Volume 14 Number 1
Title Tips by Tute
Tute is bereft of ideas . . . and topics . . . and words. I’m so verklempt. Talk among yourselves. I’ll give you a topic . . . constructive notice and indexing. How can you have the first when you don’t have the second?
Idle Musings from an Ivory Soapbox Tower
I suspect a certain southeastern Virginia clerk’s office will be relieved to learn that I am not thinking about their almost legendary status. Philadelphia “in the day” still has you beat. Just remember the Philadelphia Recorder of Deeds did not voluntarily retire.
Tute recently heard of a case in a southeastern Virginia city (but not the one with the backlog of unindexed instruments) which hinged on indexing and cover sheets and, well, for lack of a better word, mistakes. Under the heading of “I heard it, but I don’t remember where or when,” is a similar case hailing from northern Virginia. Readers are invited to fill in the missing details. Both situations involved missed deeds of trust.
In southern Virginia, it was a simple mistake . . . the borrower’s name on a deed of trust was spelled correctly; but on the cover sheet, a letter was missing. In northern Virginia; there were two deeds of trust using the borrower’s given name, and one using her familiar name, a nickname if you will. As you might suspect, in northern Virginia, the cause of action was against the examiner. In the southeast, the wrongdoer was alleged to be the clerk.
There is a peculiar feature of Virginia’s constructive notice statute of which examiners may well blissfully ignorant. Indexing is not required. “What?” I hear you saying, “five thousand books of deeds and the clerk is not required to index?” That’s not exactly what I said . . . notwithstanding the mandate in §17.1-249 to index, that mandate is divorced from the concept of constructive notice. I direct your attention to Beverly v. Ellis, 1 Rand. (22 Va.) 102, Davis v. Beazley, 75 Va. 491, Florance v. Morien, 98 Va. 26 (1900) and Virginia Building and Loan Co. v. Glenn, 99 Va. 460 (1906). Construing the registry statutes from 1819 to the early 1900s, the court found, repeatedly, “the failure of the clerk to index [the document] does not affect its validity as notice to subsequent purchasers.
In the Code of 1919, the legislature finally linked the “key” to the land records, and required “admission to record” and “indexed as required by law” for recordation to be efficacious. In 1922, “with full knowledge of the change wrought in the registry act” in 1919, and “the reasons therefore,” the General Assembly deleted the indexing requirement. If Jones v. Folks, 149 Va. 140 (1927) were a criminal law opinion, I’d almost expect to hear the phrase “willfully, and with malice aforethought.” So, what is a title examiner supposed to do?
Not for the first time in these columns, Tute is reminded of the wisdom of Sgt. Phil Esterhaus, the kindly top sergeant at the Hill Street precinct . . . “Let’s be careful out there.” The southern Virginia case made a big deal out of the use of the cover sheet – and the “automatic” data entry that follows. I don’t know how “automatic” that data entry is. In that same community, Tute foolishly attempted to count the number of indexed permutations for the local redevelopment authority . . . I lost count at 104. Seriously. From both before and after the appearance of cover sheets. For that, a clerk ought to be sued; but for leaving off the last letter in the name of a borrower, whose name was also indexed four ways using the correct spelling. Give me a break.
Every title examiner knows (don’t they?) that with a long a complicated name, the best computer search strategy is a minimalist one . . . put in the fewest number of letters that will get the name. If you are running the patriarch of the “Manischewitz” family, enter “manis” and you don’t have to worry if the document was prepared phonetically by spelling the name “Manishevitz.” Welcome to the concept of idem sonans, a principal of the common law dating back to the days when spelling was not as strongly encouraged in our public schools. “While the doctrine of idem sonans may be invoked to cure immaterial variations in the spelling of a name . . . , the combination of letters and syllables must produce the same sound as the true name.” Steinman v. Jessee, 108 Va. 567 (1908). Obviously this approach doesn’t work if the error is made in the first letter of the name.
What else can we do? First, be alert for obvious errors. Point them out to the clerk or deputy. Ask that they be fixed. We’re talking about the keys to the kingdom here. Make sure they work.
An examiner who looked at the documents during the recording process might notice a discrepancy between the cover sheet and the document. Or maybe between the name as spelled on page one, and as spelled in the signature block/notary clause. (Yes, the drafter, or closer should have seen it first . . . but the title examiner is the thin blue line between society and chaos. Freedom is important, safeguard it. And stop whining.) Get it right and then get it recorded.
Then there are those “conventions of indexing” that someone who never did a title might not know about. Things like not putting the “The” up front even if it is part of a corporate name because no clerk has (or should have – quick, call my errors and omissions insurer) indexed on “the” in a hundred years. Like setting up the indexing fields so the “John Doe Company” is indexed in the “J”s and not the “D”s. Like using “also known as” or “sometimes known as” when there are already two or three permutations of a name.
The General Assembly could fiddle with the statue again, and require proper indexing, to be enforced by removing any pretence of sovereign immunity from the land records process. The land records could emulate the UCC, in which the name must match the name on the organizational documents, or it is not effective. Human naming ingenuity, the embarrassment over what one’s parents did to them (name him Bill or George, anything but Sue!), and the difficulty of finding a birth certificate when you really need it, militates against that strict a standard.
Or, as has been the case for as long as I’ve been pulling books and punching buttons, the title examiners will keep finding the trouble spots in the land records, sharing the details with other examiners, and keeping the world safe for democracy. Let’s All be careful out there.
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