Since we had so much fun with yesterdays thread on all the [msg=90790]ways property can change hands[/msg] how about we try a semi-related topic today.
What are all the reasons an attempted conveyance of land can fail.
- ...Grantor listed on deed did not own the land
- ...Gift deed not properly recorded within the time allowed (this in North Carolina am sure other states rules on gift deed recording may vary)
- ...Property not sufficiently described in the deed
- ...Grantee failing to "accept" the deed
This is a quick list off the top of my head. Am sure there are plenty of others. There are also plenty of subsets of the reasons listed. Adjoiners having adversely possessed the Grantors property being the reason the Grantor didn't own the property at the time being one of those.
Y'all have fun with the list.
Larry P
Grantee is not legally able to accept ownership.........minor, insane, etc.
Survey uncovers encroachment and competing claims.
> Survey uncovers encroachment and competing claims.
I hear ya Don but I count that as a subset of the first item. Grantor did not own the property he/she was attempting to convey.
The same kind of thing applies with Sr. / Jr. Rights cases.
Larry P
"Although the case law in this area is sparse, it appears that a requisite for valid title to real property is an original conveyance of public land by the State. See 3 American Law of Property, § 12:16 (1952); 73B C.J.S., Public Lands, § 188 (1983); 2 Patton on Titles, § 281 (2d ed. 1957). Absent such a conveyance, one purporting to transfer an ownership interest in such property transfers nothing, and no quantity of successive transfers by deed nor the mere passage of time will metamorphose good title from void title."
SKI ROUNDTOP, INC. v. Mary E. WAGERMAN, et al.
79 Md. App. 357; 556 A.2d 1144; 1989 Md. App. LEXIS 94
> Grantee is not legally able to accept ownership.........minor, insane, etc.
Over the years I have had plenty of people who said they wanted to convey property to under age people. So far I have been able to talk all of them out of that notion. While it is almost always a bad idea, I'm not sure the conveyance would fail just because of that.
If I conveyed a parcel to my 3 year old niece and I passed away, I'm not sure that tract would be a part of my estate. She might be unable to conduct any business concerning that land but once she came of age I think she would own the land.
Larry P
> "Although the case law in this area is sparse, it appears that a requisite for valid title to real property is an original conveyance of public land by the State. See 3 American Law of Property, § 12:16 (1952); 73B C.J.S., Public Lands, § 188 (1983); 2 Patton on Titles, § 281 (2d ed. 1957). Absent such a conveyance, one purporting to transfer an ownership interest in such property transfers nothing, and no quantity of successive transfers by deed nor the mere passage of time will metamorphose good title from void title."
>
> SKI ROUNDTOP, INC. v. Mary E. WAGERMAN, et al.
> 79 Md. App. 357; 556 A.2d 1144; 1989 Md. App. LEXIS 94
:-O Wow. Never heard of that one Jim.
Larry P
> Grantee is not legally able to accept ownership.........minor, insane, etc.
My understanding is that in these cases the Grantee has the ability to petition the courts to invalidate the contract (and will almost always prevail), but the contract is still valid as long as both parties are in agreement.
Because the land doesn't exist?
Banks v. Chicago Mill & Lumber Co.
The Frl. NE ¼ of Section 23 completely lost its identity as a result of this erosion, and it has never been restored. Since approximately 1871, and at the time the present suit was filed, no such legal description as "Frl. NE ¼ of Section 23, Township 8 South, Range 3 West, South of Arkansas River", has been in existence, and such a description has not since that time described or identified any land in place. That description had been destroyed by the river's erosion, and certainly after 1872 that description ceased to identify any land in place.
The description under which this land was forfeited and sold to the State and the description contained in the deed from the Commissioner to the Banks Estate was "Frl. NE ¼ of Sec. 23, Twp. 8 S., R. 3 W., South of River". This deed was not color of title because it did not describe any lands in place or in existence.
DDSM:beer:
Gotta roll or I'd do some research before responding. But I suspect the problem with a minor grantee might be that one condition for the validity of an instrument (deed etc. -- not a theodolite!) is that it must be acknowledged by the grantee, and I'm not sure a minor can legally acknowledge.
One variation on what's been listed is when the grantor is mentally unfit. If it can be proven it can nullify a transaction. Something I always mention when folks say they don't need title insurance because they've been to the Registry of Deeds and everything's fine.
My point wasn't that the problems exist, but that the purchasers didn't know until the survey!
Frequently the "survey" is blamed for the failure to close, not the underlying issues!
> Since we had so much fun with yesterdays thread on all the [msg=90790]ways property can change hands[/msg] how about we try a semi-related topic today.
>
> What are all the reasons an attempted conveyance of land can fail.
>
>
>
- >
- ...Grantor listed on deed did not own the land
> - ...Gift deed not properly recorded within the time allowed (this in North Carolina am sure other states rules on gift deed recording may vary)
> - ...Property not sufficiently described in the deed
> - ...Grantee failing to "accept" the deed
>
>
> This is a quick list off the top of my head. Am sure there are plenty of others. There are also plenty of subsets of the reasons listed. Adjoiners having adversely possessed the Grantors property being the reason the Grantor didn't own the property at the time being one of those.
>
>
> Y'all have fun with the list.
>
> Larry P
Deed was signed, but not in the presence of a notary.
The terms of the contract to convey the property were not fulfilled; such as the grantee failed to pay on time and in the manner prescibed; the grantor could not provide insurable title, etc.
Others:
Fraudulent conveyance
Power of Revocation
> My point wasn't that the problems exist, but that the purchasers didn't know until the survey!
>
> Frequently the "survey" is blamed for the failure to close, not the underlying issues!
True enough Don. True enough. Yet another reason we all need to do a better job communicating with our clients as to the importance of a survey.
Larry P
La Baronia de Arizonac or "Peralta Grant"
"In 1883 James Addison Reavis filed a claim for about 12 million acres of land in Arizona and New Mexico. The so-called Peralta Grant was entirely fictitious and based on forged records that were furtively inserted into the archives of Seville, Guadalajara and San Xavier del Bac. Declared fraudulent by CPLC in 1895, Reavis was convicted of fraud and sent to prison."
Spanish & Mexican Land Grants - Fred Roeder, 2001
> Grantee is not legally able to accept ownership.........minor, insane, etc.
A court can appoint a 'guardian ad litem' to protect the interests of a minor or mentally deficient entity, thus conveyance is valid.
A conveyance can fail if the grantee does not take actual possession, by themselves or an agent, of the property and some one else does take possession in compliance with the provisions of adverse possession.
Richard Schaut
Wild Deeds...
>"Because the Tingeys had no record title to the Property when they transferred it to Metro West, the conveyance was carried out through what is commonly referred to as a "wild deed." See Poladian v. Johnson, 85 So. 2d 140, 140 (Fla. 1955) (en banc) ("A 'wild deed' is one executed by a stranger to the record title . . . ."); 11 Thompson on Real Property, Thomas Edition, § 92.11(c)(David A. Thomas ed., 1994) ("[A] 'wild deed' [is one] executed by a grantor with no record ownership of the interest . . . ."). Few courts have addressed whether a purchaser who acquires title through a wild deed takes free of an unrecorded interest in the same property under the recording statutes. However, at least one commentator has expressly noted that a purchaser who takes title through a wild deed is not the type of purchaser that recording statutes protect. See Joyce Palomar,Patton and Palomar on Land Titles, §10 (3d ed. 2003) ("[T]he term 'bona fide purchaser' as used in recording acts does not include one who buys from a stranger to the record."). And the majority of courts that have addressed the issue have held that a purchaser who receives property through a wild deed is not entitled to take free of an unrecorded interest simply by virtue of having recorded a purported conveyance of title executed by a stranger to the record title. See Holland v. Hattaway,438 So. 2d 456, 470 (Fla. Dist. Ct. App. 1983) (noting that because "recording statutes do not support or validate a wild deed or any conveyance of an interest that the grantor does not have," an appellant whose chain of title traced back to the sovereign had superior interest over an appellee who could only trace title to a wild deed executed by a stranger to the record); Zimmer v. Sundell,296 N.W. 589, 591 (Wis. 1941) ("If one who has no title under the laws governing conveyances is to have a superior one under the recording acts, it should be because he has relied upon the record, and when he purchases from one who is a stranger to the record title he has no grounds for such reliance."). But see Hyland v. Kirkman, 498 A.2d 1278, 1284, 1289, 1295-96 (N.J. Super. Ct. Ch.Div. 1985)." Salt Lake County v. Metro West Ready Mix, Inc., 89 P.3d 155, 2004 UT 23 (Utah 03/23/2004)
JBS
Wild Deeds...
There are situations where an adverse possessor who fails to file an affidavit recording his title defeats his own valid sale to a buyer by such failure.
Remember, an affidavit of title can only be challenged by a deed holder, not a title ins. co. or buyer's attorney. Therefore a 'suit to try title' is not necessary.
We are only dealing with an apparent break in the chain of title and here in the US, there is no need to go back to the 'soveriegn grant' because the gov' patent does not convey title, it merely identifies who has standing to establish title.
There is a lot of good material in Gates, "History of Public Land Law Development" that highlights the difference between land titles from feudal and allodial systems. Feudal principle do crop up in the US legal system when dealing with land and those principles are not applicable in our system, part of the reason Justice Berger stated that our system is no longer acceptable for a civilised society.
Richard Schaut
One case I remember hearing about involved a break in the chain of title due to a divorced or separated couple, and only one of the two signing the deed.
Both parties have to be legal people. A corporation is a legal person, but a 15 year old of flesh and blood usually is not. The conveyance fails. The conveyance can never be revived, but the property may make its way to the intended party by other means at a later date. Generally speaking of course.
On a related note, usually that deed to a minor (or anyone else in the family) that grandpa put in the safe for transfer at a later date, fails. Generally has to be a present intent to transfer (not an idea that it might at some point in the future). Present offer, acceptance, legal people, consideration, description, etc..
Yikes, lots of ways for failure of conveyance. It's an interesting subject and the court cases related are a bunch of fun to read. It's truly amazing the position people get themselves into sometimes (even with attorney advice).
