Suit to reform the deed
> 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?
>
There are many land sales that don't have a "real estate contract" involved. The statute clearly says nothing about them and doesn't even need to when it is clear from the fact that a deed has been signed, executed, delivered and recorded, to know there was an agreement, hence a "contract." You are reading words into a clearly expressed statute which has no need for interpretation.
> 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.
>
Just because you don't know which "Exibit A" to look for, in no way excuses one from looking. In fact, the entire directive in your statute is opposite to your premise. It's called "extrinsic evidence" for a reason, Kent. That's evidence found "outside" of the conveyance document.
> 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?
No, Kent. The "original deed" is the deed that was signed, acknowledged, and represented, agreed upon and delivered. What got recorded was missing an attachment. It's not at all "hard to get."
And, no. I'm not laughing.
JBS
appropos to nothing...
[flash width=480 height=390] http://www.youtube.com/v/9iteRKvRKFA?fs=1&hl=en_US [/flash]
> 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.
Kent, if the situation were as black and white as you present it, then why don't court cases just simply state that the deed is "void" or "fatal" or "unenforceable" or "of no effect?" Why doesn't your TX statute say that "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 UNenforceable?" That's the way you want to read it. Why all the discussion about "extrinsic evidence" if the deed is, as you claim, "void?"
The reason that the law doesn't simply dismiss the deed in its entirety, is because it may not be "void" and it may not be "enforceable." The only way to know that is to gather the evidence and consider it in accordance with the rules of law. Not Kent's way of interpreting the law. Not Kent's way of ignoring the law. In accordance with the law.
JBS
Suit to reform the deed
> There are many land sales that don't have a "real estate contract" involved.
Why not give an example of a land sale that takes place without even an oral agreement?
>The statute clearly says nothing about them and doesn't even need to when it is clear from the fact that a deed has been signed, executed, delivered and recorded, to know there was an agreement, hence a "contract." You are reading words into a clearly expressed statute which has no need for interpretation.
No, my reading is simply common sense. Yours makes no sense at all if you want to assert as you have that a "contract to convey the land" isn't (a) a real estate contract and (b) has no relation to the contract, written or oral, that existed between the parties at the time of the execution of the faulty deed.
> Just because you don't know which "Exibit A" to look for, in no way excuses one from looking.
Okay, there you go again, wanting to somehow fire a magic third party affidavit into the records that will remedy the instrument that is a nullity. You go ahead and we'll just watch that one.
> No, Kent. The "original deed" is the deed that was signed, acknowledged, and represented, agreed upon and delivered. What got recorded was missing an attachment.
That's just dim, sorry. The original instrument is what was presented for record. Just because you want to believe that it had to have had an Exhibit "A" at the closing table when executed doesn't mean that it did. If you have so little experience in these matters as not to realize that, I can see how this whole topic would be as confusing as it evidently has been.
> Kent, if the situation were as black and white as you present it, then why don't court cases just simply state that the deed is "void" or "fatal" or "unenforceable" or "of no effect?" Why doesn't your TX statute say that "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 UNenforceable?"
Your continuing problem is that you want to consider the contract to convey land as absolutely identical to the conveyance. That clearly isn't the case. The Texas statute simply summons to life a contract to convey some estate in land somewhere that at first impression is most likely going to be shown to be the one that existed between the parties before the faulty deed failed to make the conveyance. Rocket Science?
> Actually, the absence of a description isn't ambiguous at all.
Sorry. I should have put the term "patent ambiguity" in quotation marks as it is a legal term not related to the respondent's use of the word "ambiguity". I never intended the word "ambiguity" to stand by itself, and I apologize for any confusion.
The term "patent ambiguity" can be referenced in Blacks's Law Dictionary, Google, Wikipedia, etc. and I would refer the respondent to one or more of those sources for a more complete explanation of the legal term.
Once done, he is welcome to come back here and explain his agreement or disagreement that a missing description in a deed is a "patent ambiguity" in the contemplation of the law.
> > Actually, the absence of a description isn't ambiguous at all.
>
> Sorry. I should have put the term "patent ambiguity" in quotation marks as it is a legal term not related to the respondent's use of the word "ambiguity".
Yes, of course it's a legal term, but a missing description isn't an ambiguity of any sort, either latent or patent. The language of the deed is perfectly clear and unambiguous, the land conveyed is that described on a non-existent Exhibit "A". The analogy to a missing signature of a grantor is exact. The grantor's name is neatly typed at the bottom of the instrument, There is no question about who the grantor was intended to be. The signature is absent, however, so the instrument is entirely insufficient to convey any estate, just as a deed that describes no estate is.
Duane Frymire, who actually is an attorney (instead of merely playing one on the internet), gave a good explanation in an earlier thread that should set you straight on this point were you to ever read his post.
> Yes, of course it's a legal term, but a missing description isn't an ambiguity of any sort, either latent or patent. The language of the deed is perfectly clear and unambiguous, the land conveyed is that described on a non-existent Exhibit "A". The analogy to a missing signature of a grantor is exact. The grantor's name is neatly typed at the bottom of the instrument, There is no question about who the grantor was intended to be. The signature is absent, however, so the instrument is entirely insufficient to convey any estate, just as a deed that describes no estate is.
>
Well, Kent... apparently your out of arguments to support your conclusions as you've now taken to changing the fact set to support yourself. Yes. I'll agree that a missing signature in itself is insufficient to convey title. You might want to be a little cautious, however, before you declare the conveyance patently void before reading this case along with about 20 or more others:
>>"This case involves the validity of an unsigned warranty deed in the plaintiffs' chain of title. Following a bench trial, the court below reformed the deed to add the missing signature. The defendants appeal, arguing, among other things, that the unsigned deed is inoperative and cannot be reformed. We affirm." Lane v. Spriggs, No. E2001-00163-COA-R3-CV (Tenn.App. 10/19/2001)
I don't think you're going to get much support with your blanket approach to declaring deeds as void.
> Duane Frymire, who actually is an attorney, gave a good explanation in an earlier thread that should set you straight on this point were to ever read his post.
Thank you, Kent. I have great respect for Duane and value his opinions a great deal. In fact, I did read his post. He did a very good job of explaining the difference between a deed void for "vagueness" as opposed to a deed which is patently or latently ambiguous. You apparently haven't understood the difference. You might want to re-read Duane's post as well. (You might also want to check with Duane about your representing him as an attorney. I don't believe I've ever seen or heard Duane represent himself as such.)
However, Kent... You still can't get past the following explanation or the clear words of your TX statute.
>>"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).
Sorry Kent, that's the way the courts see it. I can't help you if you choose to not believe them.
JBS
Duane Frymire, who actually is an attorney (instead of merely playing one on the internet), gave a good explanation in an earlier thread that should set you straight on this point were you to ever read his post.
Thanks for your reply and your help in making my points.
I'm sure Duane is a fine attorney but he does not appear to be a member of the bar of my state. Therefore, he is not an attorney to me for title issues. I have my own staff attorney in house to advise me on this topic, but his opinion is not of any consequence in the other 49 states. My point is that you and I and everyone else here who are not attorneys need not be spending a lot of time giving public opinions about title issues with vehement assurances of how "correct" we are. Nobody cares. It's just argumentation for the sake of argumentation beyond this point.
> My point is that you and I and everyone else here who are not attorneys need not be spending a lot of time giving public opinions about title issues with vehement assurances of how "correct" we are.
Well, I think the point is that Duane's views are consistent with my own on the subject of whether a deed that doesn't describe the land that is its subject is fatally defective or merely latently ambiguous as one of the prolific typists to this thread claimed, obviously erroneously. Actually, in fairness I believe he later realized that it was ridiculous to claim that was a latent ambiguity, but decided it was a patent ambiguity, also in the face of the obvious to the contrary.
Now as for what constitutes a latent ambiguity, that certainly is true that your state's courts may have held all sorts of crazy things that none of the courts of the other states have. I would not doubt that for a moment. On the whole, though, the question in matters of common law is usually a general one, as is the case here.
> Well, Kent... apparently your out of arguments to support your conclusions as you've now taken to changing the fact set to support yourself. Yes. I'll agree that a missing signature in itself is insufficient to convey title.
Not really a change at all. By your logic a missing signature was merely an "ambiguity" of some class. Now, apparently, you recognize that it is a fatal defect of the sort that the Texas statute I cited would act to reform. You're heading in the right direction, if very, very slowly.
> Not really a change at all. By your logic a missing signature was merely an "ambiguity" of some class. Now, apparently, you recognize that it is a fatal defect of the sort that the Texas statute I cited would act to reform. You're heading in the right direction, if very, very slowly.
Kent... If you'd worry less about "my logic," you might find time to develop a logic of your own. It's readily apparent that you aren't going anywhere but in circles.
JBS
>It's readily apparent that you aren't going anywhere but in circles.
I think what you mean is that I actually have posted consistent views (unlike some who have struggled with the difference between latent and patent ambiguities, for example). :>
> I think what you mean is that I actually have posted consistent views (unlike some who have struggled with the difference between latent and patent ambiguities, for example). :>
You think wrong.
JBS
> You think wrong.
Well, you definitely have had some difficulty deciding what exactly differentiated a latent ambiguity from a patent ambiguity. Likewise, you've only grudgingly come around to the idea that there is such a thing as a fatal defect in a deed that renders it ineffective as a conveyance.
One need look no further than the threads over the last week or so on related topics to see the truth of my characterization. I'm sorry that it's discomforting, but is it fair to point that out to you, particularly if you want to describe my fairly consistent statements of the law as "circular". I'll grant you, it's amusing, but I'm concerned that some reader might take your views seriously, which I doubt you intend.
> Well, you definitely have had some difficulty deciding ...
>
> ... I'm concerned that some reader might take your views seriously, which I doubt you intend.
Nope. No difficulties here, Kent. I also share your "concern" that "some reader" might take your views seriously." I really don't care what your views are, Kent. What I care is that the "readers" get a variety of views. That's the part that you don't seem to understand. There is nothing wrong with having and expressing a viewpoint. What is wrong, is having another poster, such as yourself, who can't stand by while another expresses their view. I don't mind the point-counterpoint debate style. I actually enjoy it.
Counterpoints, however, are meant to augment a view, not an opportunity to twist the others' statements to say things not said. You are bent on belittling that view, twisting that view, chiding that view, and badgering that view to the point that all opposing views appear bizarre and everyone is afraid to post any view contrary to your own for fear of public ridicule. Well, Kent. I won't stand for it; I never have and I never will.
I've stated my view, I've supported my view with the law, and that's my view. Unless or until you or anyone else can post some law that will help me to understand a different view, then leave my views stand as I present them. You don't have to explain my views, interpret my views, or even read my views. I formulate my views based upon information. I've changed many of my views over time based upon all sorts of facts and circumstances. I will continue to formulate my views till the day I die.
I've already learned much from the views that you've shared. Your expertise in measurement analysis is fascinating to me. Thank you for those posts. We're long overdue for another one. I can only wish that you were as equally grateful and respectful for others who express their views on areas within their expertise.
JBS
I believe any deed I've seen where "exhibit A" was missing also contained the statement "Being the same land conveyed to X by Y dated ______, recorded in DB ___ Pg__, etc.
Doesn't that settle "intent" and pretty much this whole arguement?
That would be nice but not often seen here.
I have often wished Deeds would have that simple clue to the previous link in the chain.
Except to say that if the missing Exhibit A only describes a portion of the previous Deed then it could be misleading as to the answer to the problem. We have the SMA here so it is almost impossible to divide property without a Survey and Map unless you are a government agency. Government agencies generally have expert title people on staff that should be a check on the Title Company to make sure the Deed gets recorded correctly or if a mistake happens a proper remedy is implemented.
> I believe any deed I've seen where "exhibit A" was missing also contained the statement "Being the same land conveyed to X by Y dated ______, recorded in DB ___ Pg__, etc.
Eddy... You bring up an interesting point that reminded me of a discussion that was raised at a presentation I gave to the National Park Service a few years ago. There were different NPS employees from all over the country in attendance for a two-day legal descriptions workshop.
Several of them brought up a statutory requirement that existed in a couple of eastern states (one of them could have been KY, I don't recall), which required a clause in the deed which referenced the prior deed in the chain of title which evidenced the right of conveyance. I can't remember what that term was now. We looked up the statutes and a few court cases which used the term, but I can't remember it. It was foreign to me at the time, being a subject from the western states, but it was a great concept.
What was that deed clause called?
JBS
Really, that's not standard procedure in other states? I don't know that it's a rule in Ky, but most every deed has the source of title in it. It either says "Being the same property....." or "Being a part of the same property.....". How do you trace back a deed without the references? Just the other day I retraced my own deed back to determine why it says I own to the far bank of a creek rather than the center. Turns out, about 6 deeds back, there apparently was a dispute where somebody tried to divert the creek, and there was a deed where it states that that party agreed to remove the obstructions, and deed all their right to the creek and any property on the north side of the creek to the guy who ended up with my property, and furthermore agreed that henceforth the line was the south bank of the creek. That may have been hard to find without the references in all the deeds.
