[ISBA RealEstate] rerecording |
<realestate@iabar.org> | Friday November 17, 2017 22:40 |
|
"Relation back" seems to describe the status of a deed re-recorded.
Day v. Griffith, 15 Iowa 104 (1863):
"As applicable to the present controversy, the following general principles were recognized in Foley v. Howard, 8 Iowa, 56: Though a mortgage may be handed to the recorder for registry, by the mortgagor, if the mortgagee should subsequently assent to and adopt the same, such adoption, as between the parties to the instrument, may relate back to the time of its execution."
Generally one performing such act desires to correct a (slightly) erroneous record.
Your acknowledgment error seems to fall within that category of "minor item[s]" correctable by re-recording.
Currie v. Currie, 249 Iowa 1284, 90 N.W.2d 13 (1958):
"The land involved in this action was bought by the father and mother of Ward in 1896 and was their homestead for over fifty years, and until they sold it to Ward W. Currie on April 10, 1946. ... The deed from Ward's parents was recorded April 13, 1946, and was later re-recorded on May 1, 1946 to correct an error."
Huxley v. Liess, 226 Iowa 819, 285 N.W. 216 (1939) (deed re-recorded to attach a revenue stamp missed on the first recordation):
"The evidence shows without dispute that on August 28, 1932, [Huxley] asked the defendants {Liess] to come to his home...On the following day, the appellees met at the home of the appellant. There were present the appellant and wife, their lawyer, who was also a notary public, and the appellees. The deed was signed by the appellant and his wife...The appellant testified: “Yes, I told Mr. DeWitt to have this recorded at once. He took it to Attorney Bryant-Mr. Bryant was the attorney and Mr. DeWitt was the Notary-so he took to Mr. Bryant and Mr. Bryant sent it to Red Oak to be recorded and returned to Mr. Bryant to be taken the proper care of. They kept it until the institution of this lawsuit. I think they have it yet. Yes, I gave a copy to Mr. and Mrs. Liess. Yes, the revenue department came later and claimed there should be a revenue stamp on the deed. They was made out through an oversight. I put $5.00 of revenue stamps on the deed and had it re-recorded. I immediately took it right back on the same afternoon to Mr. DeWitt's office to have him take care of this deed. The second recording was in August, 1935. Three years after the original transfer.”
...
"The original deed was recorded, and even re-recorded, three years later. While recording, in itself, does not constitute delivery, it is evidence of, and creates a presumption of, delivery."
1 Patton & Palomar on Land Titles 3d section 83, p.270 (2003):
Title examiners often encounter correction records that are a re-recording of a previously recorded instrument, but with slight alterations in the instrument as first recorded, such as the addition of a seal, a correction of a typographical error in a name, or some other minor item. In some states, statutes expressly provide for such correction records. They may need to be examined in light of two different issues: (1) whether formalities are satisfied to make instruments recordable so that they are admissible as evidence and give constructive notice; and (3) whether they are valid between the parties. As to the first issue, if an alteration affects only the authorization to record the document, such as adding a valid acknowledgment, the corrected instrument may be recordable and admissible as evidence without being re-executed or re-delivered. An immaterial alteration in the body of the instrument, such as correction of a typographical error in a name, also may be made without having the instrument re-executed or redelivered, but the correction instrument must be reacknowledged to entitle it to be recorded, give constructive notice, and be admissible as evidence.
4 Am. Jur. 2d Alteration of Instruments § 19 (2017):
§ 19. Effect as to intervening rights of third persons
Generally, it is necessary, in order that the record of the altered instrument shall operate as constructive notice to third persons, that the instrument be re-executed, re-acknowledged, re-delivered, and re-recorded.1This rule has been applied although changes were made in the record of the instrument corresponding with the alterations made in the instrument itself.2 Where the instrument is re-acknowledged or re-attested and recorded after the alteration, it is binding upon all the parties in its altered form, and the record thereof is constructive notice of the altered instrument.3
With regard to whether such an alteration renders invalid a deed as originally executed, as against purchasers for value without notice of the instrument, such a purchaser may assert, in support of his or her title, the deed as originally executed and acknowledged, and at the same time avoid the effect of the alterations in it.4
1 Am. Jur. 2d, Records and Recording Laws § 72.
2 Am. Jur. 2d, Records and Recording Laws § 72.
3 Am. Jur. 2d, Records and Recording Laws § 72.
4 Citizens' Bank of Moultrie v. Taylor, 169 Ga. 203, 149 S.E. 861, 67 A.L.R. 355 (1929).
The law may refuse to recognize more serious changes to an original document on re-recording.
Winker v. Tiefenthaler, 225 Iowa 180, 279 N.W. 436 (1938)(re-recording of a mortgage to 'correct' a legal description amounts to a material alteration of the original agreement)
King v. Howell, 94 Iowa 208, 62 N.W. 738 (1895)(re-recording to correct typographical error in mortgage ignored when correction prejudiced rights obtained by third party between original recording and rerecording)
N.B.--one re-recording a deed may have a different, or additional, valid motive: He may also seek to "revitalize" an ancient record.
See Presbytery of Southeast Iowa v. Harris, 226 N.W.2d 232 (Iowa 1975)(some statutes require "periodic re-recording requirement for certain specific interests"--e.g. Iowa Code section 614.24)
Basye, Clearing Land Titles § 171, p.260 (1953):
"An ancient record need not inevitably die. It can be revitalized by rerecording or by filing an appropriate notice of its desire to live. In this way new roots of title can be established and the period of examination can be kept within a stated constant period of time. In this way the recent land records alone become the sole means of preserving interests and of affording constructive notice of their state of life."
Quoted in City of Lake View v. Houston, 2008 WL 5412284 (Iowa App. 2008)
But this motive does not appear in your situation.
David Hanson
Hofmeyer & Hanson PC
Fayette, Iowa
----- Original Message -----
From: "Kevin" <realestate@iabar.org>
To: realestate@iabar.org
Sent: Friday, November 17, 2017 4:19:35 PM
Subject: [ISBA RealEstate] rerecording
Probably an easy question for a Friday that I can't seem to confirm: Warranty Deed being rerecorded to correct an issue with the acknowledgement. Is there any need to rerecord the Mortgage that followed the original Deed? It was my opinion that the rerecording of the Deed relates back to the original, but want to make sure there is no issue.
Kevin R. Sander
Fitzgibbons Law Firm
P.O. Box 496
Estherville, Iowa 51334
Telephone: (712) 362-7215
Facsimile: (712) 362-3526
ksander@fitzgibbonslawfirm.com<mailto:ksander@fitzgibbonslawfirm.com>