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Issue  162  Article  276
Published:  1/1/2009

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Dirt Tales From the Deed Vault - Episode 21
John Dillard, Vice President and Legal Counsel

This month's edition of Dirt Tales looks at a common error revealed in foreclosures.

Larry Lowbidder bought a piece of property at foreclosure.  When he had his attorney conduct an examination of title, he was told the bank had a defective description on the deed of trust.  Larry's attorney requested the seller (the bank) to provide his client with a good legal description.

All so often issues are raised at foreclosure regarding the adequacy of the legal description on the property being foreclosed upon.  The problems range from no legal being attached to the deed of trust to a legal that simply doesn't close or has a beginning point that cannot be located.  In these kinds of situations title may still pass in a conveyance as long as the ambiguity was latent.  With latent ambiguities courts will permit parol evidence to be introduced to determine what the deed or deed of trust was granting.  This was the issue in Blumstein v. Collins,  COA02-656, filed: 20 May 2003 in an unpublished case from Swain County .   The issue in that case involved the adequacy of a description in an easement for water. The deed included the following grant for the easement:

"Grantor's reserve the right to the use of spring water according to such use as is now made by them, along with the right of ingress, egress and regress in and to the above described property, giving and granting to Grantees a like right of ingress, egress and regress over the lands retained by Grantors as such right of way now exists on said lands." (emphasis in the original).

The Court determined the ambiguity of the description was latent because it could be determined by parol evidence where the easement had existed at the time the grant was made.

The rule determining whether or not a grant will fail was set out in Thompson v. Umberger, 221 N.C. 178, 180, 19 S.E.2d 484, 485 (1942, where the court there said "it is to be stressed that an alleged grant will be void and ineffectual only when there is such an uncertainty appearing on the face of the instrument itself that the court -- reading the language in the light of all the facts and circumstances referred to in the instrument -- is yet unable to derive therefrom the intention of the parties as to what land was to be conveyed".

This case says courts will only render descriptions void after the evidence referred to in the grant proves inadequate to locate the property. When the terms used in the deed leave it uncertain what property is intended to be embraced in it, parol evidence is admissible to fit the description to the land but never to create a description. When, as here, the ambiguity in the description is not patent but latent -- referring to something extrinsic by which identification might be made "the reservation will not be held to be void for uncertainty."

As a practice tip, placing the street address on deeds and deeds of trust may be a sufficient reference for a court to allow parol evidence to show what the grantor intended to convey.

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