
You're beginning to bore me with your straw-man antics, Kent.
JBS
I think that it is important for readers of this thread to understand that the situation presented here may have totally different possible solutions depending on the state. If you are in a common law state and The Rule of Merger is in effect, the contract of sale is merged out of existence by the delivery and acceptance of the deed even if defective.
The absence of a description in a deed is a patent ambiguity pretty much everywhere, a fatal defect which courts are loathe to cure. Courts also typically rule out parol evidence in the case of patent ambiguities. So if the contract of sale and parol evidence are inadmissible, what is to be done?
Well, that is why lawyers handle that type of work and not land surveyors.
Suit to reform the deed
> > Well, considering that a conveyance is a transfer of title to an estate in land, a contract is not a conveyance. Typical real estate contracts do not of themselves affect a transfer of title. Rocket Science?
> >
> The subject of your statute isn't talking about or referring to the "real estate contract."
Of course that is what the statute refers to. I'm simply amazed that you think otherwise. What contract do you think is the subject of that Texas statute other than one to convey the real estate that the faulty conveyance failed to bring into effect?
> Yes. I agree. The "instrument fails as a conveyance, in whole or in part." And, yes. It "doesn't automatically mean anything." YET!!! The parties may AVOID their trip to the courthouse entirely by a number of different methods, including reforming the deed (filing a correction deed).
> The only reason to go the courthouse is when the two parties cannot agree to the original terms of their contract.
Is there a polite substitute for "duh"? Somehow "duh" is all that comes to mind in response to that.
>There is NO INVALID CONVEYANCE nor is there A VOID DEED.
Okay, you are making the blanket statement that a deed purporting to convey land is an effective conveyance regardless of the defects it contains. In the case Leon described (you know, the subject of this thread) was a failure to describe any land conveyed by the instrument, the missing Exhibit "A" that contained that description. I'm sorry, but your claim is Schautian. The instrument that doesn't describe the land that is the subject of the attempt at conveyance is just as much of a nullity as an instrument that the supposed grantor doesn't execute. I'd love to know in what parallel universe things are otherwise.
>The parties simply made a mistake. The law allows people to fix their mistakes, even if Kent McMillan disagrees with their method.
Yes, of course they can agree to replace the faulty deed that didn't convey any estate in any land with one that is actually effective to do so. That was never the issue in anyone's mind aside from yours, it would appear. The real question was what remedy the purchaser, the would-be grantee, has available in the event that that can't be done by mutual agreement.
> I think that it is important for readers of this thread to understand that the situation presented here may have totally different possible solutions depending on the state. If you are in a common law state and The Rule of Merger is in effect, the contract of sale is merged out of existence by the delivery and acceptance of the deed even if defective.
>
Good point, Carl. Thanks for your input.
I don't know of any state where the merger doctrine doesn't apply. We're not talking here about the real estate contract saying one thing and the deed saying another (which is the more common problem where the merger doctrine is argued). Here, we've got extrinsic evidence which explains the deficiency in the deed, which makes reference to the extrinsic evidence.
> The absence of a description in a deed is a patent ambiguity pretty much everywhere, a fatal defect which courts are loathe to cure. Courts also typically rule out parol evidence in the case of patent ambiguities. So if the contract of sale and parol evidence are inadmissible, what is to be done?
>
I'm not so certain that the "courts are loathe to cure" a patent ambiguity in this type of situation. We're talking about a missing exhibit, not a complete failure to identify any property at all. I ran a really quick search for any cases dealing with a "missing description" in a "deed" and came up with six; five of which are from Iowa, One from North Carolina. All say pretty much the same thing as I've seen elsewhere.
>>"The court explained the difference between patent and latent ambiguity this way: When a description leaves the land in a state of absolute uncertainty, and refers to nothing extrinsic by which it might be identified with certainty, it is patently ambiguous and parol evidence is not admissible to aid the description. . . . Whether a description is patently ambiguous is a question of law. A description is . . . latently ambiguous if it is insufficient in itself to identify the property but refers to something extrinsic by which identification might possibly be made. Thus, a description missing or uncertain in one document may be rendered certain by another and together the documents may satisfy the statute of frauds." Sun Valley Iowa Lake Ass'n v. Anderson, 551 NW 2d 621 - Iowa: Supreme Court 1996 or, see, River Birch Associates v. City of Raleigh and River Birch Homeowners Association Inc., 326 N.C. 100, 388 S.E.2d 538 (N.C. 02/07/1990).
>
> Well, that is why lawyers handle that type of work and not land surveyors.
>
I agree, wholeheartedly. What we are discussing here is a title matter that has little direct association with surveying land boundaries. I will say, however, that just because one is a "land surveyor" doesn't mean that they don't also possess some level of expertise regarding title matters. I'd venture that many surveyors are certainly qualified in such matters; many, also, are not. We all need to know the limits of our expertise, but none of us are limited by our expertise. We all can grow in knowledge in discussing these types of things and, if we are open to learning, we can grow in our expertise as well.
My only goal is to advance the knowledge of our profession. That includes taking a stand against any misinformation which may be disseminated. There's enough of that out there already that will take a lifetime to combat.
JBS
Suit to reform the deed
> > The subject of your statute isn't talking about or referring to the "real estate contract."
>
> Of course that is what the statute refers to. I'm simply amazed that you think otherwise. What contract do you think is the subject of that Texas statute other than one to convey the real estate that the faulty conveyance failed to bring into effect?
Where in the statute do you read any words concerning the "real estate contract?" NOWHERE.
>
> Okay, you are making the blanket statement that a deed purporting to convey land is an effective conveyance regardless of the defects it contains. In the case Leon described (you know, the subject of this thread) was a failure to describe any land conveyed by the instrument, the missing Exhibit "A" that contained that description. I'm sorry, but your claim is Schautian. The instrument that doesn't describe the land that is the subject of the attempt at conveyance is just as much of a nullity as an instrument that the supposed grantor doesn't execute. I'd love to know in what parallel universe things are otherwise.
>
Here you go again, Kent. Building another straw man. I am making no such "BLANKET STATEMENT." You either aren't reading or can't comprehend what I write. Please leave me to my own opinions; if you disagree, state your opinion and the foundation for your belief. So far, all you've stated is unfounded opinion which is contrary to the clear words of the statute you quoted.
You're also changing the facts of the thread now. How can there be an "Exhibit A" unless "Exhibit A" is called for in the recorded deed? We've all read the deeds that say, "see attached Exhibit A." Well, there isn't one attached. That's the case here, Kent. The RECORDED instrument doesn't contain the description, it does, however contain a reference to Exhibit A which is ATTACHED TO THE ORIGINAL DEED. This is a recording error, not a VOIDED TRANSACTION for lack of subject matter.
As far as "parallel universes" goes... I've quoted language from the common law from six cases above. You've quoted language from the TX statute itself, all clearly contradicting the opinion you are arguing to support. The only "universe" that appears to be "otherwise" is the bubble you've created which prevents you from acknowledging your erroneous belief.
> Yes, of course they can agree to replace the faulty deed that didn't convey any estate in any land with one that is actually effective to do so. That was never the issue in anyone's mind aside from yours, it would appear. The real question was what remedy the purchaser, the would-be grantee, has available in the event that that can't be done by mutual agreement.
My God, man. You are beyond yourself on this one. The REMEDY they have is recited in your own statute! When the parties can't agree, they can bring their disagreement to the court and the court will review the extrinsic evidence and will reform the deed. THAT IS THEIR REMEDY. The statute allows it; common law allows it, and the court executes it.
You really need to stop spreading your disinformation when it comes to title matters, Kent. It clearly isn't your area of expertise.
Thanks for posting the TX statute, and thanks for your persistence. This dialog of opposing views is helpful in that it helps others to see both sides of the coin. Discourses such as this are very helpful to understand the truth of the matter. It made me do my own research to verify the statements that I've made and has, as a result, helped to solidify my opinion.
JBS
> I think that it is important for readers of this thread to understand that the situation presented here may have totally different possible solutions depending on the state. If you are in a common law state and The Rule of Merger is in effect, the contract of sale is merged out of existence by the delivery and acceptance of the deed even if defective.
>
> The absence of a description in a deed is a patent ambiguity pretty much everywhere, a fatal defect which courts are loathe to cure.
Actually, the absence of a description isn't ambiguous at all. It's simply a fatal defect that renders the deed ineffective as a conveyance. Duane Frymire had a good post on the topic a few days ago. An ambiguity requires language admitting more than one understanding of the instrument. Where there is no such language at all, there isn't an ambiguity. One wouldn't, for example, call the fact that a grantor delivered, but didn't actually sign a deed an ambiguity. It's obviously a fatal defect.
On the subject of the merger of the original purchase contract and other agreements into the deed once executed, that is the purpose of the mention in the Texas statute that a faulty deed survives as an enforceable contract to convey the property or interest, which means that all of the attendant circumstances, including the purchase contract may bear upon the construction of that contract.
Suit to reform the deed
> Where in the statute do you read any words concerning the "real estate contract?" NOWHERE.
LOL! The statute concerns real property that had been attempted to be conveyed, presumably pursuant to some agreement. So, you think that the statute somehow doesn't envision that the contract to convey the land that is in effect isn't simply the realization of the original contract between the parties as may be determined from the evidence?
> You're also changing the facts of the thread now. How can there be an "Exhibit A" unless "Exhibit A" is called for in the recorded deed?
LOL! There are loads of deeds that refer to non-existent exhibits. In this case, the deed refers to an Exhibit "A" that is not found within it and does not direct one to where Exhibit "A" may be found. End of report as far as the sufficiency of the description goes.
> We've all read the deeds that say, "see attached Exhibit A." Well, there isn't one attached. That's the case here, Kent. The RECORDED instrument doesn't contain the description, it does, however contain a reference to Exhibit A which is ATTACHED TO THE ORIGINAL DEED.
LOL! Okay, you're obviously doing comedy. The original deed is what was presented for record. It didn't have an Exhibit "A". What is so hard to get about that?
