PLSS - Section 6, Lot 4

I'm not a PLS, much less a guru. But I see no reason to doubt that the intention of the second conveyance was to transfer all of the remainder after the first conveyance. No 20 ft strip shown by occupation, then no 20 ft strip exists.

I am a PLS, but in a colonial state. I think I may have had a similar question on my P&P exam. I would agree with Bill, that the first conveyance gets the northern 20 acres and that the "intent" was to convey the remaining acreage to the south. This, of course, is due to the absence of any physical evidence of occupation lines in the field. I am interested to hear other opinions since I never even heard of the PLSS until I started studying for my exam.

Edit: I would assume this correct also if you cannot find any evidence that the intent was to retain a 20' strip in the middle. I would base my argument on intent being that the daughter believed she had 18.52 acres remaining and that is exactly what she conveyed in the second deed.

I'm guessing the intent was to sell all the land, but I believe the original owner still has a claim to the extra land. I'm no guru taking my test in 4 weeks. I know a old surveyor I used to work with would try to find the original owner if possible. If that's not possible I think you have a very difficult decision. The only other evidence would be the occupation, but that doesn't sound like it helps much.
Good Luck on this one. I'd be interested to hear how you resolve this issue.
Mark

I agree with Bill, 20 acres to the first grantee and the balance to the second grantee.

I actually don't believe that it's a PLSS question at this point. She sold the north 20 acres to the senior party, and later, she sold the rest. I don't see any aliquot issues or any other PLSSy kind of stuff going on.

Don

And BTW: there is no "extra" land.

Mr. Cash,
I doubt their is a gap between the two properties.

I am curious as to how you determined the bearing of the line between the two? Parallel to either the N bdy or S bdy of lot 4; east - west; or some other way such as a mean of the N and S bdys?

Jerry

Good question, Jerry Knight, that's the real issue.

Don

The daughter (now deceased) of the original patent holder takes possession of Lot 4 in 1965 probate. She sells "The North 20 acres of Lot 4" in 1977. Ten years later she sells "The South 18.54 acres of Lot 4". This is verbatim from Warranty Deeds.

I assume there was no record evidencing an intent to retain any land between the two granted parcels.

Questions: Would the original grantor's estate actually have title to an almost 20' +/- hyatus strip across the middle of the parcel?

Not without evidence of an intent to retain the strip.

If you decided there were actually only two property owners now in Lot 4, would you really feel sure enough of your survey to state in depositions that you "knew" what intent the grantor had for the conveyances? Acreage conveyances are not particularly ambiguous.

I would state what I learned from the evidence. The presumption is that the grantor did not intend to retain a strip between the described parcels, but it is a rebuttable presumption.

Not sure what to do. There is an ancient fence row running east and west through the property, but it's location follows more of the natural character (upland/ lowland) than a survey line. No one knows who or when the fence was built. It actually gores both properties in certain areas.

Has the fence been accepted as the boundary line by the parties? What (if any) evidence is there of an agreed boundary, an acquiesced boundary, repose, etc.?

The senior/junior solution may BE the solution, barring another one revealed by the evidence uncovered.

Good question Paden

I agree no parcel, either clerical or physical, exists between the two properties. I do believe that an argument could be made that the original estate has at least 'color of title' to approximately 7/10 of an acre.

The thing that bothers me about where the boundary actual exists is that wherever the excess area is placed, you have to assume that one deed's acreage is correct, and one is not. There is no evidence that either are incorrect.

In the absence of any written word, I am more inclined to place 20.37 acres to the north and 18.88 acres to the south. This would be equitable to both record owners. But on the same token, I would be ignoring the fact that the original estate may have a claim.

Nothing that happens subsequently has any effect on the fact that the old gal deeded 20 acres to the first guy. Once you accept that, everything else falls into place.

Don

Courts seem to solve questions such as this one by either proportioning by proration when there was a simultaneous conveyance, or by dealing with it as a senior-junior rights situation. They don't seem to ever create a gap or overlap. We shouldn't either.

To me it is clear that the original conveyance was intended to convey twenty acres and for the grantor to retain the residue of the parcel. Until a new survey discovered a variance in the overall acreage originally reported, the original survey was valid and was relied on for the disposition of the remainder of the original parcel. To me the intent to convey the entire residue is clear. The grantee takes the residue in this situation with whatever deficiency or overage exists as a result of twenty acres being conveyed ten years earlier. Luckily you are not delivering the news of a deficiency.

I haven't read anything here to indicate that the original grantor intended to keep any land so I'd rule that one out. The grantor sold 20 acres and then the remainder, all the original parcel.

So now you come to the boundary. It appears that you can't retrace unless the fence is the original boundary which you indicate is not (convenience fence). So the boundary hasn't been established. You will need to work with the landowners to establish the boundary. So explain to them the situation, get them to accept some proposal say 20 and remainder, use the existing fence, or some other line of agreed to equity. Once the landowners are on board finish the survey and get the landowners to put it in the record per their agreement. Get paid for all the help you provided them establishing their common boundary.

Correct Don.

Per Clark, 7th edition, Section 12.14:
"Where the sale was first made to A, leaving the balance of the title in the owner, and subsequently the owner conveyed the balance to B, certainly the court was right in giving B the surplus. Had the owner made the sales at the same time, doubtless the court would have held that the excess should be divided between A and B equally."

However, if a solution is what you are after, why not propose, to the current owners, accepting the existing meandering fence line as the boundary? Be the hero 🙂

I've been known, on occasion, to ask landowners if they really enjoy building fence? The most common answer is obvious;-)

I think you are thinking too hard about the situation. First grantee gets the N 20 acres and the second gets the remainder. I'll pose this question as I haven't seen anybody so far ask....what if the entire tract was smaller than the GLO plat/notes and instead of 38.54 acres you only came up with 36.2 or the sorts? Would you expect the first grantee to give up a proportional amount? Of course not!;-)

Paden,

Guru or not I am,
Seriously though-

Are you certain about the location of the N1/4 Corner?
-or-
for that matter, the location of the W1/4 Corner?
-also-
is there occupation along the lines?
if so why would you not hold?
is there any testimony concerning corners or lines?
are there any old surveys that locate lot 4?
are there Monument Records or tie notes for your state/county?
is it possible the intent was for the north 1/2 at one time?
how does the county assess the two properties?
are there improvements that indicate boundaries?
does one solution fit better than the other?

rember; it's only a preponderance of evidence
-not- proof beyond a reasonable doubt

Do your Due Diligence and make a decision!!
You have a license don't you?

Situations like this can not be debated on a message board.
You have intimate knowledge about the property.
You have a 'feeling' about the facts
Only YOU can make the proper decision
Do So & Stand Tall!

Questions: Would the original grantor's estate actually have title to an almost 20' +/- hyatus strip across the middle of the parcel?

Simple answer is no, in my opinion.

First, let's examine the fence. Lot 4 remained a whole lot until the sale in 1977 so if the fence was there before then, which it appears, then it was as you say, a divider between low/high lands most likely to keep cattle within one or the other area. Since there is no record of any previous division then the fence seems to have little weight that we can attach to it at this point.

The survey,and the original Lot 4, is the result of a survey. It showed 38.54 acres and they sold both parts based on this information. Of course, they should have stayed with aliquot calls unless they had a new survey. The North 1/2 of Lot 4 and the South 1/2 of Lot 4.

At this point,based on the deeds, I would give the North owner 20 acres and the South owner the remainder.

And as to the fence, there is no reason to move a fence as long as everyone is aware that it is not the property line but merely a fence of convienence. Times are tough and a fence is expensive.

paden

It's a junior/senior rights issue. If the original acreages conveyed by the original owner, add up to the supposed acreage, then put the senior line down and the junior tract gets all of the excess or deficiency.

I would have zero problem making that call and rolling on.

>
> Questions: Would the original grantor's estate actually have title to an almost 20' +/- hyatus strip across the middle of the parcel?
>
Only if you have evidence they were relying on something other than the GLO plat to determine the area of their property.

> If you decided there were actually only two property owners now in Lot 4, would you really feel sure enough of your survey to state in depositions that you "knew" what intent the grantor had for the conveyances? Acreage conveyances are not particularly ambiguous.
>
They can be ambiguous as to the method of division. In this case, without any additional evidence, I would be confident that the words of the deed and the intent of the first deed was to grant just 20 acres, but remember if the words in a deed have a clear meaning they must be held regardless of intent unless both the granter and grantee claim otherwise.

> Not sure what to do. There is an ancient fence row running east and west through the property, but it's location follows more of the natural character (upland/ lowland) than a survey line. No one knows who or when the fence was built. It actually gores both properties in certain areas.

Does the fence roughly create a 20 acre parcel? If it does I would construct the boundary that creates a "north 20 acres" using the method that most closely matches the fence. If not I wouldn’t worry about it.

I am surprised that many of you say it is a "no-brainer".

I do understand the concept of senior/junior rights, and there is certainly a good argument that the conveyances should possibly respect that. However there is "intent" to consider as well. If the original owner has a deed that says they owned 38.54 acres, that original deed is considered to be "correct", and it would also make sense that the first transfer should get their share of the 38.54 . I see an ambiguity, and think it should take further investigation to decide on the intent as to what was meant to be conveyed.

As someone mentioned "what if it was less than the original deed". That also introduces an ambiguity. It is my understanding that courts rule, however, in "favor" of the grantee, in the case of an ambiguious situation. That argument could imply that the first grantee get the larger of the ambiguous situation. In which case, the first grantee would get the proportioned-over 20 acres- property and in the second case the first grantee would get the measured 20 acres.

Regardless of these arguments, I suggest that the surveyor should resort to extrensic evidence to come up with the appropriate solution. (if there is evidence that the first grantee accepted and used 20 acres, and even perhaps had it surveyed as such, or if the first grantee accepted a prorportional portion of (20/39ths) of the property.)

Obviously I don't think there is a cut-and-dried answer to the question.