> 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.....".
Yes. That's what I'm talking about... the "source of title." There is a technical term for that in your (?) statutes which gives the deed clause a name. What is it? This is driving me nuts... I just can't remember it.
>How do you trace back a deed without the references?
In the PLSS states, we trace the title through an abstract which is governed by "location" more so than a "grantor/grantee" index which makes tracing the title a bit less cumbersome. It still doesn't make it easy, that's for sure. That's why I was so impressed with the statutes which required the "source of title" in the deed.
So, what's it called???
JBS
JB
> What was that deed clause called?
Being Clause.
The courts (at least in Maryland) generally hold that it is there to assist in tracking the chain of title, however it can't be used to widen or lessen the limits of a conveyance if the language of the description is specific and unambiguous.
Derivation Clause
JB
> > What was that deed clause called?
>
>
> Being Clause.
>
> The courts (at least in Maryland) generally hold that it is there to assist in tracking the chain of title, however it can't be used to widen or lessen the limits of a conveyance if the language of the description is specific and unambiguous.
Thanks, James. That's it!! Well, not quite it, but it was enough for me to find it. The "Being Clause" is the common phraseology. The more technical term is the "Recital" or "Derivation Clause." That's the term I was looking for.
It seems to be something unique to a few of the eastern states, principally the colonial states as I've gathered so far. I've not done any more specific research on it, other than a few quick searches.
So far, it seems most popular in MD, followed by PA, KY, and DE. I'd be curious if there are any other jurisdictions out there that use "recitals," "derivation clauses," or "being clauses."
JBS
P.S. I see that Stephen came up with it, too. Thanks. Looks like TN and SC are more familiar with the term "derivation clause."
P.S.S. I guess that makes perfect sense, since James is from MD, and Stephen is from TN.
In California all we have is Grantor/Grantee indexes or the Title Plant which is privately owned. Nothing is indexed by location which isn't too bad in Tuolumne County or Sierra or Alpine but in L.A. can be a real difficult problem especially if the name is "State of" or "County of" or "City of" or "Southern California Edison."
> In California all we have is Grantor/Grantee indexes or the Title Plant which is privately owned.
I wonder if that isn't because of the Mexico roots? There aren't too many PLSS states that don't have a location index that I'm aware of.
How many are there? Do you live in a PLSS state that does NOT have a STR index? I'd like to know just out of curiosity. I'd expect the early PLSS states east of the Mississippi to use Gto/Gte indexes, and I'd expect TX to have them. What about NM? Eastern, non PLSS states, didn't have much choice.
JBS
I don't remember, did Utah come with the Treaty of Guadalupe-Hidalgo?
JB
Since Ky. was originally part of Virginia, maybe there also.
Actually, I always include it as the last line in my boundary description.
It's required by our standards of Practice. (See j below)
(4) Written description. A written description prepared by a professional land surveyor shall be complete, shall accurately describe the actual boundary survey and, contain the following information:
(a) The general location of the land that was surveyed;
(b) The specific location of the land in reference to a major physical feature or recognized control network;
(c) The reference of at least one (1) boundary corner to a corner of the parent tract;
(d) The direction and length of each line, as follows:
1. Each bearing represented in degrees, minutes and seconds with each distance represented to the hundredths of a foot;
2. Any geometrically-curved line identified with a beginning point, terminus point, and sufficient curve data to define the curve; and
3. A description of each prominent terrain feature, if any, that the boundary follows;
(e) A notation as to whether each monument was found or set;
(f) The identification of each tree utilized as a new corner monument, including breast height diameter, species of tree, method of marking, and a notation whether the tree is a record monument or a newly established monument;
(g) A complete description of each "set" monument, to include, if appropriate, the monument’s length, diameter, type of material and the identifying cap or other identifier that was used;
(h) A complete description of each "found" monument that complies with the following:
1. It is sufficiently accurate and adequate for subsequent identification by another professional land surveyor; and
2. To the extent possible, the description shall include the monument’s dimensions, type of material and the identification cap or other identifier that was used;
(i) A description of the location of any cemetery or grave site that is observable or evident during the performance of the field work, or discovered from the required research;
(j) The record source of the land surveyed and the names and record sources of all adjoining property owners;
(k) The calculated area of the land surveyed stated to the nearest hundredth of an acre;
(l) Name, certification date of the written description, license number and seal of the professional land surveyor under whose direct supervision the survey was performed, and name of the land surveying firm, if any; and
(m) Completion date of the boundary survey.
JB
> Since Ky. was originally part of Virginia, maybe there also.
>
> Actually, I always include it as the last line in my boundary description.
>
> It's required by our standards of Practice. (See j below)
>
> (j) The record source of the land surveyed and the names and record sources of all adjoining property owners;
Thanks, Eddy... I can see where having a derivation clause in the deed would really assist in researching the chain of title back in states which rely upon a Grantor/Grantee type of indexing system.
Heck, it would even benefit us states who have an STR index.
JBS
> I don't remember, did Utah come with the Treaty of Guadalupe-Hidalgo?
Yes, Utah did. The Mormons were quite disappointed, I think. When they arrived in the Salt Lake Valley, they were in Mexico, but about as far from reach of the Mexican Government as they could get. Within a year, they found themselves back in the U.S.
JBS
Suit to reform the deed
That's not really what it says.
What the statute is getting at is that a court may consider the surrounding evidence and might conclude that it amounts to an offer, and possibly even an offer that was accepted by way of a down payment. But if it fails as a conveyance, it fails.
Assuming the court is persuaded, the contract for sale would still need to be negotiated as to particulars. If a court were convinced money changed hands, and the potential grantor refused to negotiate in good faith, then probably the court would demand a repayment. I don't see them inserting the particulars and forcing a conveyance.
Suit to reform the deed
> That's not really what it says.
>
> What the statute is getting at is that a court may consider the surrounding evidence and might conclude that it amounts to an offer, and possibly even an offer that was accepted by way of a down payment. But if it fails as a conveyance, it fails.
>
> Assuming the court is persuaded, the contract for sale would still need to be negotiated as to particulars. If a court were convinced money changed hands, and the potential grantor refused to negotiate in good faith, then probably the court would demand a repayment. I don't see them inserting the particulars and forcing a conveyance.
Wait a minute, Duane... Yes, the conveyance has failed as there is no attachment to describe the property. That's a given. That's where the statute kicks in. The premise of the statute is that the conveyance has failed... So, what is the remedy? Read the 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.
If this instrument (which is obviously intended as a conveyance of real property) fails (because of a missing exhibit), it is enforceable as a contract to convey. What good is a contract to convey, if it cannot be "forced as a conveyance?" The statute clearly says it can be enforced. If the contract is and agreement "to convey," then it's enforcement recognizes the conveyance. The only other alternative is that the contract fails and the court rescinds it.
How can you "not see them inserting the particulars and forcing a conveyance?" Especially in light of the affidavit by the title company which supplies the exhibit...
JBS
Suit to reform the deed
"...to the extent permitted by law..."
As I explained above.
The statute is merely recognizing that the document might be sufficient as a contract for sale. If it turns out, based on all the evidence, that it is, then it will be analyzed under those rules. Specific performance is only one possible remedy, again depending on all the evidence.
