From: DIRT - Real Estate Lawyers Listserv [DIRT@LISTSERV.UMKC.EDU] on behalf of Patrick Randolph [dirt@umkc.edu] Sent: Tuesday, January 04, 2005 5:11 PM To: UMKC Dirt Subject: Fwd: RE: [DIRT] Correction Quit Claim Deeds > >From: "Jack Murray" > > >Attached, in pdf format, are two excellent articles on corrective documents. > >Jack > >Jack Murray >Vice President-Special Counsel >First American Title Insurance Company >National Commercial Services >30 N. LaSalle Street, Ste. 310 >Chicago, IL 60602 >(312) 917-7218 >(630) 799-8706 (fax) >jmurray@firstam.com > >-----Original Message----- >From: Patrick Randolph [mailto:dirt@UMKC.EDU] >Sent: Tuesday, January 04, 2005 10:38 AM >To: DIRT@LISTSERV.UMKC.EDU >Subject: Re: [DIRT] Correction Quit Claim Deeds > >> >>From: "Uecker, James" >> >>Isn't there some benefit to re-recording the original deed? It has >>been delivered to the grantee who recorded it and presumably returned >>custody to the grantor for the necessary corrections, re-execution, >>re-delivery and re-recording. A recitation of the nature of the >>correction can also be included. >> >>As between the parties, it is the instrument which transfers the >>interest. > >Pat responds: > >In the case presented, that's not going to work. The original grantee has been taken off the "correction deed." He's dead, and his heirs are contemplating a lawsuit. > > >>James C. Uecker >>Old Republic National Title Insurance Company >> >> >>-----Original Message----- >>From: DIRT - Real Estate Lawyers Listserv >>[mailto:DIRT@LISTSERV.UMKC.EDU] On >>Behalf Of Patrick Randolph >>Sent: Monday, January 03, 2005 10:15 PM >>To: DIRT@LISTSERV.UMKC.EDU >>Subject: [DIRT] Fwd: Re: Correction Quit Claim Deeds >> >>>see my comments at end: Pat >> >>>From: "Whitman, Dale" >>> >>> >>>The Missouri Bar Real Property Committee has been asked to look at >>>the >>related question of whether there should be legislation either >>regulating or prohibitng re-recording of deeds. The following is a >>comment I prepared on this subject. I would be interested in whether >>any DIRTers have thoughts different from, or agreeing with, mine. >>> >>>Dale Whitman >>> >>>_____________________________________________________________________ >>>__ >>_________ >>> >>>I think that before we talk about legislation on this subject, we >>>ought >>to talk first about the situations in which rerecording is requested >>or desirable. >>> >>>Let me describe one possible situation, and try to provide a little >>analysis of it. Let's assume that a deed is intially recorded, but >>contains a defect, such as an inaccurate land description -- either >>one that makes no sense (e.g., it doesn't "close") or one that is >>different than the actual land that both parties intended to have conveyed. >>Nonetheless, the deed is recorded. Later the defect is discovered. >>One approach is for the grantor to simply write in (perhaps in the >>margin, or on some other blank space available on the document) the >>correction, to initial or sign the correcton, perhaps along with a >>date, and to rerecord it. >>> >>>Does this work? One can argue that if the deed is now redelivered >>>(and >>of course, re-recording it raises a presumption of redelivery), what >>has happened is, in effect, a delivery of a new deed (or perhaps, one >>might say, a new "version" of the deed). The difficulty is that there >>is nothing on record that explains exactly what the original defect >>was, and why a correction is necessary. >>> >>>My view is that, while this approach will probably work, it is not >>>the >>best practice. Instead, what I believe should be done (and what I >>have fact done several times in such situations) is to prepare a >>"correction deed" which recites the nature of the error, states what >>correction is being made, and is executed and delivered by the >>grantor. The correction deed can and should then be recorded. >>> >>>This approach eliminates the issue of whether "rerecording" of the >>original deed is proper. The correction deed is a new and different >>deed. It provides, in my opinion, a much better "paper trail" for >>future searchers and does rerecording of the original deed. >>> >>>Even the correction deed is subject to criticism. Let me illustrate >>why. Assume that the original deed stated that the "North one-half" >>of a particular section was being conveyed,. while in fact only the >>northwest quarter of the section was intended to pass. A correction >>deed can explain this, but technically it cannot "call back" the >>excess land conveyed by the first deed. If the grantor in fact owned >>the entire "north one-half" of the section, title to it will have >>passed by the original deed, and the correction deed (like a >>rerecorded original >>deed) will not put the title to the excess land back in the grantor's >>hands. However, it would form an excellent -- even an impregnable -- >>basis for an action for reformation if such is ever necessary, and it >>will certainly prevent any downstream grantee from claiming to be a >>BFP of the full "north one-half." >>> >>>The only absolutely perfect way to make a correction of a deed that >>>has >>conveyed excess land is to have the grantee deed the excess land back >>to the grantor, using a separate deed running in the reverse direction. >>However, this can be problematic if, for example, the grantee was >>subject to preexisting judgments at the time the original deed was >>delivered. Arguably those judgments would have become liens on the >>entire described parcel, including the excess land that was conveyed >>erroneously. This would cause potential problems with a reverse deed >>that reconveyed the excess land. (One can think of other sorts of >>encumbrances that might also have attached to the excess land while in >>the grantee's hands, but the judgment lien, or a mortgage containing >>an after-acquired title clause, are the most obvious and most >>automatic in their operation.) >>> >>>Sorry for this long, meandering disquisition. My point is that >>rerecording a deed is not generally a good idea, and not generally >>necessary to accomplish any worthwhile purpose. However, I may have >>missed something. So my question is this: is there any good reason, >>other than to make a correction in a previously-recorded deed, that a >>re-recordation of the deed is necessary or helpful? >> >>Pat Randolph comments: Dale - I tracked you right through the part >>where you said that the "correction deed" cannot call back a grant >>already made. But then you go on to say that it provides an >>"impregnable" case for reformation. In light of your prior comments, >>I assume this means a case for reformation against the grantor only. >>Again, the grantee under the original deed still can make a case that >>the original deed expressed the intentions of the parties. Only if >>the original grantee knowingly and voluntarily accepted delivery of >>the correction deed would that grantee be bound by a subsequent >>reformation claim. I have been in this situation before, and I always >>find it best to get the original grantee to sign the correction deed, >>regardless of the correction. One never knows . . . >> >>I'm also a bit puzzled by your statement that subsequent parties will >>always be on notice of the correction deed. In a grantor/grantee >>index, the deed would appear subsequent to the recording of the >>original deed to the grantee. Someone taking from that grantee would >>not necessarily be looking for subsequent listings of that grantee in the grantee index. >>Only in jurisdictions that viewed the mandatory chain of title search >>to be all the way to the present on every party (the "long down" >>jurisdictions) would the deed appear in a hypothetical correct title >>search. Of course, if the parties also saw to it that it was recorded >>showing the original grantee as the grantor. then it would clearly be >>in the chain of title. But I'm not sure everyone is doing that. >>They're more likely to do it, of course, if the original grantee >>executes the correction deed. >> >> >> >>>----- >>> >>>To be removed from this mailing list, please go to >>http://lists >>erv.umkc.edu/listserv/wa.exe?SUBED1=DIRT&A=1. or send an email message >>to the address listserv@listserv.umkc.edu, with the text SIGNOFF DIRT >>in the body of the message. Problems or questions should be directed to manager@listserv.umkc.edu. > > > > > >----- > >To be removed from this mailing list, please go to >http://listserv.umkc.edu/listserv/wa.exe?SUBED1=DIRT&A=1. >or send an email message to the address listserv@listserv.umkc.edu, >with the text SIGNOFF DIRT in the body of the message. Problems or >questions should be directed to manager@listserv.umkc.edu. > > > >----- > >To be removed from this mailing list, please go to http://listserv.umkc.edu/listserv/wa.exe?SUBED1=DIRT&A=1. or send an email message to the address listserv@listserv.umkc.edu, with the text SIGNOFF DIRT in the body of the message. Problems or questions should be directed to manager@listserv.umkc.edu. > ----- To be removed from this mailing list, please go to http://listserv.umkc.edu/listserv/wa.exe?SUBED1=DIRT&A=1. or send an email message to the address listserv@listserv.umkc.edu, with the text SIGNOFF DIRT in the body of the message. Problems or questions should be directed to manager@listserv.umkc.edu.