----- Message from "MARK HANSON" <hanson@whitfieldlaw.com> on Mon, 28 Aug 2006 08:56:14 -0600 -----

To:	<realestate@iabar.org>
Subject:	X-IMail-SPAM-SPF-Softfail Re: Martin

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I thought we clarified through the discussion that Sheryl never held title, only dower and homestead.   The divorce affirmed the real estate was Bobby's.     And once they were divorced, she no longer possessed homestead or dower rights.  Thus a  deed from Sheryl  or change of title would not be necessary.

I think the reading of the case should NOT be that a divorce decree could not be a conveyance from one spouse to another.  I would still rely on a self executing divorce decree as to a conveyance from once spouse to another if both spouses were on the title.  And I thought that was the original question posed  - not the case main holding but the question posed to the list serve.

So, if that is your problem, a divorce decree disposition of real estate, and question of valid title of the grantee spouse, I think you are okay if the decree has sufficient language to make it self executing.  

Then the list serve discussion turned its focus to the main holding.  A divorce decree awarding real estate to one spouse cannot be considered a "like conveyance" to a third party e.g. It cannot be considered Sheryl's release of homestead and dower in favor of  Father Bob, to follow the prior deed from Husband Bobby to Father Bob.    And, that seems pretty basic.  To be a "like conveyance" the conveyance from Sheryl would need to be in favor of Father Bob,  "like" the deed from Bobby to Father Bob, which of course it was not.

Then Prof. Bauer brought "after acquired title" into the discussion.   In non-homestead situation, a deed conveying title the grantor does not possess would be void, just like a deed for a homestead in which the other spouse does not join.  However under "after acquired title" theory,  we know the non-homestead void deed can be cured.  We do not know if it can be cured in the homestead not-joinder by spouse situation because of the language of Martin, because the Martin case did not address "after acquired title". We don't know how the Supremes would hold if it were part of the argument.   We do know the Supremes are very protective of homestead.    Perhaps another case someday will clarify this further, but as it stands, under Martin I could not accept "after acquired title" to cure a non-joinding spouse.

But, I would accept a divorce self executing decree for conveyance from one spouse to the other, because I do not believe the language of Martin effects self executing divorce decree conveyance as between the spouses.  

Mark Hanson
Des Moines

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