Valid Conveyance?

Ok, this has been posted for over an hour with no replies. Almost makes us cynical folks think its a hypothetical trick question. Perhaps, but not to unfathonable.

1) yes, since it's recorded. See "color of title" for other options, but doesn't seem to be a title problem

2) perhaps the configuration based on occupation - by all parties involved. Who knows, but I'd try and make it 20 acres? It's been 60-110 yrs. I'd recommend calling a surveyor.

3) call your lawyer. I'm just the surveyor and here is your map. Yes, a bit of a copout, but in the mean time let us review our contract.

4) refer to the credibility of other maps by said assessor(s) over the past 60-110 years. Look for a common denominator of sorts. It may help?

Most likely the M & B folks from back East will have a much better handle on seeming hypothetical situations like this. I've run across a few, and always got the adjoiners totally involved and solved world peace through a re-plat of some kind. Quit claims work, but I'm not totally in favor of fixing property lines with them. I'd rather fix it right the first time, than have the lawyers and lay people just screw it up some more.

Case closed....

"If the instrument fails to describe the parcel to the extent that its boundaries cannot be definitely located, it will be considered void....Regardless of the fact that a survey has been conducted and the lines marked, the instrument will confer no title at all."

--Robillard et. al., Clark on Surveying and Boundaries, 5th ed., Sect. 16.03

Clark cites court cases from California and Georgia to back these assertions up.

I suspect that the correct answer here would vary a lot from state to state. I do believe that acts of the parties on the ground, especially long-term occupation by the original grantee and his or her heirs and assigns, would likely suffice to establish the limits, and thus the validity, of the grant. Marketable title might be another thing.

In Maine, I don't think the tax maps would make the slightest difference in themselves, though it would be worth asking the assessor what data was used to draw them.

The question is not far-fetched. I had a nearly identical situation hereabouts some years ago and spent a long, long time combing a large, wooded "parent parcel" looking for evidence of occupation or boundary establishment. Finding nothing, I advised the client that the parcel could not be located and referred him to an attorney. The only survey equipment that left the truck was a hand compass and some flagging, and I found no use for either.

> Let's talk about conveyances. Specifically, questionable conveyances.
>
> Around 1900 Mary Jones acquires 100 acres via reference to a non-record map. No metes and bounds cited within the body of the deed, just a reference to the map.
>
> In the 1950s Mary conveys to John Smith 20 acres. The deed refers to "a portion of the Mary Jones property as recorded in Deed Book 126, Page 278." The deed reference is correct. But there is nothing else in the John Smith deed to indicate what portion of the Mary Jones property is being conveyed.
>
> 1. Was the conveyance to Smith effective?
>
> 2. Assuming Smith has used a portion of what was the Mary Jones property, would that change the answer to question 1?
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> 3. Assuming the folks at the county tax office guessed at the location of the Smith property and Mr. Smith has been "paying taxes" on something for many years does that change anything?
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> 4. For those who answer yes to #3, what if the location on the tax maps have changed several times over the years? That make any difference?
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> Some interesting things to consider.
>
> Larry P

What does the description read for 126/278? If that description is sufficient that a surveyor can place it on the ground, then there don't appear to be any issues.

I run into these all the time; where a description call for a previous deed "for a more particular description." And if that description is in the deed of the original conveyance, my day is even better.

Sounds like a job for the "fenceline surveyor". I've done many boundaries that absolutely could not be drawn up until after the fieldwork and other research had been done. Old aerials, parole evidence, historical documents other than at the courthouse are sometimes necessary. Local historical societies can be tapped as well. I think that in this area at least, the title is valid; just a bad description which is as common as dandelions.

Given the occupation and length of time most courts would probably say it's valid. Assuming of course that a surveyor has produced a map showing evidence of boundaries that are reasonably close to 20 acres under the circumstances. Tax maps are not conclusive but are certainly evidence to be considered.

1. Was the conveyance to Smith effective?
2. Assuming Smith has used a portion of what was the Mary Jones property, would that change the answer to question 1?
3. Assuming the folks at the county tax office guessed at the location of the Smith property and Mr. Smith has been "paying taxes" on something for many years does that change anything?
4. For those who answer yes to #3, what if the location on the tax maps have changed several times over the years? That make any difference?

Cee Gee
"If the instrument fails to describe the parcel to the extent that its boundaries cannot be definitely located, it will be considered void....Regardless of the fact that a survey has been conducted and the lines marked, the instrument will confer no title at all."
--Robillard et. al., Clark on Surveying and Boundaries, 5th ed., Sect. 16.03

While true, I would argue that many an instrument fails to describe parcels to the extent that their boundaries can “definitely” be located. I believe we are often and always using mathematical, extrinsic evidence, and priorities of calls to resolve ambiguities. Without a resolve of an ambiguity, there is more than one place to locate the boundary on the ground. It is a true and legal argument, but from what I understand, the courts are, more often than not, going to err on the side of the description being “valid”. Note that there are cases where a boundary that calls to an area only and is staked on the ground have held as long as the staked boundary reasnoably meets the area call. (I am not doing the research to cite any, but I remember such a case cited in "Wattles" book). It might be that property pins in the ground that match 20 acres might resolve that ambiguity.

Newtonsapple:
Re: “What does the description read for 126/278? If that description is sufficient that a surveyor can place it on the ground, then there don't appear to be any issues.”
From the first post I am “presuming” that the description for 126/278 is referencing an unrecorded plat.
Tom B.: “parol” (sorry you probably already knew that, but the fingers added the “e”). Anyway I agree with the gist of you posted.

My answers:
1. Technically no, but I would guess that most courts would accept it, meaning technically…yes.
2. I would say yes, it would change the answer, to a less ambiguous answer….More technically yes than technically no.
3. Yes….even more strength to the fact that a parcel of land was conveyed.
4. No…I think actual occupation evidence including an area tha Mary Jones doesn’t use as well as what J. Smith does, would be stronger.
But I don’t know….I am just discussing it. I imagine looking up case law would help draw a more specific conclusion.

> 1. Was the conveyance to Smith effective?

Yes. Mary Jones had been occupying the original parcel for 50 years without challenge to her ocupation, and the lack of opposition by the grantor could indicate intent.

> 2. Assuming Smith has used a portion of what was the Mary Jones property, would that change the answer to question 1?

Mary Jones occupied it for 50 years, now she gives some undefined piece to John Smith, who has apparently been occupying for the ensuing 60+ years. So far so good, both probably have title to what they are possessing now. I'd have to hope that the area of Smith's possession was somewhat close to 20 acres.

> 3. Assuming the folks at the county tax office guessed at the location of the Smith property and Mr. Smith has been "paying taxes" on something for many years does that change anything?

I'd have to compare what the tax assessor has been doing versus what John Smith has been possessing, but it probably wouldn't make a difference in terms of title.

> 4. For those who answer yes to #3, what if the location on the tax maps have changed several times over the years? That make any difference?

Again, unless what Smith has been possessing has been moving around with the tax maps, I'd say NO.

Tom/adamsurveyor:

I agree completely with your take on the Clark/ Robillard quote. I brought it in just to show that there is some authority for title nullification in cases where, even with recourse to extrinsic evidence, there is no clue as to what was being conveyed. In 30+ years of surveying I've seen only two such cases, the most recent being the one I outlined. But, Clark notwithstanding, the idea that the description must in itself suffice completely would hold no water in Maine or, I think, most places.

I would say the conveyance was good and a right to the area stated was valid. It would be the actions of the parties that determined the locations which with research could be determined. If those actions only establish a firm use of less than the 20 acres then an agreement between the parties would be in order, if occupation was greater than 20 acres then again the choices of the parties to defend could result in court action. Sounds like a meeting with all, including an informed and willing surveyor could result in a correction deed document being recorded that would clear title for all. The occupation lines of the parent tract would stand, only the location of the 20 acre tract needs refining.
jud

Cee Gee, I agree. I have thought about this a lot. It seems to me that the scrivener is (almost) never held accountable for writing an insufficient description. I think surveyor's are constantly putting their butts on the line interpreting a deed that is inadequate. It isn't just Robbilard, I have seen a number of definitions of legal descriptions that state similar language about the description being good enough to lay it out on the ground....including Black's definition.

1. NO. I have always been told "If it can't be layed out by an average surveyor then it is void

2. MABY.

3. MABY

I don't completely know.

If Grantee is occupying 20 acres obviously there is a claim there but that would have to be run to ground before you could survey it. If the property owners are sensible they will agree to figure it out.

As far as getting a Certificate of Compliance from the County Surveyor; that could be a problem. He may feel a conveyance with no description is not a legal parcel even if the owner's agree to where the 20 acres is located. I couldn't say for sure.

There is a lot of issues there to clear up before the Survey can be finalized.

"If it can't be layed out by an average surveyor...."

Then if 49.9% of us COULD do it, we shouldn't? 😉