Don
The land owner does not have a clue what a proportional division is, just wanted to sell half the lot and that is 20 acres; not 20.00 acres.
This is from the original post:
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.
> The rational is that the original grantor showed their proportional intent by referring to the total govt acres in Lot 4 in 2 separate conveyances. They conveyed according to govt measure.
The problem with that line of thinking, linebender, is... How would you survey the boundary after the first deed goes out and before the second deed goes out. Both deeds aren't in evidence. All you have is a deed that says, "north 20 acres." So, would you survey it with 20.37 acres, taking 0.37 acres from the grantor and giving it to the grantee? The deed explicitly says "20 acres." What if GL4 was short? Would you short the grantee of their 20 acres even though the grantor has it to give and the grantee paid for it?
Just because there is a second sequential conveyance, doesn't change the boundary location established in reliance upon the first conveyance. The logic fails.
JBS
“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.”
Hey Paden,
I’m curious as to what kind of idiot (ie, attorney, title/abstract company, or god forbid a surveyor prepared the legal description of "The South 18.54 acres of Lot 4”?
It should have been, “Lot 4 blah, blah LESS the North 20 Acres”
Have a great week! 🙂
Don
Well, I don't believe she wanted to sell half the lot. I believe she wanted to sell {or someone wanted to buy) 20 acres.
Don
JB,
I just relate to the normal subdivision rules and if the deed says the N1/2 of Lot 4, I think that is a proportional part of the fractional lot. Not half the acreage.
If that description was N1/2 of Lot 4 containing 20 acres, it is still proportional. That is Lot 4 being fractional and something different then 40 acres.
If in fact exactly 20.00 acres was the intended acreage, no more, no less, and stated as such; then it is surveyed as exactly 20.00 acres.
Maybe FL/GA, you are proving my point.
Everything being proportional!
Keith
Don
Yes and that 20 acres is a general statement and is not 20.00 acres.
I agree, the expressed intent was to convey the north 20 in a government lot in the plss system. Words don't exist in a vacuum. These people are in the system and familiar with its terms. Why would it mean anything else?
The grantor could have removed themselves from the system by writing a stricly metes and bounds description. They also could have written it in such a way as to indicate no knowledge of the system. They did neither.
> I just relate to the normal subdivision rules and if the deed says the N1/2 of Lot 4, I think that is a proportional part of the fractional lot. Not half the acreage.
A description of "north 1/2" is a simultaneous conveyance which creates two interdependent parcels, not one. That's a simultaneous conveyance and rules of apportionment apply. That's what the manual is designed to do.
> If that description was N1/2 of Lot 4 containing 20 acres, it is still proportional. That is Lot 4 being fractional and something different then 40 acres.
Agreed, any description of a fractional part is simultaneous and proportional.
> If in fact exactly 20.00 acres was the intended acreage, no more, no less, and stated as such; then it is surveyed as exactly 20.00 acres.
Nothing in surveying is ever "exact."
JBS
How would you survey the boundary after the first deed goes out and before the second deed goes out.
I considered that. 1) I would ask the holder of the remainder what the intent was if they were able to answer. In this case they obviously knew there was 18.54 acres remaining or they would have called out some other number like lot 4 except the north 20 acres thereof. They knew exactly what they were granting. 20 acres according to the total in the patent. 2) if the holder of the remainder was not available to testify and there was no other evidence I would yield to the exact 20 acres. It would be the best evidence.
So, would you survey it with 20.37 acres, taking 0.37 acres from the grantor and giving it to the grantee? The deed explicitly says "20 acres." What if GL4 was short? Would you short the grantee of their 20 acres even though the grantor has it to give and the grantee paid for it?
The answer to all the question above is yes given the facts presented although I would argue that I am giving or taking nothing other than was intended. I am marking the boundary according to best evidence. 1320 ft record, 1322 ft. measured. 20 acres record, 20.37 acres measured.
Just because there is a second sequential conveyance, doesn't change the boundary location established in reliance upon the first conveyance.
Agreed, however the second deed adds previously unknown evidence of the location of the boundary established by the first deed. Where would the location of the boundary be if you became aware of a stone on each end of the line marking the north 20 acres as 20.37 acres 10 years after you surveyed off 20 acres?
Logic fails
Perhaps, but for the sake of argument would you accept the logic if the owners did?
>>How would you survey the boundary after the first deed goes out and before the second deed goes out.
> I considered that. 1) I would ask the holder of the remainder what the intent was if they were able to answer. In this case they obviously knew there was 18.54 acres remaining or they would have called out some other number like lot 4 except the north 20 acres thereof. They knew exactly what they were granting. 20 acres according to the total in the patent. 2) if the holder of the remainder was not available to testify and there was no other evidence I would yield to the exact 20 acres. It would be the best evidence.
>
You can't "ask the holder of the remnant what the intent was." That's against the rules of construction and a violation of legal principles. Parol testimony cannot be used to modify the terms of the grant, only to explain an ambiguity. "North 20 acres" isn't ambiguous to anyone except a surveyor.
>>Logic fails
> Perhaps, but for the sake of argument would you accept the logic if the owners did?
Even if the owner's accepted the "logic," upon challenge they still have to get it past the judge. He doesn't have the liberty to adopt any "logic" other than the "law" ... the same law that binds the surveyor.
JBS
"Everything being proportional!"
Keith, I like the exclamation point rather than the question mark. Now I think I understand you;-)
I hope all is well with you,
Don
Dateline: Oklahoma, 1977
Ring ring!
Hello?
Yes, I'm calling on your ad in Bobslist about the 20 acres you are selling.
Ok..
How much an acre?
$800....
Ok,um,er, that's $16,000. I can handle that. Now, am I buying a part of "the 40" or??
No, you are buying the North 20 acres of the 40. IF you want the North 1/2 of "the 40" we'll have to get the whole thing surveyed and that will cost an additional Fifty ($50) dollars.
silence......
crickets.......
FIFTY DOLLARS!!??I got a friend that works for the D O of T....but that's fine, I'll take the North 20 acres and meet you at my Lawyers office on next Monday.
Fast forward 10 years......
Dateline: Oklahoma, 1987
Ring ring!
Hello?
Yes, I'm calling on your ad in ForPetesakelist about the 18.54 acres you are selling.
Ok...
How much an acre?
Not selling it by the acre. I want $30,000 for the property.
How'd you come up with 18.54 acres?
Because it was a Gubmint Lot 4 and I already done sold the North 20 acres 10 years ago. According to the Gubmint Plack I should have 18.54 acres left over to sell....of course I would suggest you get it surveyed and I know a fellow who will do it for fifty ($50) dollars.....
Click.
Dang, that's good!
And right on!
Plus, I shopped at Piggly Wiggly when I was a boy.
Don
Don,
Couldn't be better over here!
I beleive the man's right more often than Rush. My money says he posts with one hand tied behind his back just to make it fair.
"There was never an error in the description calling the parent parcel the NW 1/4 of the NW 1/4..."
I disagree - I do not believe that there is such a thing in a lotted section... this area is a Lot.
it is NOT a head scratcher.
First Deed gets 20 acres. Second Grantee gets the rest, be it 19+ acres, 18.54 acres or 17 acres.
