Title Tips by Tute
Volume 6, Number 2
An inquiry from a reader. Tute is ecstatic!! I don't know the answer, but, by all means, keep those cards and letters coming.
To Whom It May Concern:
I would forward the enclosed quitclaim deed (?) to you for your regular column on interesting documents. Although the title, first and second paragraphs of the deed declare to be quitclaim, the last paragraph appears to grant with the Usual English Covenants of Title. Which is it?
(The names have been changed to protect the innocent.)
QUIT CLAIM DEED
THIS QUIT CLAIM DEED, made this ___ day of _____, 1985, by and between I. M. Trustee, Trustee, Grantor, Party of the First Part; and Bona Fide Purchaser, Grantee, for his sole, separate and equitable estate, Party of the Second Part;
W I T N E S S E T H:
That for and in consideration of the sum of Ten Dollars ($10.00) in hand paid, the receipt of which is hereby acknowledged, the said Party of the First Part does hereby remise, release and forever quitclaim unto the said Part of Second Part, for his sole, separate and equitable estate, all of the Grantor's right, title and interest in the following described property, situate and being in the County of Loudoun, State of Virginia, to wit:
Lot X, Section A, of the Division of the land of PGA and ECU, Trustee, JV, as the same is duly dedicated, platted and recorded in Deed Book YYY, at Page ZZZ, and as rededicated in Deed Book AAA, at page BB, among the land records of Loudoun County, Virginia.
AND BEING, the same property conveyed to Grantor by deed dated the ___ day of ____, 1985, and recorded the ___ day of ______, 1985, in Deed Book CCC, at page DDDD, among the land records of Loudoun County, Virginia.
This conveyance is made subject to all recorded agreements, restrictions, easements, rights-of-way and conditions as they may lawfully apply to the real estate hereby conveyed or any part thereof.
The Grantor covenants for himself, his heirs, successors and assigns that he has the right to convey the within described property unto the Grantee; that the Grantee shall have quiet possession thereof; that the Grantor has done no act to encumber the within described property except as herein state, and that the Grantor will execute such further assurances of title as may be requisite.
WITNESS the following signature and seal:
I. M. Trustee, Trustee
<normal acknowledgment follows>
This is a classic example of why anyone who drafts or reviews title documents should be very careful in their preparation and review of documents. In a word processor era, it is entirely too easy to
"doctor" an existing form, and end up with problems.
As a matter of custom and practice, Tute believes it is still customary for most contracts to require, and most sellers to provide, a general warranty deed. It is also the custom for fiduciaries, such as foreclosing trustees under a deed of trust, or title-holding trustees under a deed in trust, to convey with special warranty. Only New York and Philadelphia lawyers (and those working for the Justice Department of the U S of A) think it is proper or civilized to convey without warranty. To the best of my knowledge, there is no standard set by statute or case law, and the warranty of title is generally governed by the contract between the parties. Our recording statute provides its protections to the lowly quitclaim deed, just as it does to the more munificent general warranty. It must be noted that Title Examiners do view the quitclaim with a more jaundiced eye than the General Assembly.
Every (i) such contract in writing, (ii) deed conveying any such
estate or term, (iii) deed of gift, or deed of trust, or mortgage
conveying real estate or goods and chattels and (iv) such bill of sale, or
contract for the sale of goods and chattels, when the possession is
allowed to remain with the grantor, shall be void as to all purchasers for
valuable consideration without notice not parties thereto and lien
creditors, until and except from the time it is duly admitted to record in
the county or city wherein the property embraced in such contract, deed or
bill of sale may be. The fact that any such instrument is in the form of
or contains the terms of a quit-claim or release shall not prevent the
grantee therein from being a purchaser for valuable consideration without notice, nor be of itself notice to such grantee of any unrecorded conveyance of or encumbrance upon such real estate goods and chattels. Virginia Code § 55-96(A)(1).
Deeds recorded pursuant to Code § 55-96 constitute constructive notice to subsequent purchasers. The titles they take are subject to whatever adverse conveyances or encumbrances they should have discovered in a proper search of the records. A prudent search would have disclosed to [purchaser those items appearing] in the chain of title through which they claim.
Faison v. Union Camp, 224 Va. 54, 294 S.E.2d 821 (1982).
Warranties of title are covered in §55-70, et seq, of the Virginia Code. The words
"with general warranty," in the granting part of any deed, shall be deemed to be a covenant by the grantor "that he will warrant generally the property hereby conveyed." The words "with special warranty," in the granting part of any deed, shall be deemed to be a covenant by the grantor "that he will warrant specially the property hereby conveyed." The words "with English covenants of title" or words of similar import, in the granting part of any deed shall be deemed to be an expression by the grantor of those covenants set out in §§ 55-71 through 55-74, inclusive, and in addition thereto the covenant that he is seized in fee simple of the property conveyed.
There was no additional information regarding other matters affecting the title. It would be interesting to know if this was a land trust or a foreclosure situation. Were there any warranties of title in the instruments in the chain of title leading into the seller? Were there any subsequent conveyances, and with what sort of warranty? Is there anything
"wrong" with the title, in which this question becomes a critical issue (do we name the grantor in our suit against all our predecessors in title?)
The kindest thing to say about this deed is that it is ambiguous. Unfortunately, there are two kinds of ambiguity in Virginia (No, not the kind caused by lawyers, and the kind caused by everyone else!), a patent ambiguity and a latent ambiguity.
To be ambiguous, language "admits of being understood in more than one way or refers to two or more things simultaneously . . . [or] is difficult to comprehend, is of doubtful import, or lacks clearness and definiteness," the indispensable elements of ambiguous language.
Stuarts Draft Shopping Ctr. v. S-D Assoc., 251 Va. 483, 468 S.E.2d 885 (1996), citing
Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)
It is elementary that when language in a deed or other instrument is to be construed, "[t]he grantor's intention, as expressed in the instrument, must prevail unless contrary to some principle of law or rule of property."
Austin v. Dobbins, 219 Va. 930, 936, 252 S.E.2d 588, 592 (1979). The instrument should be examined as a whole in order to determine the controlling intention.
Fitzgerald v. Fitzgerald, 194 Va. 925, 929, 76 S.E.2d 204, 207 (1953). Here, the ambiguity consisted in uncertainty concerning the subject matter to which the language was intended to apply. This is a traditional reason warranting the admission of extrinsic evidence to identify, explain, or define the subject matter of a grant.
Klingstein v. Vaughan, 149 Va. 147, 153, 140 S.E. 275, 276 (1927); Midkiff v.
Glass, 139 Va. 218, 225, 123 S.E. 329, 331 (1924). Without parol evidence, it is frequently impossible to give effect to the intention of the parties concerning the subject matter to which their language was intended to apply.
South & W.R. Co. v. Mann, 108 Va. 557, 560, 62 S.E. 354, 355 (1908).
Allen v. Green, 229 Va. 588, 331 S.E.2d 472 (1985).
Where, upon undertaking to locate the land described in a deed, it clearly appears that what was more or less a latent ambiguity becomes a very apparent ambiguity between the general and particular description, it is the duty of the court to ascertain the intention of the parties as gathered from the description as applied to the land itself in the light of circumstances surrounding the parties.
Smith v. Bailey, 141 Va. 757, 127 S.E. 89 (1925).
Extrinsic evidence of facts and circumstances is always admissible to explain the meaning of words used by the testator and to aid in resolving ambiguities, whether patent or latent. . . . Extrinsic evidence of declarations of intent is admissible to aid in resolving ambiguities, whether latent or patent, only in the case of an equivocation. . . . An equivocation exists "where the words in a will describe well, but equally well, two or more persons, or two or more things." . . . Where an equivocation exists, "all extrinsic statements by a testator as to his actual testamentary intentions - i.e., as to what he has done, or designs to do, by his will, or as to the meaning of its words as used by him" are admissible to show which person or thing he intended.
Baliles v. Miller, 231 Va. 48, 340 S.E.2d 805 (1986)
Parol evidence cannot be considered to explain a patent ambiguity, that is, to supply the understanding that parties could have reasonably been expected to reach where the language of the instrument reflects no understanding; only when the ambiguity is not self-evident from the writing, that is, where there is a latent ambiguity, is the use of parol and other extrinsic evidence permissible to aid the trier of fact in determining the intention of the parties.
Galloway Corp. v. S.B. Ballard Construction, 250 Va. 493, 464 S.E.2d 349 (1995)
Based on the preceding opinions, Tute has the feeling that, if the question of whether or not, and to what extent, a warranty of title existed, a court would allow extrinsic testimony, but not testimony as to what the parties intended. The court might infer that intent from the usual customs and practices and read it into the
"four corners" of the document, but this patent ambiguity should have been caught by drafter, or by the recipient. Since the language is clearly contradictory, but is not a
"hidden" ambiguity, the court may not inquire into the agreement the parties thought they had, but interpret the instrument as a matter of law.
Congratulations to RLG for the "eagle eye."
Why do we still bother to do title examinations? It seems like I learned one way to do them, but lately all I hear about is
"Shorten the exam period," "Don't read the books, rely on the indices,"
"Take a short cut here, don't go there."
Call me "Slowpoke"
I deeply sympathize with your lament. Title examination is suffering the fate of many other crafts and art forms. It is being forced to cost justify itself. It is a cruel economic world out there, and the consumers who don't know how much time and effort you put into your job don't see why it should cost what it does. I'm not sure I can help with that problem, but the quotes from the following cases might serve, if you don't use them too often, to justify a little more time than your
"efficiency expert" boss might have wanted to allow.
This Court repeatedly has held that [the betterments statute] has no application to a party who is not a bona fide purchaser, and that a person with notice, actual or constructive, of infirmity in the title cannot recover compensation for permanent improvements made on the premises.
Butler v. Hayes, 254 Va. 38, 487 S.E.2d 229 (1997); Richmond v. Hall, 251 Va. 151, 157, 466 S.E.2d 103, 106 (1996);
Richardson v. Parris, 246 Va. 203, 206, 435 S.E.2d 389, 391 (1993); Kian v.
Kefalogiannis, 158 Va. 129, 132, 163 S.E. 535, 537 (1932). Whenever there is a duty to inquire, the party bound to inquire is affected with knowledge of all that would have been discovered had the party performed the duty.
Richardson v. Parris, 246 Va. 203, 206, 435 S.E.2d 389, 391 (1993); Kian v.
Kefalogiannis, 158 Va. 129, 132, 163 S.E. 535, 537 (1932).
A purchaser of land is bound, not only by actual, but also by constructive notice, which is the same in effect as actual notice, and he has no right to shut his eyes or his ears to the information, and then say that he is a bona fide purchaser without notice.
Richmond v. Hall, 251 Va. 151, 466 S.E.2d 103, (1996). You are the purchasers eyes and ears.
The . . . chain of title begins with [a] conveyance . . . . All the deeds in [the] chain [are] duly recorded. Deeds recorded pursuant to Code § 55-96 constitute constructive notice to subsequent purchasers, and the titles they take are subject to whatever adverse conveyances or encumbrances they should have discovered in a proper search of the records. See
Chavis v. Gibbs, 198 Va. 379, 94 S.E.2d 195 (1956). "Every prudent man about to purchase land searches the records to see whether the property has been previously conveyed or encumbered."
Pillow v. Southwest, &C., Imp. Co., 92 Va. 144, 152, 23 S.E. 32, 34 (1895). Had the appellees conducted a prudent search, they would
have found, as we have found, that the [defect complained of was] . . . in the chain of
title through which they claim. Faison v. Union Camp, 224 Va. 54, 294 S.E.2d 821 (1982).
It is an established rule in Virginia, that where a party purchases an estate which is subject to the right of another, and that right is shown by the chain of title papers, the purchaser is charged with notice of all that the title paper or papers to which they refer may disclose upon complete examination.
Chavis v. Gibbs, 198 Va. 379, 94 S.E.2d 195 (1956) citing to Effinger v.
Hall, 81 Va. 94, 105 (1885); Burwell v. Fauber, 62 Va. (21 Gratt.) 446 (1871);
Virginia Iron Coal & Coke Co. v. Roberts, 103 Va. 679, 685, 49 S.E. 984 (1905), and authorities there cited."
Saffell v. Orr, 109 Va. 768, 64 S.E. 1057 (1909).
And that, Oh Best Beloved, is why we examine titles, and not just skim the indices.