§5.5 - Elements of a Valid Deed

• Jurisdiction: Washington

§5.5 ELEMENTS OF A VALID DEED

To be valid in Washington, a deed must contain the elements set out below.

(1) Writing

A deed must be in writing and bear the signature of all grantors. RCW 64.04.020.

(2) Grantor

A deed must identify a grantor, and the grantor must be a legal entity. It is not sufficient for the grantor merely to execute the deed. The deed must also identify the grantor in the body of the instrument itself. Cordano v. Wright, 159 Cal. 610, 115 P. 227 (1911).

To impart constructive notice, the name of the grantor identified in the deed must be the same or substantially similar to the name in which the grantor took title. Otherwise, the conveyance might fall outside the chain of title and not impart constructive notice of the estate or interest acquired by the grantee. Koch v. Swanson, 4 Wn.App. 456, 481 P.2d 915 (1971).

If the grantor's name has changed since title was acquired, or if title is being conveyed by a trustee, guardian, personal representative, or other successor in interest, reference must be made in the grantor clause to the name change or succession. Without such a reference, the chain of title will not be complete, and the record will not impart constructive notice to subsequent purchasers. Although a deed delivered to the grantee by the true owner under any name may be sufficient to convey title, it will not be marketable unless there is substantial identity between the name of the grantor in the deed and the record owner at that time. Wilson v. White, 84 Cal. 239, 24 P. 114 (1890).

The vested owner may give a power of attorney to another individual for the purpose of executing a deed. This does not change the vesting or the name of the grantor, but merely allows the attorney in fact to execute the deed. The grantor clause in the deed still must show the name of the principal.

Also, errors like the omission of a middle name or initial in the grantor clause are usually immaterial. When record title reflects a middle name or initial that, through a scrivener's error, differs from the grantor's true name, the grantor clause should state the correction. For example, when title is erroneously taken as "Malcolm F. Thompson," and the party's true name is "Malcolm T. Thompson," the grantor clause should read "Malcolm T. Thompson who acquired title as Malcolm F. Thompson."

(3) Grantee

A deed must identify a grantee to whom the title passes. The grantee may be an actual person who takes title under an assumed name. Chapman v. Tyson, 39 Wash. 523, 81 P. 1066 (1905). A deed does not even need to identify the grantee by name, however, if the identity of the grantee can be ascertained by use of extrinsic evidence. Washington courts, following the weight of authority in other states, hold that such a deed will vest legal title as completely as if the grantee were named in the instrument. York v. Stone, 178 Wash. 280, 34 P.2d 911 (1934). In fact, a deed in which the name of the grantee is left blank, but which is otherwise lawfully executed, will vest title in the person whose name is subsequently inserted as grantee by a person having the grantor's authority to do so. Absent fraud, authority will be inferred by the act of possession of the deed by the person who fills in the blank. Barth v. Barth, 19 Wn.2d 543, 143 P.2d 542 (1943).

As a general rule, the grantee must be a legal entity at the time of the grant; otherwise the transfer is void. Loose v. Locke, 25 Wn.2d 599, 171 P.2d 849 (1946). It seems, however, that courts will go to some length to avoid this result. In a later decision, a court held that a deed to a corporation, made prior to its organization, was valid between the parties, and title passed when the corporation was legally incorporated. John Davis & Co. v. Cedar Glen No. Four, Inc., 75 Wn.2d 214, 450 P.2d 166 (1969). By analogy, this reasoning should apply to limited partnerships and limited liability companies, which also come into existence when the articles of formation are accepted by the state.

(4) Consideration

Because a deed is an executed rather than an executory contract, at least between the parties themselves, there is no requirement of any exchange of consideration to support a transfer of title. Even failure of the grantee to pay the purchase price is not a sufficient ground to set aside a deed. In re McDonnell's Estate, 65 Ariz. 248, 179 P.2d 238, (1947). See generally...