Deed of Trust description did not match the current deed of record.
Heads up, guys. This may be “old hat” to some, but I rarely encounter this situation.
Last year, I completed an 80-acre boundary survey, where the corner of the main parcel had a cut-out of 3 acres for the landowner’s daughter. The 3-acre cut-out had a house on it, and the description read a little “odd,” but I ran with what I had, which was the 80-acre parcel description that had been surveyed, and the 3-acre out-parcel with the odd description. The courthouse records had two descriptions listed, and I got copies of both. The first one was a warranty deed for 3 acres, and the second was a deed of correction for 2.4 acres. Upon plotting both of the descriptions, there was a 131-foot “bust” in the first warranty deed description, and the correction warranty deed “fixed” the bust by removing a bearing (to the nearest second) and a distance (nearest foot, more or less) on one of the boundaries to the phrase “run thence in a northwesterly direction to the road right of way”, and changing the distance on the east boundary. I immediately looked at who generated the “correction deed” and figured out that the attorney who wrote the description did so without the benefit of a survey, and has been known to do this on many occasions. Even the correction deed contained errors! To complicate things more, a neighbor had moved two of the 14 markers I tied in to on the 80-acre boundary, which I caught and compensated for. One was about 6-1/2 feet out, the other was about 30 feet out! As an afterthought, both moved markers were not driven to ground level like the rest of the markers, so I had suspected something was up when one was not where I calc’ed it to be, and the other was pointed out to me by the person that moved it. It just “looked” different. This one was not a boundary corner, but a “turn” corner on an adjacent property owner that also cornered with the pin mover’s corner. “Out of position” was noted on the plat along with deed versus measured calls.
Back to the 3-acre / 2.4 acre dilemma: An attorney called last month inquiring about the survey and the Deed of Trust that went with the house. Come to find out, a Deed of Trust was created using the old, original warranty deed that had the 131-foot bust in it, and it was under foreclosure. The lending agency was wanting to know more about their 3-acres, and why it did not match my survey, which conformed more to the newer correction deed. Someone had failed to update the deed of trust description, but I suspect that the lending agencey had assessed the value of a 3-acre parcel with a residence and someone – landowner or lending agency – probably would not / did not want to go with a lesser value 2.4 acre parcel. I am not sure of the reasoning behind not updating the description on the deed of trust, but I learned another lesson in my 40+ years of surveying.
Most of the time, a deed of trust is created by using the survey description of the whole parcel, or a surveyed out parcel from a larger parcel, and is typically used as collateral along with a proposed or existing residence with a lending agency. Bank loan surveys are typically reasons for creating a deed of trust by using the land as one of the valued assets. Most of the time, the deed of trust is the same as a warranty deed, and I usually do not check those unless the attorney specifically asks for it or instructs me to use the deed of trust as a basis for the survey. I found out later (lesson learned) that sometimes the descriptions do not match. I had pulled the deeds of history (chain of title for a few years back), and caught the discrepancy between the warranty deed and the correction deed. I rarely, if ever, pull the deed of trust unless there is a specific reason to do so. It is indeed a rare occurance where they do not match, and this one did not. So, I went back and “fixed” my survey to where the 80-acre landowner could sell that part of his 80 acres that did not include the erroneous 3-acre / 2.4 acre parcel lines, or create any cloud on title for the remainder large parcel. After talking to the attorney, it was decided that this was the best, or quickest route to go at this time, and will recommend that the property line between the two parcels be corrected by an exchange of deeds at a later date. This solution did increase the 3-acre / 2.4 acre parcel to 3.2 acres, which is about 0.8 acre less that what the new buyer was expecting. The foreclosure people will get an extra 0.2-acres, “more or less.” Family problems now may prevent the correction any time soon, but maybe the future landowners will be able to work something out.
Live and learn…………………………………..
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