| Re: Change of Title as a Stray Instrument? | ||
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----- Message from "Douglas
Daggett" <ddaggett@lawyer.com> on Thu, 3 Aug 2006 11:31:25 -0600
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To:
| <realestate@iabar.org> |
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Subject:
| Re: Change of Title as a Stray Instrument? |
In this situation I had documents involving a potential claim of a prior titleholder countenanced by a probate proceeding with a court order recognizing the surviving spouse as owner to the property. In order to keep the first e-mail short I did not include the fact that the abstract showed that B had later conveyed the subject real estate with other real estate to one of her children and that a bank had issued two separate mortgages including the real estate I was examining.
Also, before sending the e-mail I had checked with the clerk of court who would not issue a corrected COT without a court order. Since I was not the attorney for the estate (now deceased) and since the court appointed Personal Representative I was not sure of standing to seek a court order in the estate.
After considering the input from the listserv, I will be
contacting the child with the mortgage to obtain an affidavit from the
child that the subject real estate should not have been in this estate
and disclaiming the child's interest. I will also have my client
sign an affidavit of possession.
Doug
----- Original Message -----
From: "Lee (Ken) Walker"
To: realestate@iabar.org
Subject: Re: Change of Title as a Stray Instrument?
Date: Thu, 03 Aug 2006 08:56:33 -0500
IF TRULY A STRAY DOCUMENT WHY DO YOU NEED ANYTHING ?
BECAUSE WE TITLE EXAMINERS ARE AFRAID THE NEXT EXAMINER WILL REQUIRE SOMETHING
AND WE WILL LOOK BAD. WE MUST ALL READ TITLE STANDARD 1.1 AND BELIEVE
IT
Leo Martin wrote:
The Change of Title
was probably issued pursuant to an order approving the Final Report. Can
you use an Application Nunc Pro Tunc to set forth the reason that the Order
that approved the final report was incorrect and then have the court enter
an Order Nunc Pro Tunc stating that the previous Change of Title was a
nullity? The Order Nunc Pro Tunc can also state that a corrected
Change of Title is to be delivered to the Auditor to show that the first
Change of Title was incorrect and that title is vested in C. The
Clerk and the Auditor may be more comfortable if there is a court order.
LEO P. MARTIN, ATTORNEY
Peters Law Firm, P. C.
233 Pearl Street / P.O. Box 1078
Council Bluffs, IA 51502-1078
PH:(712)328-3157// FAX:(712)328-9092
e-mail: leo.martin@peterslawfirm.com
-----Original Message-----
From: realestate-owner@iabar.org
mailto:realestate-owner@iabar.orgOn
Behalf Of Craig Hastings
Sent: Thursday, August 03, 2006 7:35 AM
To: realestate@iabar.org
Subject: Re: Change of Title as a Stray Instrument?
I agree. I've always treated Changes of Title as practically
irrelevant to the chain of title. How many of us actually examine an abstract
when we probate an estate? If we start treating Changes of Title as muniments
of title we're going to have a bunch of angry spouses/executors demanding
to know why they have to pay to have an abstract brought up to date.
I think Richard's suggestion of a corrective Change of
Title statement by the Clerk is a good one.
Craig Hastings
Ames
On Aug 3, 2006, at 8:27 AM, Richard Bordwell wrote:
What happened to the concept that a Change of Title is used only for the purpose of allowing the County Auditor to track changes in ownership of land for tax purposes and the actual document changing the ownership (title) of the property is the document which the title examiner needs to be concerned. In this case, A died with no ownership interest in the property but it was mistakenly listed in his estate. Did ownership pass to B as surviving joint tenant? I don’t think so. Perhaps someone needs to send a corrected change of title to the auditor saying that the original one was made in error.
Richard S. Bordwell
Bordwell Law Office, PLC
Attorneys at Law
Washington, Iowa 52353
DISCLAIMER: This e-mail is intended solely for the addressees named
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From: realestate-owner@iabar.org
mailto:realestate-owner@iabar.org
On Behalf Of Jerry C. Sharpe
Sent: 08/03/2006 7:26 AM
To: realestate@iabar.org
Subject: RE: Change of Title as a Stray Instrument?
I believe the 1991 change of title needs to be treated as a stray deed since it breaks the chain of title began in 1974 and there was no subsequent conveyance after 1991 and more than ten years ago that could be the basis of using 614.17A. I would try to use an affidavit of disclaimer under Title Standard 4.5. It can come from anyone having personal knowledge of the facts if the grantee of the stray instrument is not available. The party would have to know that A and B had conveyed their interest in 1974 and had not received any conveyance back subsequent thereto and therefore that the listing of the property in A's estate was an error. Hopefully one of the living children would have such knowledge.
From: realestate-owner@iabar.org
mailto:realestate-owner@iabar.org
On Behalf Of Douglas Daggett
Sent: Wednesday, August 02, 2006 11:14 PM
To: realestate@iabar.org
Subject: Change of Title as a Stray Instrument?
Hello all. While reading an abstract I found the following issue in which a Change of Title may be a stray conveyance:
In 1974 A & B (husband and wife) convey Black Acre to C by Warranty Deed. C has openly possessed Black Acre ever since.
In 1989 A dies intestate leaving a surviving spouse and eight children, and his estate is probated. Black Acre is shown as real estate owned jointly by decedent and surviving wife. In 1991 a Clerk of Court Change of Title for Black Acre to B as surviving spouse is issued and recorded.
In 2000 B dies and no estate proceeding is pursued for her. Also since 1989 one child of A has died and another child is legally incompetent so obtaining quit claim deeds from the surviving heirs is impractical or impossible.
Does C have marketable title?
Is the probate proceeding and the Clerk's Change of Title a stray instrument that can be cut off by an affidavit pursuant to section 614.17A?
If C does not have marketable title, is any legal avenue short of a quiet title action available to obtain marketable title?
Any thoughts would be appreciated.
Doug Daggett
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