Chapter 19 - § 19.4 • REQUISITES
| Jurisdiction | Colorado |
§ 19.4.1—Writing
C.R.S. § 38-10-106 provides:
No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands or in any manner relating thereto shall be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing.
A parol gift of an interest in real property is good in equity, as a sale, only when valuable improvements have been made in reliance upon the gift, so that to refuse to enforce it would be inequitable.33
§ 19.4.2—Caption
A caption or title of an instrument is no part of the instrument itself.34 The fact that the word "option" appears in the caption of an instrument does not mandate a determination that the instrument is an option contract.35 However, an oil and gas or mining lease containing an option to purchase must state, in the title or heading, "Oil and Gas Lease with Option to Purchase" or "Mining Lease with Option to Purchase," or equivalent words. Failure to do so renders the option voidable at the option of the lessor.36 With this exception, Colorado has no requirements for the captions of deeds or other conveyancing documents.
§ 19.4.3—Parties
To every deed there must be two parties, one capable of conveying and the other of receiving.37 Nevertheless, by statute, a grantor or transferor in an instrument of conveyance creating an estate in joint tenancy may also be one of the grantees or transferees therein.38 The typical situation contemplated by the statute is one where a husband and wife holding property as tenants in common convey to themselves as joint tenants. It is also possible, apparently, for one joint tenant to convey his or her interest in the property to himself or herself as a tenant in common and thus sever the joint tenancy.39 Whether a deed without the name of a grantee is void or merely voidable, it is invalid for any purpose, and does not pass any interest, until the name of the grantee is inserted.40
§ 19.4.4—Designation and Identity of Grantor
The name of the grantor should appear in the body of the deed, although not necessarily in the granting clause.41 It should appear that the grantor is the same person as the record title holder.42 For example, a quitclaim deed executed by a shareholder does not convey property owned by a corporation.43
Name Variations
The rules regarding variances between the name of the record title holder and the name of the grantor in a deed have been summarized by Patton and Palomar as follows:
[W]here the surname is preceded by a letter or letters, there is no presumption that they are merely initials, and not in fact the Christian name itself.44 Therefore, except to the extent that the rule has been changed by statute in some states, the identity, for example, of A.B. Blanchard with Arthur B. Blanchard may not be presumed.45
It is general practice for examiners today to require additional evidence of identity when the records show a difference in middle names or initials or show their insertion in only one of two otherwise similar names. On the other hand, it seems to be customary to consider the use of an initial in one as an authorized abbreviation for a full middle name in the other instrument.46
Historically, individuals were known by one name only.47 The common law recognized but two names of an individual, the family or surname and the given or Christian name. Under this rule, the middle name, names, or initials were disregarded and any discrepancy was immaterial.48 In Colorado, however, "The middle name or the initial of a middle name appearing in a name contained in an instrument affecting the title to real property or in a signature or an acknowledgment shall be deemed prima facie to be a material part of such name."49
Colorado has adopted a statute50 which cures several of the situations mentioned by Patton and Palomar. The provisions of the statute apply to real property documents filed or of record on or after the effective date of the act as amended effective August 6, 2003.51 Prior to that date, in situations (i), (ii), and (iii), below, if both instruments had been of record for a period of more than three years in the office of the clerk and recorder of the county in which such real property is situated, the variance would not have destroyed or impaired the presumption of identity.52 In situations (iv), (v), and (vi), below, if both instruments had been of record for a period of more than 20 years, the variance would not have destroyed or impaired the presumption of identity.53 The situations addressed by the statute, with examples, are the following:
(i) Full first name in one instrument and initial letter of first name in the other:
(A) John Smith/J. Smith54
(B) John S. Smith/J.S. Smith55
(ii) Full middle name in one instrument and initial letter of middle name in the other:
(A) John Stuart Smith/John S. Smith
(B) J. Stuart Smith/J.S. Smith
(iii) Initial letter in the middle name in one instrument and the absence of that letter in the other:
(A) J.S. Smith/J. Smith
(B) John S. Smith/John Smith
The foregoing are the three statutory situations. The statute also provides for combinations of these situations:
(iv) Full first name in one instrument and initial letter of first name in the other, and full middle name in one instrument and initial letter of middle name in the other—(i) plus (ii):
(A) John Stuart Smith/J.S.Smith56
(B) J. Stuart Smith/John S. Smith57
(v) Full first name in one instrument and initial letter of first name in the other, and initial letter in the middle name in one instrument and the absence of that letter in the other—(i) plus (iii):
(A) John S. Smith/J. Smith
(B) J.S. Smith/John Smith58
(vi) Full middle name in one instrument and initial letter of middle name in the other, and initial letter in the first name in one instrument and the absence of that letter in the other—(ii) plus (iii):
(A) J.S. Smith/Stuart Smith
(B) J. Stuart Smith/S. Smith
The statute is applicable to birth certificates, death certificates, and marriage certificates.59
The following situations are not cured by the statute:
(vii) Full first name or initial in one instrument and absence of that name or initial in the other:
(A) John Stuart Smith/Stuart Smith
(B) John S. Smith/S. Smith60
(C) J.S. Smith/S. Smith
(D) J. Stuart Smith/Stuart Smith61
(viii) Full middle name in one instrument and absence of that name in the other:
(A) John Stuart Smith/John Smith, J. Smith
(B) J. Stuart Smith/J. Smith, John Smith
(ix) Initial letter of first name and absence of middle name or initial in one instrument, and initial letter of middle name and absence of first name or initial in the other:
(A) J. Smith/S. Smith62
The observations made below under the heading "Idem Sonans" regarding a computer search of the indexes as opposed to a search of the actual index books is likewise applicable to these name variations.
A name variation, whether or not cured by the Colorado statute, may be cured by the signature or the acknowledgment. For example, if title stands in the name of John Stuart Smith, title would not be unmarketable if a deed named John Smith as the grantor but was signed and acknowledged by John Stuart Smith, regardless of how long the instrument had been of record.63 The same rule would apply, it would seem, if a deed named John Smith as the grantor, was signed by John Stuart Smith, and was acknowledged by John Smith.
Similarly, an apparent variance between the name of the person named as grantor and the name of the person signing the deed may be cured by the recital accompanying the signature. For example, if a deed names John Stuart Smith as the grantor but is signed and acknowledged by John Smith, the signature being accompanied by some recital such as "the grantor has executed this deed, etc.," the identity of the grantor with the person signing the deed may be taken as established.
Omission or insertion of the word "The" as a part of the name of a corporation does not affect marketability.64 Use of the abbreviations Co., Ltd., Inc., or Corp., or their full forms, does not affect marketability.65
Idem Sonans
The doctrine of idem sonans is that, where two names are spelled differently, but sound alike in their pronunciation, they are regarded as the same.66 In the matter of names, orthography is not important if the sound is the same.67 If two names, according to the ordinary rules of pronouncing the English language, may be sounded alike, without doing violence to the letters found in the variant orthography, then the variance is, prima facie at least, immaterial.68 The variant orthography must be such as to tend at least to mislead the opposite party, to his or her prejudice.69
--------
Notes:
[63] 1 Patton and Palomar, Land Titles § 79 (3d ed. 2003).
[64] Colo. Title Standard No. 6.3.1. But see Rev. St. 1908, § 846: "[T]he corporate name of every corporation hereafter organized (except for banks and corporations not for pecuniary profit), shall commence with the word 'the' . . . ." This provision was repealed by [1919] Colo. Sess. Laws, ch. 105, § 1, p. 347.
[65] Colo. Title Standard No. 6.3.2.
[66] Bloomer v. Cristler, 123 P. 966 (Colo. App. 1912) (Brooke and Brooks not equivalent).
[67] Marr v. Wetzel, 3 Colo. 2 (1876) (Lewis and Louis equivalent; commission to take deposition); Moore v. Allen, 57 P. 698 (Colo. 1899) (Waltimore and Waldemar not equivalent); Collins v. Farmers' Alliance Mut. Fire Ins. Co., 70 P. 698 (Colo. App. 1902) (Colin and Collin equivalent); Webster v. Heginbotham, 129 P. 569 (Colo. App. 1913) (Munson and Monson equivalent); Gibson v. Staghorn Cattle Co., 141 P. 507 (Colo. App. 1914) (Newberry and Nuberry equivalent).
The doctrine of idem sonens arose at a time when title examinations...
To continue reading
Request your trial