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Attempted Deed Correction by Affidavit

Discussion in 'General Land Surveying' started by Kent McMillan, Apr 22, 2011.

  1. Kent McMillan

    Kent McMillan 4-Year Member

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    The first time that I saw that a title company had attempted to "fix" a faulty conveyance - such as one omitting the "Exhibit A" that actually described the property that was the subject of the instrument - by simply adding the missing exhibit and rerecording the instrument, I raised my eyebrows.

    More recently and more frequently, I'm seeing a bizarre variation on that scenario in which the title agent executes an affidavit stating that the conveyance was mistakenly recorded with such-and-such a deficiency, but should have been recorded in the form attached to the affidavit. In other words, the actual grantor to the screwed-up conveyance is not a party to the supposed "correction". This renders the correction, of course, a nullity; merely some title agent's idea about the easiest way to make it appear that a severe defect had been fixed.

    Is this a practice elsewhere in the US as well as Texas? If this trend continues unchecked, I don't know who will be left with record title in fifty years.
     
  2. JBStahl

    JBStahl 5-Year Member

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    > The first time that I saw that a title company had attempted to "fix" a faulty conveyance - such as one omitting the "Exhibit A" that actually described the property that was the subject of the instrument - by simply adding the missing exhibit and rerecording the instrument, I raised my eyebrows.
    >
    > More recently and more frequently, I'm seeing a bizarre variation on that scenario in which the title agent executes an affidavit stating that the conveyance was mistakenly recorded with such-and-such a deficiency, but should have been recorded in the form attached to the affidavit. In other words, the actual grantor to the screwed-up conveyance is not a party to the supposed "correction". This renders the correction, of course, a nullity; merely some title agent's idea about the easiest way to make it appear that a severe defect had been fixed.
    >
    > Is this a practice elsewhere in the US as well as Texas? If this trend continues unchecked, I don't know who will be left with record title in fifty years.

    Scrivener's Affidavits, unlike a Correction Deed, are simply a statement made by the scrivener that says, oops. I forgot to do something or, I made a mistake. Mistakes are not faulty to title, when they're caught and fixed. A missing exhibit containing the description, is.

    Affidavits, because they don't involve a full Correction Deed made by the Grantor, are not binding nor are they a "nullity." They are what they are. They are evidence, often made under a statement of oath. As evidence, it is not intended to be "binding" on anyone.

    If they're not binding, what good are they? They may provide key evidence which may resolve a problem that can't be resolved without the evidence. In Kent's example, the evidence explains a serious deficiency in the title record. If there's a problem with the evidence provided in the affidavit, the grantor might have some heartburn and can easily overcome the affidavit with one of his own, or by filing a correction deed which, if delivered to the grantor and recorded, would trump the affidavit. The grantor could also get the scrivener to retract the statements made in the affidavit.

    The chances are, the matters contained in affidavit are true and can be taken a face value (prima facae). The evidence can be relied upon to resolve the issue intended to be resolved. If you're confronted with contrary evidence, then you might be concerned. Otherwise, take it for what it says.

    Looks to me as if the affidavit does precisely what it's supposed to do. They're designed for this very purpose. And, yes, they are used throughout the country and have been for years. I find them in our title records filed as "Affidavit of Correction," "Scrivener's Affidavit," "Owner's Affidavit," and "Surveyor's Affidavit," to name a few.

    JBS
     
  3. Deral of Lawton

    Deral of Lawton 4-Year Member

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    While I agree mostly with JB's comments then the majority of the time we can get both parties to do an actual corrective deed. This is rock solid compared to an affidavit by another party.

    In the case of a title company then I would be somewhat leery to take it on face value because they may just be removing something important for a sale but that still would be important on a cloud of title issue or even setbacks from easements.

    But I do agree that it's just more evidence to evaluate when doing our research.

    Perhaps a title company does the research and finds a scriveners error by examining the chain of title and adjoiners (much as we do) and the parties cannot be located to get the signatures for a corrective deed. I'm not saying this is a good way to proceed but it might save me time in my research knowing that they found a possible error.
     
  4. JBStahl

    JBStahl 5-Year Member

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    > Perhaps a title company does the research and finds a scriveners error by examining the chain of title and adjoiners (much as we do) and the parties cannot be located to get the signatures for a corrective deed. I'm not saying this is a good way to proceed but it might save me time in my research knowing that they found a possible error.

    Right on the money, there, Deral. There are many times when the original parties simply aren't available to prepare the Correction Deed. If it weren't for the Affidavit process, they'd need to have a quiet title action and a court proceeding involved just to attach a forgotten exhibit to a document. The court doesn't want to waste its time on trivialities. Make the affidavit an roll on.

    I had a title attorney suggest the other day that we needed a quiet title action to resolve a transposed bearing in a deed. The original deed was fine but, about three deeds down the chain and over fifty years ago, the transposition crept in. I recommended an Surveyor's Affidavit instead. I don't have any problem with that at all. It's a freaking typo, not a title defect.

    JBS
     
  5. Don Blameuser

    Don Blameuser 5-Year Member

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    "Is this a practice elsewhere in the US as well as Texas?"

    My experience in California is that the title companies will not deviate from the exact recorded description in any circumstance. That is, they will guarantee only what is recorded and certainly not speculate on what might have been intended. I have never seen one take on that kind of responsibility (liability).

    Don
     
  6. Dave Karoly

    Dave Karoly 5-Year Member

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    I haven't either.

    I haven't seen a Title Company record anything like that but that's just my experience.

    One time I came across a group of Deeds where apparently an exception got forgotten and the grantor accidentally transferred all of their property instead of just the portion intended. The grantee recorded a Q/C back to the grantor and a statement was added that it was done for no compensation (in order to keep the taxes from resetting way upwards, a California prop 13 oddity).
     
  7. Deral of Lawton

    Deral of Lawton 4-Year Member

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    Totally agree JB.

    If a simple affidavit fixes or at least points to an error then that is a heck of a lot better than involving attorneys and others. Sometimes a problem is really not a problem but just takes a detective to figure out the sequence and the error.

    Attorneys in our area really are not big fans of affidavits. I think it's about the money. They would much rather get involved in a quiet title action.

    The most common error I see is a simple bearing error (transposed) that is usually easily found by examining the rest of the document.

    It's called a scrivener error for a reason isn't it. Because a typist furbared the document. Not because there is a defect on the ground or with the intent of the actual deed or survey.
     
  8. Kent McMillan

    Kent McMillan 4-Year Member

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    > Affidavits, because they don't involve a full Correction Deed made by the Grantor, are not binding nor are they a "nullity."

    Yes, as a conveyance, they are a nullity since they are not executed by the record owner. For example, if a grantor executes a deed purporting to convey to a grantee a tract of land described in Exhibit "A", and Exhibit "A" is not attached to the deed. The deed is void for want of description. Some title company recording an affidavit saying that this is what Exhibit "A" should have been does nothing to fix the problem but expose the title company to further liability in that it shows that they were aware of the problem, but did nothing to fix it.
     
  9. Kent McMillan

    Kent McMillan 4-Year Member

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    > In the case of a title company then I would be somewhat leery to take it on face value because they may just be removing something important for a sale but that still would be important on a cloud of title issue or even setbacks from easements.
    >
    > But I do agree that it's just more evidence to evaluate when doing our research.
    >
    > Perhaps a title company does the research and finds a scriveners error by examining the chain of title and adjoiners (much as we do) and the parties cannot be located to get the signatures for a corrective deed. I'm not saying this is a good way to proceed but it might save me time in my research knowing that they found a possible error.

    No, obviously you guys aren't getting the picture. The common usage that I see is an attempt to reform or correct the actual conveyance by someone who is not a party to it. For example, a not uncommon one is the case where a deed is executed and describes the land subject of the conveyance by reference to an attached Exhibit "A", but there is no Exhibit "A". Title company records affidavit to which neither grantor nor grantee are a party, stating that this is what the instrument should have consisted of. About all that is evidence of is that the title company recognized that the conveyance was void for want of description and did nothing to cure it.

    I saw an even more bizarre one recently in which Grantor executes a deed conveying two 0.50-acre lake lots to Grantee. Title company six months later records an affidavit saying that only one of the 0.50-acre lots should have been conveyed and another small parcel adjacent to the one should have been included.

    A year later, original Grantor executes a deed purporting to convey to another party one of the two 0.50-acre lake lots previously conveyed. The record owner, the grantee in the deed conveying the two lots, is not a party to any of this later flurry of paper.

    So, the second grantee does not have record title, all he has is some title company insuring his title.
     
  10. Kent McMillan

    Kent McMillan 4-Year Member

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    > One time I came across a group of Deeds where apparently an exception got forgotten and the grantor accidentally transferred all of their property instead of just the portion intended. The grantee recorded a Q/C back to the grantor and a statement was added that it was done for no compensation (in order to keep the taxes from resetting way upwards, a California prop 13 oddity).

    Yes, that is the sort of thing that a title company in Texas might well try to "fix" with an affidavit by the escrow officer. The first time I saw this, I thought it was an oddity, but it is becoming pervasive among the local title companies, as if it actually accomplishes anything in regard to the problem that exists. It's a bit like MERS in that apparently the various title insurers take the affidavits given by other title companies seriously and treat them for insurance purposes as if they have cured the problem. Someday, though, someone will have to prove record title and, with an affidavit in their supposed chain of title, will be SOL.

    Since the affidavit demonstrates that the title company (a) had knowledge of the problem and (b) did nothing to either inform the insured or to fix it, I wouldn't think that it would be very difficult at all to escalate a claim for damages to a level well beyond the title insurance policy limits.
     
  11. Richard Schaut

    Richard Schaut 4-Year Member

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    It all depends on the information in the appended correction material. The affiant is responsible and liable in the event there is a problem caused by the affidavit.

    The 'safest' affidavit would be signed by both the grantor and the grantee but that is not absolutely required.

    Affidavits can be ued to establish a record as explained in the 'Use it or Lose it' article from Tierra Grande, April 2006 that will be found on www.recenter.tamu.edu; the affidavit I refer to is a claim of ownership by an adverse possessor, used in lieu of a 'suit to try title' because the only one who has standing to challenge the affidavit is the record deed holder and if they have abandoned the property, they will not challenge. When a statute specifies a time limit, as long as the affiant can prove unchallenged occupation and control for the specified time limit after the affidavit is filed, no challenge is permitted and the deed holder loses any legal claim.

    A clear knowledge of the principles of land ownership and legal fundamentals is a necessary part of the surveyors profesional knowledge because we must deal with a part of the law that is not within the lawyers capability. Remember, neither lawyers nor judges are qualified to enter onto the land, recover and analyze physical evidence that can and will challenge the record. Only the surveyor has that capability.

    Richard Schaut
     
  12. Kent McMillan

    Kent McMillan 4-Year Member

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    > It all depends on the information in the appended correction material. The affiant is responsible and liable in the event there is a problem caused by the affidavit.
    >
    > The 'safest' affidavit would be signed by both the grantor and the grantee but that is not absolutely required.


    I swear, who would have ever thought that the fundamentals were so difficult? Both you and J.B. Stahl seem to think that a deed that on its face is a nullity, that conveys nothing, can somehow be improved or corrected by an affidavit executed by some stranger to title. That is not only ridiculous, it's bizarre.

    Record title means exactly one thing in Texas. It means a regular chain of conveyances beginning with the sovereign and continuing from grantor to grantee by instrument of writing recorded in the public records unto the record owner. So, the instrument from A to B that actually conveys nothing because it is grossly defective is a fatal discontinuity in the chain of title that prevents B from proving record title simply from the instruments of record.
     
  13. paulplatano

    paulplatano 4-Year Member

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    Although I would agree with Kent, I have come across several
    deeds and pipelines in Kentucky (not named after Kent) which
    are recorded without all of the grantors' signatures.
     
  14. Dave Karoly

    Dave Karoly 5-Year Member

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    Yes that does seem like bizarre Title Company antics. A Title Company that would do that with a straight face must be run by ignoramuses.

    A Deed recorded without a description is bizarre enough. It seems obvious that the Grantor intended to convey something (especially if money changed hands) but what? Is the Title Company who screwed up this badly to begin with a good source of evidence of "what"? Doesn't seem likely.

    How would something executed by the Title Company even get into the chain of title? I don't think it can, it would be indexed under the Title Company name and be essentially a wild (not a) deed.

    The Title Company messed up the descriptions, left them out or didn't put the right ones in or some such thing which should be basic Title Company competency. So now we are supposed to believe their affadavit is not similarly disastrously messed up. How am I supposed to know the Title Company, who can't even record a Deed with the correct descriptions, somehow miraculously got it right this time? We don't even have the signatures of the grantors to have some straw to grasp, just a self-serving T.C. affidavit.
     
  15. Kent McMillan

    Kent McMillan 4-Year Member

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    > Yes that does seem like bizarre Title Company antics. A Title Company that would do that with a straight face must be run by ignoramuses.

    The title insurance business is looking for quick fixes and a "fix" over the short haul merely constitutes the absence of a claim on the policy. Over the long haul, I'd think damages for a deceptive trade practice would make the economics of quick fixes look pretty bleak.

    > A Deed recorded without a description is bizarre enough. It seems obvious that the Grantor intended to convey something (especially if money changed hands) but what?

    Yes, with no description at all, there isn't a latent ambiguity to be resolved. There is no conveyance of record to be corrected.

    > Is the Title Company who screwed up this badly to begin with a good source of evidence of "what"? Doesn't seem likely.

    Yes, an obviously self-serving affidavit from the same title company that made a mess of the original instrument, executing an affidavit when the original parties to the transaction are still around, wouldn't get my vote for anything that would be extremely reliable proof of anything.

    > How would something executed by the Title Company even get into the chain of title? I don't think it can, it would be indexed under the Title Company name and be essentially a wild (not a) deed.

    That's where the funny business enters the picture. To make the scheme even halfway work, the title company has to convince the clerk's deputy to index it under the names of the original parties as if it were a correction instrument.

    > The Title Company messed up the descriptions, left them out or didn't put the right ones in or some such thing which should be basic Title Company competency. So now we are supposed to believe their affadavit is not similarly disastrously messed up. How am I supposed to know the Title Company, who can't even record a Deed with the correct descriptions, somehow miraculously got it right this time? We don't even have the signatures of the grantors to have some straw to grasp, just a self-serving T.C. affidavit.

    Yes, exactly. And most of the insureds don't even know what has happened because the title company never bothered to mention the little glitch in the actual instrument that supposedly conveyed their property to them.
     
  16. Duane Frymire

    Duane Frymire 5-Year Member

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    Yeah, the title company has essentially insured that the seller will have no liability if and when the problem later causes damages. The protection of the recording statutes is gone due to actual knowledge of a problem by the title company and at least inquiry notice (if not actual knowledge) on the part of the buyer.

    The vast majority of "correction" deeds and affidavits I have run across merely make things worse than they were to begin with. Those authoring them don't understand the initial problem and hence the documents they prepare on the cheap don't perform the intended function.
     
  17. JBStahl

    JBStahl 5-Year Member

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    > Yeah, the title company has essentially insured that the seller will have no liability if and when the problem later causes damages. The protection of the recording statutes is gone due to actual knowledge of a problem by the title company and at least inquiry notice (if not actual knowledge) on the part of the buyer.
    >
    I would disagree, Duane. There is no "insurance policy" that says the title company has "insured" anything. Affidavits are simply statements made by an individual or a company (I doubt that the title company would claim they signed the affidavit), it's most likely an individual speaking from personal knowledge. There is nothing binding about the statements. Worst case scenario is that the statements are intentionally false, fraudulent and misleading and they might be subject to a slander of title suit.

    > The vast majority of "correction" deeds and affidavits I have run across merely make things worse than they were to begin with. Those authoring them don't understand the initial problem and hence the documents they prepare on the cheap don't perform the intended function.

    This isn't my experience at all. I would say that the overwhelmingly vast majority of "correction deeds and affidavits" are made in good faith with no intent to deceive anyone. The "correction deeds" fix legitimate errors contained in the original record which fail to properly construct the document in accordance with the original agreement. Affidavits that I find are typically right on point with the scrivener's errors or other statements made.

    These documents are designed for a purpose. They fix trivial matters and sometimes even greater problems in the best ways possible. The only alternative is an incredibly expensive and long drawn out litigation. Why on earth would we spend that kind of time, resources, and attorney power to fix a typographical error or a missing exhibit?

    It's ok to be skeptical. It's ok to confirm the statements made in the documents. It's ok to consider conflicting evidence. Let the documents stand on their own with a presumption of correctness which is given to all other documents. Don't just accept them at face value when they are confronted by contrary and better evidence. People do, on rare occasion, lie and deceive. They don't usually do it in a written document made under sworn oath and placed in the title record for perpetuity.

    JBS
     
  18. Kent McMillan

    Kent McMillan 4-Year Member

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    > Yeah, the title company has essentially insured that the seller will have no liability if and when the problem later causes damages. The protection of the recording statutes is gone due to actual knowledge of a problem by the title company and at least inquiry notice (if not actual knowledge) on the part of the buyer.
    >
    > The vast majority of "correction" deeds and affidavits I have run across merely make things worse than they were to begin with. Those authoring them don't understand the initial problem and hence the documents they prepare on the cheap don't perform the intended function.

    Yes, and anyone who believes otherwise is clearly detached from reality. The title company affidavits are the equivalent of a sort of MERS scheme that only works among the participants, not in court when held up to daylight.
     
  19. JBStahl

    JBStahl 5-Year Member

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    > I swear, who would have ever thought that the fundamentals were so difficult? Both you and J.B. Stahl seem to think that a deed that on its face is a nullity, that conveys nothing, can somehow be improved or corrected by an affidavit executed by some stranger to title. That is not only ridiculous, it's bizarre.
    >
    > Record title means exactly one thing in Texas. It means a regular chain of conveyances beginning with the sovereign and continuing from grantor to grantee by instrument of writing recorded in the public records unto the record owner. So, the instrument from A to B that actually conveys nothing because it is grossly defective is a fatal discontinuity in the chain of title that prevents B from proving record title simply from the instruments of record.

    Yea, Kent sometimes I feel like swearing too. Whenever you lump me in with Richard (in this case, he brings up some very good points which I happen to agree with) or start putting words in my mouth, or start puking you derogatory comments, I'd like to do more than swear.

    You are the one who "SEEMS TO THINK" that a deed filed in the title record which has an obvious defect (it's called a latent ambiguity), where an exhibit is referred to (which happens to contain the description of the property) and is inadvertently left off of the recording, is some how a "nullity," or "void." That's just stupid thinking. In your scenario, the grantor just got up one day and, with no forethought or intent, decided to have a document drawn up, taken before a notary, signed, sealed and recorded, purporting to convey NOTHING? The deed, itself is prima facia evidence of the intent of the grantor to sell something.

    All you have is a LATENT AMBIGUITY. An ambiguity that is apparent on the face of the document. If that's all you have, then the document would fail. However, before you can declare the document a "nullity" or "void," you must first look to the extrinsic evidence (I'm sorry Kent, there's no math involved in this part, so you probably won't understand).

    What property did the grantor own at the time of the deed? What property did the grantee take possession of after the deed was granted? What property did the grantee use as collateral for the trust deed taken out on the same day as the grant? What about obtaining a copy of the deed given to the grantee? What about getting copy of the title company or real estate agent's files and look for a copy of the buy-sell agreement? All of that extrinsic evidence would possibly provide the answer to the omitted exhibit.

    In this case, you've got an affidavit in the record. What's the time proximity? Who signed the affidavit? Who was the loan closing agent? Was the person who signed the affidavit in a position of having personal knowledge of the facts? What evidence do you have that says the affidavit (which perfectly provides a resolution to the "problem") is wrong, incorrect, misleading, false, deceptive or fraudulent? Just because your little pea brain can't recognize a solution for a problem, doesn't mean that the solution provided is not a correct one.

    I'm not saying that the title company's affidavit is the perfect solution. However, the affidavit, when coupled with the other extrinsic evidence, more than likely is sufficient. Do the research. Find more evidence, then file your own affidavit to augment the other affidavit in the record. Pretty soon, there will be enough affidavits in the record reciting every bit of the extrinsic evidence necessary to resolve the latent ambiguity to everyone's complete satisfaction (other than your own, because you seem thoroughly convinced that there's no fix available that will satisfy the perceived defect).

    JBS
     
  20. Kent McMillan

    Kent McMillan 4-Year Member

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    > You are the one who "SEEMS TO THINK" that a deed filed in the title record which has an obvious defect (it's called a latent ambiguity), where an exhibit is referred to (which happens to contain the description of the property) and is inadvertently left off of the recording, is some how a "nullity," or "void." That's just stupid thinking.

    Considering that it's a fundamental principle that a deed that describes nothing is ineffective as a conveyance, it is very Schaut-like to call that a "latent ambiguity". Thanks for the laugh.
     

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