Prepared by Tom Mastin PLS
When retracting sequential conveyances, we must remember:
- There is a separation of time between the creation of adjoining Parcels. Creation indicates the time when the parcels went from a single large parcel to the current smaller parcels.
- The written description indicates the intent. This does not allow for the liberal interpretation of what they meant to write.
- Generally a call to another document makes that document a part of the description.
Sequential Conveyances can be Metes and Bounds, where the direction and distance of a line is called out along with a bounding element, such as the corner of another property. In the next section determining intent, much of the discussion relates to these types of descriptions. Also, seqential conveyances can be an “of” type, such as the westerly 100 feet of Lot 1 or an aliquot part description, such as the westerly ½ of Lot 1. Both of these last two have issues that will be discussed later.
Determining Intent
In interpreting intent of a written deed we look for controlling calls and informative calls.
- A controlling call fixes the location of a line or point. It controls over all other calls.
- Generally a controlling call starts with a “to” or an “along” such as “to” the northwest corner of lot 1, or “along” the west line of said section 13.
- Informative calls are basically all other calls. They are calls that are there to aid in the understanding of where the controlling call is.
- when there is a controlling calls with multiple calls, the general rule is that the call immediately after the “to” or “along” is controlling and the others are informative. Such as “to a 2 inch iron pipe at the NW corner of Lot 1”. The location of the 2” pipe would hold over the actual location of the NW corner, if they differed.
A “Point of Beginning” is indicating the start of the description of the land being conveyed. It is often called the “True Point of Beginning” if there is a “Commencing at”. Point of Commencement is a point that is easily identifiably near the location of the land being conveyed. This is aid in the understanding of the general location of the conveyed land. There a number of descriptions that because of the way they are written, it is not immediately clear as to where the point of beginning is. Usually a detailed analysis of the description will make the point of beginning clear.
It is not uncommon to see a “Basis of Bearings” statement in a legal description. However, in a metes and bounds description, the basis of bearings changes every time there is a controlling line with a called out direction. This makes any line that is not fixed by a controlling call to have its direction fixed by the nearest line that was a controlling call.
Dealing with Ambiguities within the intent of a deed.
There are two types of Ambiguities; Patent and Latent. A Patent ambiguity is one that is clear on its face that the description is not describing a unique piece of land.. It can be determined by a reasonable person just by reading the deed. “The 40 acres in Section 26 … “ is an example, where there are an infinite number of 40 acres within a section 26. The courts consider a description null and void if it has a patent ambiguity.
A latent ambiguity is a discrepancy that does not show up until the retracement process. In Brown’s “Boundary Control and Legal Principles” he provides an order or priority of conflicting elements, where the higher ones on the list supercede the lower ones. It should be noted that this is only for ambiguities which is far different from a description not mathematically closing. Ambiguities are less common than one might think, with the exception of Senior Rights. With that said here is Brown’s list:
- Unwritten rights
- Senior Rights
- Call for a survey
- Call for a monument
- Distance
- Direction
- Coordinates
- Area
The last two have been rotated from time to time. When it comes to conflicting monuments, there is also an order for them:
- Natural
- Artificial, called for
- Record
None of this is absolute, as there are always exceptions.
Senior Rights
Again these are parcels that are created at different times. Farmer Brown owns 40 acres. One day she conveys to Jones the west 20 acres and the next day to Smith the East 20 acres. Because this is a sequential conveyance, Jones will get the weste 20 acres and Smith will get whatever portion of the east 20 acres that wasn’t already conveyed to Jones.
This is what is known as Senior Rights, the fact that Smith was junior to Jones because the parcel that Jones had was created prior to Smith, therefore Jones may impact the location of Smith’s property, however Smith has no impact on Jones’s property. There is even a chance that Brown still owns some of the property!
The process of determining senior rights requires to perform a chain of title back to the point when the subject property and all the adjoiners were a single parcel and then see order of creation from there.
If you would like to try a short quiz tap on the start below
In 1940, a portion of this lot was sold using the following description, the preamble for which has been omitted. The 1940 deed was the first conveyance within Lot 70 and has senior rights. There are no occupational issues to be considered.
Beginning at the Northeast corner of said lot marked by stake number S63; thence S 80'00'00" W, along the North line of said lot 800.00 feet; thence S 45'00'00" E, 500.00 feet; thence N 80'00'00" E, 800.00 feet to the Westerly line of Wagon Road; thence N 45' 00' 00" W, along Wagon Road, 500.00 feet to the Point of beginning.
Exhibit "B" is the result of your partial retracement of Lot 70 in the Spanish Rancho'
How would you establish the 1940 deed?
The NW corner of the land deeded to Johnson would be located
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