Last time around we discussed the Rules of Construction, court-made rules for the interpretation of written documents when they are confusing, uncertain, ambiguous, or in conflict. Piggybacking that discussion, this time around we will talk about some basic deed interpretation, which often requires application of the rules of construction.
The three primary forms of deeds are, general warranty, special warranty, and quitclaim deeds. The general warranty deed affords the most protection of the title. Typically, there are five primary covenants contained in a warranty deed: 1) the seller is seized in fee; 2) the seller has the right to convey; 3) quiet enjoyment of the property; 4) the land is free from all encumbrances; and 5) to warrant and defend.
A special warranty deed has fewer protections, and only warrants to defend the title against claims brought by the grantor or anyone claiming by, through, or under the grantor. In some cases, certain claims or encumbrances on the title will be excluded from the warranty. A quitclaim deed does not convey any fee, but only the right, title, and interest of the grantor.
The deed typically has a title or a caption, which, perhaps, is the most unimportant aspect of the deed. A deed containing the above-described covenants is a warranty deed no matter the caption. Following the caption will be the names of the parties, general recitals, explanatory recitals, and consideration (not always required). Then comes the most superior clause in any deed, the granting clause. This clause is sometimes called the “grant, bargain, and sell” clause because of the typical use of those terms at the beginning of the clause. Next will be the description of the land being sold, the legal or property description followed by the habendum clause, “habendum et tenendum,” meaning “to have and to hold,” which are the typical introductory terms used. Finally, there are the covenants, if any. The habendum may explain or modify the grant, but may not contradict the grant.
The focus of deed interpretation for the retracement surveyor is usually the description. The first rule of construction when it comes to deed interpretation is to give effect to the intention of the grantor. We covered that last time. In my mind, the first rule of construction for description interpretation, which is most often ignored and violated by land surveyors and title attorneys, is “it is not the office of a description to identify the premises, but to furnish the means by which they can be identified.” Sengfeld v. Hill (Wash.1899). Stated otherwise, the description is merely a guide, it is not sacrosanct.
As prefaced in my last column, how do the rules of construction help us to solve a description that doesn’t close? Those things that are most certain are given the most amount of weight and those things that are least certain are given the least amount of weight. Utilize extrinsic evidence and your surveyor superpowers to isolate the bust and correct it. It is generally called a scrivener’s error. Don’t be a slave to a mistake, you’re better than that.
The deed description simply calls for “Lot 9 of Garfunkel’s Subdivision.” When the deed calls for a map or plat (recorded or unrecorded) everything that shows up on that map is just as if written into the deed. If the map has a legend and it shows little open circles as “set pins,” those monuments are just as if called out in the deed. In many jurisdictions called-for monuments have a superior status than uncalled-for monuments.
A junior conveyance out of a common grantor overlaps the senior conveyance. A junior conveyance must be read in the light of the senior conveyance. In other words, the senior gets what the senior was conveyed and the junior gets what’s left over. A junior conveyance out of a common grantor leaves a gap between the senior and junior estates. Where it appears that the grantor intended to divest himself of his remaining estate, there is a rebuttable presumption against grantor’s retention of a strip near one of his lines. The general rule is that the junior gets what’s left over, more or less.
Another general rule dealing with written words is that the document is to be read as a whole. If an isolated part is ambiguous, then the meaning that is in harmony with the whole is the correct interpretation. Be an expert evaluator of evidence, not merely an expert measurer.