CHAPTER 6 TITLE STANDARDS
| Jurisdiction | United States |
(Nov 1977)
TITLE STANDARDS
Wehrli and Williams
Casper, Wyoming
Why they are; what they are; what they should be; their importance; and their effect on marketability of title.
At the very outset, and to save repetition in references to texts, I should like to express my thanks to others who have preceeded me in this field. All references to "Payne" refer to "The Why, What, and How of Uniform Title Standards", by John C. Payne, 7 Alabama Law Review (1954, Page 25); references to "Simes" shall refer to "Model Title Standards" by Lewis M. Simes and Clarence B. Taylor (1960); references to "Basye" refer to "Clearing Land Titles" by Paul E. Basye, Second Edition (1970) and references to "Patton" refer to "Patton on Titles", Second Edition (1970).
Title examination has been the perquisite of lawyers for the period of modern law as we know it. Just how it started and the rapidity with which it grew seems to have been lost or misplaced in legal history. Apparently it started some time after the breakdown of the feudal system when first the king, and then the king's lord, were the sole owners of lands and conveyances or transfers of tenancies were evidenced by the ritual of seizin and the physical delivery of possession. Eventually, however, the ritual was gradually supplemented by the delivery of a symbolic written instrument referred to as an "indenture" and finally, the preparation and delivery of deeds and other evidences of title, not only of the fee, but of lesser estates such as leaseholds.
As soon as the conveyance by instrument rather than by ritual became established, the problem of verifying these transactions arose. One of the earliest methods of preserving these documents was writing them into a book, not as a copy, but as an original, which was then signed by the parties involved. It was not long until it became apparent, even in thinly populated areas, that this was too cumbersome and that only copies of the original transaction need be kept or "recorded" in a public record established for that purpose. Probably the earliest act establishing such a procedure on this continent was an act passed by the General Court of the Massachusetts Bay Colony in 1640, providing for the entry in a record established for that purpose of each
[Page 6-2]
"morgage, bargaine, sale, or graunt hereafter to bee made of any houses, lands, rents, or other hereditaments,..." this act further provided that no such transaction need be recognized or could be enforced against any but the grantor unless the same was so recorded. I suppose as an economy of space and time, this act further provided: "And it is not intended that the whole bargaine, sale, etc., shall bee entered, but onely the names of the graunter & grauntee, the thing & the estate graunted, & the date;..." Similar acts were passed and adopted by the other colonies in time. In the early Virginia Act the deed was void, not only against a later purchaser, but, if no actual possession was delivered, it was also void as between the parties. A good discussion of these early recording acts and their effects may be found in "American Law of Property", Section 17.4. By the time of the establishment of our western territories, and eventually states, the transfer of title to land or an interest therein, as we know it today, was quite well established and recording acts in one form or another were common to all jurisdictions. In general, they established public records at a convenient seat of government, provided for the copying of conveyances therein and provided generally that although a conveyance or agreement for conveyance might be enforced as between the parties themselves, any such conveyance not so recorded was void as to any third party or innocent purchaser. Thus was established the principal that the priority of record meant priority of title. These refinements of the early recording acts further established the principal of imparted or constructive notice to be derived from the matters contained within the public records.
The early pioneer western lawyer probably was not too well trained in real estate titles, although he may have been farily well versed in the common law. This was of little matter as titles themselves in those early days were fairly simple. Either the federal government owned the land or it had been conveyed by patent to a citizen and resident. Two or three conveyances beyond the patentee, a mortgage or two, or possibly the probate estate of the patentee or his immediate grantee, was the usual extent of a chain of title. Of course, this was not true in the more populous eastern states which had already had 200 years or more of title experience. As a consequence, our early lawyers, as pioneers themselves, brought that experience with them and applied that knowledge to the facts and situations as they found them in these western areas. Of course, in the prior French and Spanish possessions, other systems arose, most notable of which is the Torrens system as it has developed
[Page 6-3]
and is applied in California. For the purposes of this paper, that system is an exception and will not be touched or commented upon.
As time progressed and records became more extensive and safe keeping depositories gave way to copying and recording, it became more burdensome and time consuming to examine the increasing number of documents within a chain of title. This then led to the first decision early examining attorneys had to make: What documents or records would constitute a sufficient and reliable source of the chain of title to sustain a creditable examination? Should it be the original documents, commencing with the grant or patent? Surely if all documents had been delivered to and saved by each successive grantee, this would certainly have been the most authentic record available to establish a complete chain of title and probably more reliable than supposed copies made in laborious longhand by some poorly educated clerk. The inaccessibility of the original documents, however, soon became apparent as there were many transactions which could and did affect title and evidence of which was not within the possession or control of the land owner, such as mortgages, mechanic's liens, judgment liens, proceedings in the administration of estates and other ancillary matters. As a consequence, the public records soon became the sole and only source to which the title examiner made reference.
Having accepted the public records the next question was, how were these records to be checked or examined? It was inevitable that a separate business or industry should arise — the person who, at the title examiners's direction, examined these records for him and reported in a shortened or abbreviated form what they disclosed. Thus the abstract was born. Although most attorneys, on occasion, have made a personal check of the public records as the basis for a title examination, present examiners much prefer to rely upon the familiarity with the records and the expertise of the bonded abstracter.
THE "WHY" OF TITLE STANDARDS
Now that we have reasonably accurate, reliable and accepted public records and reliable abstracters to digest those records for us, what more could be needed? Unfortunately, much time has passed, real estate transactions have become more...
To continue reading
Request your trial