Term
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Definition
A) There is an unbroken chain of record title for at least 40 years (at least 20 years for certain mineral interests); and
B) There is no one in hostile possession of the land. |
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Term
UNBROKEN CHAIN OF RECORD TITLE
(TWO CASES) |
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Definition
A) EITHER:
1) A CONVEYANCE OR OTHER TITLE TRANSACTION WHICH PURPORTS TO CREATE AN INTEREST AND HAS BEEN A MATTER OF RECORD FOR AT LEAST 40 YEARS (AT LEAST 20 YEARS FOR CERTAIN MINERAL INTERESTS); OR
2) A SERIES OF CONVEYANCES OR OTHER TITLE TRANSACTIONS OF RECORD IN WHICH THE FIRST CONVEYANCE OR TITLE TRANSACTION HAS BEEN A MATTER OF RECORD FOR AT LEAST 40 YEARS (AT LEAST 20 YEARS FOR CERTAIN MINERAL INTERESTS); AND
B) THERE IS NOTHING OF RECORD PURPORTING TO DIVEST THE PERSON OF TITLE. |
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Term
| MINERAL INTERESTS DO NOT INCLUDE THE FOLLOWING INTERESTS: |
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Definition
| OIL, GAS, SAND, GRAVEL, LIMESTONE, CLAY OR MARL |
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Term
1.3
Problem A:
Frank Thomas was the grantee in a deed of Blackacre recorded in
1960. No instrument affecting Blackacre has been recorded since
1960. In 2003, does Thomas have an unbroken chain of record title? |
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Definition
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Term
1.3
Problem B:
Arthur Gates was determined to be the owner of Blackacre by a final
court order entered in 1961. A certified copy of the order was
recorded in 1962. No other instrument affecting Blackacre has been
recorded since 1962. In 2003, does Gates have an unbroken chain of
record title? |
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Definition
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Term
1.3
Problem C:
Frank Thomas was the grantee in a deed of Blackacre recorded in
1960. He conveyed Blackacre to Janet Tillson by a deed recorded
in 1965. In 1985, a deed of Blackacre from Janet Tillson to Richard
Cook was recorded. No other instrument affecting Blackacre has been
recorded since 1965. In 2006, does Cook have an unbroken chain of
record title? |
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Definition
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Term
1.3
Problem D:
In 1961, the estate of Arthur Gates was probated. Blackacre was included
in the inventory of the estate, although Gates did not appear
in the chain of record title. A certified copy of the order assigning the
residue (specifically describing Blackacre) to his two daughters as
sole heirs at law was recorded in 1962. A deed from the heirs at law
to Ralph Allan was recorded in 1993. No other instrument affecting
Blackacre has been recorded since 1962. In 2003, does Allan have an
unbroken chain of record title? |
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Definition
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Term
1.3
Problem E:
Frank Thomas was the grantee in a deed of Blackacre executed in
1960 by a stranger to the title. The deed was recorded in 2001. No
other instrument affecting Blackacre has been recorded. In 2003, does
Thomas have an unbroken chain of record title? |
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Definition
Answer:
No. Thomas’s chain of record title begins with the recording of his
deed in 2001. |
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Term
1.3
Problem F:
Frank Thomas, the owner of Blackacre, conveyed Blackacre to Janet
Tillson, but reserved an undivided one-half interest in iron ore and
coal. The deed was recorded in 1970. By deed recorded in 1980 Tillson
conveyed Blackacre to Richard Cook, but the deed made no reference to
Thomas’s reserved iron ore and coal interest. There was no
production of iron ore or coal from Blackacre. No other instrument
affecting Blackacre was recorded after 1980. In 2001, does Cook
have an unbroken chain of record title to all interest in Blackacre? |
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Definition
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Term
1.4
Problem A:
Frank Thomas was the last grantee of record in the chain of title to
Blackacre by deed recorded in 1960. In 1999 a warranty deed describing
Blackacre and executed by a stranger to the title was recorded. Is
this deed an instrument purporting to divest Thomas of his interest
within the meaning of the Marketable Record Title Act? |
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Definition
Answer:
No. The deed did not purport to divest Thomas of his interest because
there is nothing in the deed indicating that the grantor had acquired the interest of Thomas.
Although an instrument may not be one purporting to divest a person of
an interest within the meaning of the Marketable Record Title
Act, the instrument should not necessarily be disregarded by a title
examiner. Thus in Problem A the deed recorded in 1999 is not one
purporting to divest Frank Thomas and therefore does not preclude
him from having or acquiring a marketable record title. On the other
hand, a person cannot have marketable title if the land is in the hostile
possession of another. The 1999 deed may give notice of the hostile
possession or of some other interest or claim. The deed would also
be an instrument purporting to create an interest in the grantee within
the terms of Section 2 of the Act. Accordingly, a prudent title examiner
would not ignore it. |
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Term
1.4
Problem B:
Frank Thomas was the last grantee of record in the chain of title to
Blackacre by deed recorded in 1960. In 1999 a mortgage of Blackacre with
covenants of warranty executed by a stranger to the title
was recorded. Does the mortgage purport to divest Thomas of any
interest within the meaning of the Marketable Record Title Act? |
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Definition
Answer:
No. The mortgage did not purport to divest Thomas of his interest because
there is nothing in the mortgage indicating that the mortgagor
had acquired the interest of Thomas. |
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Term
1.4
Problem C:
Frank Thomas was the last grantee of record in the chain of title to
Blackacre by deed recorded in 1960. In 1996 the estate of Arthur
Gates, a stranger to the title, was probated. By Gates’s will, Blackacre
was specifically devised to Arthur Gates, Jr. Certified copies of the
will and of the order assigning the residue of the estate were recorded
in 1998. Do the will and the order assigning residue constitute instruments
purporting to divest Thomas of his interest within the meaning
of the Marketable Record Title Act? |
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Definition
Answer:
No. There is nothing indicating that Thomas divested his interest. |
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Term
1.4
Problem D:
Frank Thomas was the last grantee of record in the chain of title to
Blackacre by deed recorded in 1960. A deed of Blackacre from Janet
Tillson to Harry Cook, recorded in 1998, recited that Frank Thomas
died intestate and that the grantor was his sole heir at law. Does this
deed purport to divest Thomas of his interest within the meaning of
Marketable Record Title Act? |
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Definition
Answer:
Yes. If the recitals in the Tillson deed are true, Cook has acquired the
interest once vested in Thomas. Even if the recitals are not factually
correct, the deed in question is one purporting to divest within the
meaning of the Act. |
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Term
1.4
Problem E:
Wendy Thomas was the last grantee of record in the chain of title to
Blackacre by deed recorded in 1960. A deed of Blackacre recorded in
1998 was executed by Wendy Thomas, by John Smith, her attorney-
in-fact. No power of attorney was recorded. Does this deed purport to
divest Thomas of her interest within the meaning of the Marketable
Record Title Act? |
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Definition
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Term
1.4
Problem F:
Frank Thomas was the last grantee of record in the chain of title to
Blackacre by deed recorded in 1960. A deed of Blackacre executed
by Janet Tillson, referring to the land as “being the same land heretofore
conveyed to me by Frank Thomas,” was recorded in 1988. No
deed from Thomas to Janet Tillson was recorded. Does the deed executed
by Janet Tillson purport to divest Thomas of his interest within
the meaning of the Marketable Record Title Act? |
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Definition
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Term
1.4
Problem G:
Frank Thomas was the last grantee of record in the chain of title to
Blackacre by deed recorded in 1960. In 1998, an affidavit was recorded
in which a stranger to the title stated that “he and his predecessors
in occupancy have been in continuous, open, notorious and adverse
possession of Blackacre as against the world for the preceding 15
years.” Does this instrument purport to divest Thomas of his interest
within the meaning of the Marketable Record Title Act? |
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Definition
Answer:
Yes. The affidavit indicates that Thomas’s interest has been terminated
by adverse possession for the statutory period. |
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Term
1.5
Problem A:
Frank Thomas was the last grantee in the chain of title to Blackacre
by deed recorded in 1960. In 1998, Ralph Allan entered into and remained
in hostile possession of Blackacre. There is nothing else of record. In 2003,
does Thomas have a marketable record title within the meaning of the Marketable Record Title Act? |
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Definition
Answer:
No.
Comment:
The Committee expresses no opinion as to what specific acts may
constitute hostile possession. |
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Term
1.5
Problem B:
Frank Thomas was the last grantee in the chain of title to Blackacre
by deed recorded in 1960. In 1961, a deed executed by a stranger to
the title and conveying Blackacre to Ralph Allan was recorded. There
is nothing else of record. In 2003, Allan was in actual possession of
Blackacre, hostile to Thomas. In 2003, does either Thomas or Allan
have a marketable record title within the meaning of the Marketable
Record Title Act? |
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Definition
Answer:
Allan has marketable record title. Thomas does not have marketable
record title because Allan has hostile possession.
Comment:
The Committee expresses no opinion as to what specific acts may
constitute hostile possession. |
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Term
1.5
Problem C:
Frank Thomas was the last grantee in the chain of title to Blackacre
by deed recorded in 1960. In 1961, a deed executed by a stranger to
the title and conveying Blackacre to Ralph Allan was recorded. There
is nothing else of record. In 2003, Thomas was in actual possession of
Blackacre, hostile to Allan. In 2003, does either Thomas or
Allan have marketable record title within the meaning of the
Marketable Record Title Act? |
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Definition
Answer:
Thomas has marketable record title. He has an unbroken chain of
title extending back at least 40 years. The deed from the stranger to
Allan is not an instrument purporting to divest Thomas of the interest
created in him by the deed recorded in 1960. Allan does not have
marketable record title because Thomas has hostile possession.
Comment:
The Committee expresses no opinion as to what specific acts may
constitute hostile possession. |
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Term
1.5
Problem D:
Frank Thomas was the last grantee in the chain of title to Blackacre
by deed recorded in 1960. In 1961, a deed executed by a stranger to
the title and conveying Blackacre to Ralph Allan was recorded. There
is nothing else of record. In 2003, Blackacre is unoccupied. In 2003,
does either Thomas or Allan have marketable record title within the
meaning of the Marketable Record Title Act? |
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Definition
Answer:
Yes. Thomas and Allan each have marketable record title. Thomas
and Allan each has an “unbroken chain of title” extending back at
least 40 years, there is nothing purporting to divest either of them,
and there is no one in hostile possession. See Standard 1.7 regarding
conflicting marketable record titles.
Comment:
The Committee expresses no opinion as to what specific acts may
constitute hostile possession. |
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Term
1.5
Problem E:
Frank Thomas was the last grantee in the chain of title to Blackacre
by deed recorded in 1960. In 1961, a deed executed by a stranger to
the title and conveying Blackacre to Ralph Allan was recorded. There
is nothing else of record. In 2003, Adam Johnson is in
hostile possession of Blackacre. In 2003, does either Thomas or Allan
have marketable record title within the meaning of the Marketable
Record Title Act? |
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Definition
Answer
No.
Comment:
The Committee expresses no opinion as to what specific acts may
constitute hostile possession. |
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Term
1.5
Problem F:
Frank Thomas was the last grantee in the chain of title to Blackacre
by deed recorded in 1960. In 1961, a deed executed by a stranger to
the title and conveying Blackacre to Ralph Allan was recorded. There
is nothing else of record. In 2003, Adam Johnson is inpossession of
Blackacre, hostile to Allan, and there is a recorded leasefrom Thomas
to Johnson, dated and recorded in 1995, purporting to lease Blackacre
to Johnson for 12 years. In 2003, does either Thomasor Allan have marketable
record title within the meaning of the Marketable Record Title Act? |
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Definition
Answer:
Thomas has marketable record title (subject to the lease), because the
possession of Johnson is subordinate to the title of Thomas and there
fore is not hostile to him. Because Johnson’s possession is hostile to
Allan, Allan does not have marketable record title.
Comment:
The Committee expresses no opinion as to what specific acts may
constitute hostile possession. |
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Term
1.6
Problem A:
Blackacre was conveyed to John Pond by deed recorded in 1955.
The deed stated that Pond or his heirs had the right to re-enter
Blackacre in the event of a breach of certain conditions stated in the
deed. Pond conveyed Blackacre to Frank Thomas by deed recorded
in 1960, but the deed did not state or refer to the right of entry. None
of the instruments in the chain of title since 1960 contains a reference
to the right of entry. No notice of claim has been recorded.
Thomas is in possession of Blackacre. In 2003, does Thomas hold
title to Blackacre free of the right of entry? |
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Definition
Answer:
Yes. Thomas holds the title free of the right of entry because it does
not appear in any instrument in his 40-year chain of record title. |
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Term
1.6
Problem B:
Blackacre was conveyed to John Pond by deed recorded in 1955. The
deed stated that Blackacre was conveyed “so long as” it was used for
a specified purpose, but if it ceased to be so used, Blackacre would
revert to Pond and his heirs. Pond conveyed Blackacre to Paula Bell
by deed recorded in 1960. The deed specifically referred to the possibility
of reverter. Paula Bell conveyed Blackacre to Frank Thomas
by deed recorded in 1980. The deed did not refer to the possibility of
reverter. No other instrument affecting Blackacre has been recorded since 1980.
Thomas is in possession of Blackacre. In 2003, does Thomas hold title to
Blackacre free of the possibility of reverter? |
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Definition
Answer:
No. Although Thomas holds marketable record title to Blackacre, he
does not hold the title free of the possibility of reverter because it is
referred to in the 1960 deed, which is the deed commencing Thomas’s 40-year chain of record title. |
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Term
1.7
Problem A:
Blackacre was conveyed to Frank Thomas by deed recorded in 1945.
A deed from a stranger to the title conveying Blackacre to Ralph Allan
as recorded in 1955. Allan conveyed Blackacre to Iva Grant by
a deed recorded in 1975. Iva Grant conveyed Blackacre to Theodore
Worth by a deed recorded in 1976. There is nothing else of record
since 1945. Blackacre is not occupied. In 2003, does Worth have
marketable record title free of the claim of Thomas? |
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Definition
Answer:
Yes. Worth has an unbroken chain of title of record, there is nothing
of record purporting to divest him of the interest and there is no one
in hostile possession. Although the deed from the stranger to Allan
does not purport to divest the interest of Thomas, it is nevertheless
an instrument which purports to create an interest in Allan and may
therefore constitute the basis for the creation of a new marketable
record title upon the expiration of 40 years after the date of its recording.
Thomas’s deed is an instrument recorded more than 40 years in the
past which purports to create an interest in him; the deed to Allan
from a stranger to the title does not purport to divest Thomas and
there is no one in hostile possession.
Under Section 3 of the Act, these titles are held “free and clear of any
interests...the existence of which depends...upon any transaction...
that occurred prior to such 40 year period...” Thomas must include the 1945
deed in order to make up his unbroken chain of title of record, because that
is the recorded instrument commencing his chain of record title under the Act.
The Act benefits Thomas’s title by causing it to be free and clear of any claim
based on a transaction thatoccurred before the commencement of his chain of
title. However,Thomas’s title cannot be held free of claims arising from
instruments recorded after the instrument commencing his chain of title.
Because the instruments comprising Worth’s title would be discovered by an
examination of the records covering the period of time upon which
Thomas must rely, Thomas’s title is not held free of Worth’s interest.
On the other hand, because Worth’s 40-year chain of record title commenced
in 1955, he and his successors in interest are entitled to hold
the title free and clear of the claim of Thomas, because Thomas’s
title depends upon the 1945 deed, which evidences a transaction that
occurred before Worth’s 40-year chain of record title. The existence
of Thomas’s claim cannot be ascertained by an examination of the
records covering the period upon which Worth and his successors
would rely to make up the unbroken chain of title of record, because
the deed in favor of Thomas was recorded prior to the commencement of
Worth’s 40-year chain of record title. |
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Term
1.7
Problem B:
Blackacre was conveyed to Frank Thomas by deed recorded in 1945.
A deed from a stranger to the title conveying Blackacre to Ralph Allan
as recorded in 1955. A deed from Frank Thomas, conveying Blackacre to
Burt Tillson we recorded in 1970. Allan conveyed Blackacre to Iva Grant by
a deed recorded in 1975. Iva Grant conveyed Blackacre to Theodore
Worth by a deed recorded in 1976. Blackacre is not occupied. In 2003, does
either Worth or Tillson have a marketable record title to Blackacre? |
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Definition
Answer:
No. Neither party is entitled to the benefit of Section 3 of the Act as
against the other. Worth is not entitled to the benefit of Section 3 as
against Tillson even though Tillson’s title depends in part upon the
deed to Thomas in 1945, because the deed from Thomas to Tillson
was recorded during the 40-year period relied upon by Worth. The
Act bars only those claims the existence of which cannot be ascertained
by examination of the records covering the 40-year period being relied upon.
Although Tillson has a marketable record title within
the meaning of the Act, he is not entitled to the benefit of Section 3
of the Act as against Worth’s interest, because the deeds in Worth’s
chain of title were recorded within the 40-year period relied upon by
Tillson. The competing claims must be resolved in accordance with
other principles. |
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Term
1.8
Problem C:
Blackacre was conveyed to Frank Thomas by deed recorded in 1945.
A deed from a stranger to the title conveying Blackacre to Ralph Allan
as recorded in 1955. Allan conveyed Blackacre to Iva Grant by
a deed recorded in 1975. Iva Grant conveyed Blackacre to Theodore
Worth by a deed recorded in 1976. Blackacre is not occupied. A deed from Frank Thomas
conveying Blackacre to Burt Tillson was recorded in 1994. In 2003,
does either Worth or Tillson have a marketable record title to Blackacre? |
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Definition
Answer:
No. Neither party is entitled to the benefit of Section 3 of the Act as
against the other. Although the deed to Tillson was recorded more
than 40 years after the deed to Thomas, the deed was recorded within
Worth’s 40-year chain of record title. |
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Term
2.1
Problem: Blackacre was deeded to Lawrence Emery and Fredrick Stephens. A deed describing Blackacre was later executed by Laurence Emory and Frederick Stevens as grantors. May the names of the grantees and grantors be presumed to identify the same persons? |
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Definition
Answer: Yes.
STANDARD: DIFFERENTLY SPELLED NAMES ARE PRESUMED TO IDENTIFY THE SAME PERSON IF THEY SOUND ALIKE, OR IF THEIR SOUNDS CANNOT BE DISTINGUISHED EASILY, OR IF COMMON USAGE BY CORRUPTION OR ABBREVIATION HAS MADE THEIR PRONUNCIATION IDENTICAL. |
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Term
2.2
Problem A: Blackacre was deeded to Lawrence Emery. A deed describing Blackacre was later executed by Lawrence J. Emery. May the names of the grantee and grantor be presumed to identify the same person? |
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Definition
Answer: Yes.
STANDARD: THE PRESENCE IN ONE INSTRUMENT AND THE ABSENCE IN ANOTHER OF A MIDDLE NAME OR INITIAL DOES NOT ITSELF CREATE A QUESTION OF IDENTITY. |
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Term
2.2
Problem B: Blackacre was deeded to Lawrence Emery. A deed describing Blackacre was later executed by Lawrence Joseph Emery. May the names of the grantee and grantor be presumed to identify the same person? |
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Definition
Answer: Yes.
STANDARD: THE PRESENCE IN ONE INSTRUMENT AND THE ABSENCE IN ANOTHER OF A MIDDLE NAME OR INITIAL DOES NOT ITSELF CREATE A QUESTION OF IDENTITY. |
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Term
2.2
Problem C: Blackacre was deeded to Lawrence J. Emery, of Los Angeles, California. A deed describing Blackacre was later executed by Lawrence Joseph Emery, of Buffalo, New York. May the names of the grantee and grantor be presumed to identify the same person? |
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Definition
Answer: No. Based upon the disparity in the stated addresses, further inquiry
into the identity of the grantee and grantor is warranted.
STANDARD: THE PRESENCE IN ONE INSTRUMENT AND THE ABSENCE IN ANOTHER OF A MIDDLE NAME OR INITIAL DOES NOT ITSELF CREATE A QUESTION OF IDENTITY. |
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Term
2.3
Problem: Blackacre was conveyed by a deed reciting L. Joseph Emery as the grantee. A deed describing Blackacre was later executed reciting L. Jos. Emery as the grantor. May the names of the grantee and grantor be presumed to identify the same person? |
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Definition
Answer: Yes.
STANDARD: ALL CUSTOMARY AND GENERALLY ACCEPTED ABBREVIATIONS OF FIRST AND MIDDLE NAMES APPEARING IN RECORDED INSTRUMENTS SHOULD BE RECOGNIZED AS EQUIVALENT TO THE FULL NAME. |
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Term
2.4
Problem A: Blackacre was deeded to Joe Emery. A deed describing Blackacre was later executed by J. Lawrence Emery, also known as Joe Emery, as grantor. May the names of the grantee and the grantor be presumed to identify the same person? |
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Definition
Answer: Yes.
STANDARD: A RECITAL OF IDENTITY MAY BE PRESUMED TO BE TRUE IF STATED IN AN INSTRUMENT EXECUTED BY THE PERSON WHOSE IDENTITY IS RECITED. |
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Term
2.4
Problem B: Blackacre was deeded to Laura Emery. A mortgage of Blackacre was later executed by Laura Graham, formerly Laura Emery. May the mortgagor be presumed to be the same person as the grantee of the prior deed? |
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Definition
Answer: Yes.
STANDARD: A RECITAL OF IDENTITY MAY BE PRESUMED TO BE TRUE IF STATED IN AN INSTRUMENT EXECUTED BY THE PERSON WHOSE IDENTITY IS RECITED. |
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Term
2.5
Problem: Blackacre was deeded to Lawrence Emery. A deed describing Blackacre was later executed by Lawrence Emery, Jr. May the names of the grantee and the grantor be presumed to identify the same person? |
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Definition
Answer: No. The use of the word “Jr.” in the later deed warrants further inquiry into the identity of the grantee and grantor.
Comment: If a father and son have the same name, a conveyance is presumed to be in favor of the father in the absence of language in the conveyance evidencing intent to make the son the grantee. Goodell v Hibbard, 32 Mich 47 (1875).
STANDARD: AN ADDITION OF A SUFFIX SUCH AS “JR” OR “II” TO THE NAME OF A SUBSEQUENT GRANTOR REBUTS THE PRESUMPTION OF IDENTITY WITH A PRIOR GRANTEE OTHERWISE ARISING FROM IDENTITY OF NAME. |
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Term
2.6
Problem A: A deed describing Blackacre was signed and acknowledged by Helen Stone. The body of the deed identified the grantor as Hilda Stone. May the discrepancy between the name of the grantor as stated in the body of the deed and in the signature and acknowledgment be disregarded? |
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Definition
Answer: Yes.
STANDARD: IF THE SIGNATURE ON A CONVEYANCE IS IDENTICAL TO THE NAME STATED IN THE ACKNOWLEDGMENT, A DISCREPANCY IN THE NAME OF THE CONVEYING PARTY AS STATED IN THE BODY OF THE CONVEYANCE MAY ORDINARILY BE DISREGARDED. |
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Term
2.6
Problem B: A deed describing Blackacre was signed by Hilda Stone but the name stated in the acknowledgment was Helen Stone. The body of the deed identified the grantor as Helen Stone. May the discrepancy between the signature and the name in the acknowledgment be disregarded? |
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Definition
Answer: No. The deed purporting to be signed by Hilda Stone but acknowledged by Helen Stone is not admissible to prove a conveyance by Helen Stone without proof that the grantor was known by both names. In the absence of such evidence, there can be no presumption that Hilda Stone and Helen Stone are the same person.
STANDARD: IF THE SIGNATURE ON A CONVEYANCE IS IDENTICAL TO THE NAME STATED IN THE ACKNOWLEDGMENT, A DISCREPANCY IN THE NAME OF THE CONVEYING PARTY AS STATED IN THE BODY OF THE CONVEYANCE MAY ORDINARILY BE DISREGARDED. |
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Term
Evidence that a grantor was known by two different names set forth
in an instrument may be established by an affidavit as to the grantor’s
identity. True or false? |
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Definition
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Term
2.7
Problem A: Blackacre was deeded to Star Company, a Michigan corporation, which was the correct name of the grantee. A deed describing Blackacre was later executed by The Star Co., a Michigan corporation. May the names of the grantor and grantee be presumed to identify the same corporation? |
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Definition
Answer: Yes.
STANDARD: A VARIATION IN A CORPORATE NAME ARISING THROUGH THE USE OR NON-USE OF A COMMONLY RECOGNIZED
ABBREVIATION SUCH AS “CO.,” “INC.,” “CORP.,” “LTD.,” “P.C.,” OR “&”, OR THE OMISSION OR INCLUSION OF THE WORD “THE”, MAY BE DISREGARDED UNLESS AN EXAMINER IS OTHERWISE PUT ON INQUIRY. |
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Term
2.7
Problem B: Blackacre was deeded to Stars & Stripes Flag Company, Inc., a Michigan corporation. A deed describing Blackacre was later executed by Stars and Stripes Flag Company, Incorporated, a Michigan corporation, which was the correct name of the grantor. May the names of the grantor and grantee be presumed to identify the same corporation? |
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Definition
Answer: Yes.
STANDARD: A VARIATION IN A CORPORATE NAME ARISING THROUGH THE USE OR NON-USE OF A COMMONLY RECOGNIZED
ABBREVIATION SUCH AS “CO.,” “INC.,” “CORP.,” “LTD.,” “P.C.,” OR “&”, OR THE OMISSION OR INCLUSION OF THE WORD “THE”, MAY BE DISREGARDED UNLESS AN EXAMINER IS OTHERWISE PUT ON INQUIRY. |
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Term
2.7
Problem C: Star Corp., a Michigan corporation, was the grantee in a deed describing Blackacre and the grantor in a later deed describing Blackacre. The correct corporate name is The Star Corporation, a Michigan corporation. May the names Star Corp. and The Star Corporation be presumed to identify the same corporation? |
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Definition
Answer: Yes.
STANDARD: A VARIATION IN A CORPORATE NAME ARISING THROUGH THE USE OR NON-USE OF A COMMONLY RECOGNIZED
ABBREVIATION SUCH AS “CO.,” “INC.,” “CORP.,” “LTD.,” “P.C.,” OR “&”, OR THE OMISSION OR INCLUSION OF THE WORD “THE”, MAY BE DISREGARDED UNLESS AN EXAMINER IS OTHERWISE PUT ON INQUIRY. |
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Term
3.1
Problem: Martha Davis executed a deed describing Blackacre. The deed lacked a date of execution and a date of
acknowledgment. Is the deed valid? |
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Definition
Answer: Yes.
STANDARD: THE OMISSION OF THE DATE OF EXECUTION OR THE DATE OF ACKNOWLEDGMENT DOES NOT INVALIDATE AN OTHERWISE VALID CONVEYANCE. |
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Term
3.2
Problem A: On Thanksgiving Day, Martha Davis executed and delivered a land contract describing Blackacre. Is the land
contract valid? |
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Definition
Answer: Yes.
STANDARD: AN INSTRUMENT AFFECTING REAL PROPERTY MAY BE VALIDLY EXECUTED OR DELIVERED ON THE LEGAL HOLIDAY AND, SINCE JUNE 23, 1974, ON A SUNDAY. |
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Term
3.2
Problem B: On Labor Day, Martha Davis executed and delivered a deed describing Blackacre to John Doe. Is the deed valid? |
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Definition
Answer: Yes.
STANDARD: AN INSTRUMENT AFFECTING REAL PROPERTY MAY BE VALIDLY EXECUTED OR DELIVERED ON THE LEGAL HOLIDAY AND, SINCE JUNE 23, 1974, ON A SUNDAY. |
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Term
3.2
Problem C: On Sunday, December 8, 1974, Martha Davis executed and delivered a deed describing Blackacre to John Doe. Is the deed valid? |
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Definition
Answer: Yes.
STANDARD: AN INSTRUMENT AFFECTING REAL PROPERTY MAY BE VALIDLY EXECUTED OR DELIVERED ON THE LEGAL HOLIDAY AND, SINCE JUNE 23, 1974, ON A SUNDAY. |
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Term
3.3
Problem A: George Davis, a single man, who owned the north half of Section 35, deeded the northeast quarter of Section 35
to Henry Parker. Davis later conveyed the northwest quarter of Section 35 to Parker, by a deed containing a recital that
it was executed to correct the erroneous description in the previous deed. Davis then executed a deed of the northeast
quarter of Section 35 to William Cox. Did Cox acquire marketable title to the northeast quarter of Section 35? |
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Definition
Answer: No. The later deed from Davis to Parker did not divest Parker of his previously acquired title to the northeast
quarter.
STANDARD: A GRANTOR WHO HAS CONVEYED REAL PROPERTY BY AN EFFECTIVE, UNAMBIGUOUS INSTRUMENT CANNOT, BY EXECUTING A
SUBSEQUENT INSTRUMENT, MAKE A SUBSTANTIAL CHANGE IN THE NAME OF THE GRANTEE, DECREASE THE AREA OF THE REAL PROPERTY OR THE
EXTENT OF THE ESTATE GRANTED, IMPOSE A CONDITION OR LIMITATION UPON THE INTEREST GRANTED, OR OTHERWISE DEROGATE FROM THE
FIRST CONVEYANCE, EVEN THOUGH THE SUBSEQUENT INSTRUMENT PURPORTS TO CORRECT OR MODIFY THE FORMER.
Comment A: The Committee recognizes that there are circumstances under which a later “corrective” deed, not inconsistent with the prior instrument and intended to clarify some ambiguity contained in the deed, may be effective.
Comment B: An inconsistent subsequent deed may operate to create a cloud upon the title acquired under a prior deed. |
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Term
3.3
Problem B: George Davis deeded Blackacre to Jane Doe and Ruth Roe as tenants in common. Later, Davis deeded Blackacre to
Jane Doe and Ruth Roe, “as joint tenants with right of survivorship.” Jane Doe then deeded an undivided one-half interest
in Blackacre to Simon Grant. Did Grant acquire marketable title to an undivided one-half interest in Blackacre
notwithstanding Davis’s later deed? |
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Definition
Answer: Yes. Jane Doe had acquired an undivided one-half interest through Davis’s first deed.
STANDARD: A GRANTOR WHO HAS CONVEYED REAL PROPERTY BY AN EFFECTIVE, UNAMBIGUOUS INSTRUMENT CANNOT, BY EXECUTING A
SUBSEQUENT INSTRUMENT, MAKE A SUBSTANTIAL CHANGE IN THE NAME OF THE GRANTEE, DECREASE THE AREA OF THE REAL PROPERTY OR THE
EXTENT OF THE ESTATE GRANTED, IMPOSE A CONDITION OR LIMITATION UPON THE INTEREST GRANTED, OR OTHERWISE DEROGATE FROM THE
FIRST CONVEYANCE, EVEN THOUGH THE SUBSEQUENT INSTRUMENT PURPORTS TO CORRECT OR MODIFY THE FORMER.
Comment A: The Committee recognizes that there are circumstances under which a later “corrective” deed, not inconsistent with the prior instrument and intended to clarify some ambiguity contained in the deed, may be effective.
Comment B: An inconsistent subsequent deed may operate to create a cloud upon the title acquired under a prior deed. |
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Term
3.4
Problem: John Doe conveyed Blackacre by a deed which failed to state his marital status. The deed was recorded in 1990. In 2001, is the deed constructive notice of the conveyance? |
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Definition
Answer: Yes.
STANDARD: AN INSTRUMENT OF CONVEYANCE WHICH FAILS TO STATE THE MARITAL STATUS OF THE MALE GRANTOR, IF RECORDED FOR AT
LEAST 10 YEARS, CONSTITUTES CONSTRUCTIVE NOTICE OF THE CONVEYANCE.
Comment: Although an instrument of conveyance lacking a statement of the marital status of a male grantor is not entitled
to be recorded, the recording may constitute constructive notice of the interest conveyed before the expiration of 10 years. MCL 565.604. Aultman v Pettys, 59 Mich 482 (1886). |
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Term
3.5
Problem A: Blackacre was conveyed by deed executed in Michigan without witnesses and recorded on April 1, 1992. On June 21, 2002, is the deed constructive notice of the conveyance? |
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Definition
Answer: Yes.
STANDARD: A DEED EXECUTED IN MICHIGAN HAVING FEWER THAN TWO WITNESSES WAS NOT ENTITLED TO BE RECORDED BEFORE MARCH 4,
2002; HOWEVER, IF RECORDED FOR AT LEAST 10 YEARS, THE DEED WILL CONSTITUTE CONSTRUCTIVE NOTICE OF THE CONVEYANCE. A DEED
EXECUTED IN MICHIGAN WITHOUT WITNESSES IS ENTITLED TO BE RECORDED ON OR AFTER MARCH 4, 2002.
Comment A: A deed not witnessed will convey title as between the parties. Fulton v Priddy, 123 Mich 298, 82 NW 65 (1900).
Comment B: 2002 P.A. 19 and 2002 P.A. 23, both effective March 4, 2002, eliminated any witnessing requirement for the
recording of an instrument affecting Michigan real property. See Standard 3.9 as to instruments executed outside of
Michigan.
Note: The Committee expresses no opinion with respect to the effect, if any, of 2002 P.A. 23 on a deed with fewer than two witnesses and recorded less than 10 years before March 4, 2002. |
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Term
3.5
Problem B: Blackacre was conveyed by deed executed in Michigan without witnesses and recorded on March 4, 2002. On June 1, 2002, is the deed constructive notice of the conveyance? |
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Definition
Answer: Yes
STANDARD: A DEED EXECUTED IN MICHIGAN HAVING FEWER THAN TWO WITNESSES WAS NOT ENTITLED TO BE RECORDED BEFORE MARCH 4,
2002; HOWEVER, IF RECORDED FOR AT LEAST 10 YEARS, THE DEED WILL CONSTITUTE CONSTRUCTIVE NOTICE OF THE CONVEYANCE. A DEED
EXECUTED IN MICHIGAN WITHOUT WITNESSES IS ENTITLED TO BE RECORDED ON OR AFTER MARCH 4, 2002.
Comment A: A deed not witnessed will convey title as between the parties. Fulton v Priddy, 123 Mich 298, 82 NW 65 (1900).
Comment B: 2002 P.A. 19 and 2002 P.A. 23, both effective March 4, 2002, eliminated any witnessing requirement for the
recording of an instrument affecting Michigan real property. See Standard 3.9 as to instruments executed outside of Michigan.
Note: The Committee expresses no opinion with respect to the effect, if any, of 2002 P.A. 23 on a deed with fewer than two witnesses and recorded less than 10 years before March 4, 2002. |
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Term
3.6
Problem: Blackacre was conveyed by a deed executed in 1967 which recited the consideration to be $10,000. No federal documentary stamps were affixed to the deed. Is the deed entitled to be recorded? |
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Definition
Answer: Yes.
STANDARD: THE ABSENCE OF FEDERAL DOCUMENTARY STAMPS FROM THE DEED EXECUTED BEFORE JANUARY 1, 1968 DOES NOT AFFECT
MARKETABILITY OF TITLE OR PREVENT THE DEED FROM BEING ENTITLED TO BE RECORDED.
Comment: No statute or reported case in Michigan has required the affixing of federal documentary stamps for valid delivery or recording, and the attorney general has opined that “the affixing of such stamps is no responsibility of the Register as far as recording is concerned.” OAG 1944-1975, No O-2923, p 151 (December 19, 1944).
The tax imposed by 26 USC 4361, payment of which was evidenced by attaching federal documentary stamps, does not apply on or after January 1, 1968. |
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Term
3.7
Problem A: A deed stating a consideration of $5,000 was recorded in 1998. No documentary stamps evidencing payment of the Michigan state or county transfer tax were affixed. Is the recorded deed valid as to notice? |
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Definition
Answer: Yes.
STANDARD: THE VALIDITY AS TO NOTICE OF A RECORDED INSTRUMENT IS NOT AFFECTED BY THE ABSENCE OF DOCUMENTARY STAMPS EVIDENCING PAYMENT OF THE MICHIGAN STATE OR COUNTY TRANSFER TAX OR THE ABSENCE OF A STATEMENT OF THE REASON THE INSTRUMENT IS EXEMPT FROM TRANSFER TAX. |
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Term
3.7
Problem B: A deed stating a consideration of “less than $100” was recorded in 1998. The deed did not contain a statement as to the basis for exemption from payment of Michigan state or county transfer tax. Is the recorded deed valid as to notice? |
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Definition
Answer: Yes.
STANDARD: THE VALIDITY AS TO NOTICE OF A RECORDED INSTRUMENT IS NOT AFFECTED BY THE ABSENCE OF DOCUMENTARY STAMPS EVIDENCING PAYMENT OF THE MICHIGAN STATE OR COUNTY TRANSFER TAX OR THE ABSENCE OF A STATEMENT OF THE REASON THE INSTRUMENT IS EXEMPT FROM TRANSFER TAX. |
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Term
3.8
Problem A: George Davis mortgaged Blackacre, a parcel of real property in Michigan, by a mortgage executed and acknowledged in another state in conformity with the laws of that state. The marital status of George Davis is not stated in the mortgage. Is the mortgage entitled to be recorded? |
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Definition
Answer: No. The statute requiring that the marital status of a male grantor and mortgagor be stated applies to instruments
executed or acknowledged both within and outside of Michigan.
STANDARD: A CONVEYANCE OF MORTGAGE OF MICHIGAN REAL PROPERTY, ALTHOUGH EXECUTED OR ACKNOWLEDGED OUTSIDE OF MICHIGAN, IS SUBJECT TO ALL MICHIGAN RECORDING REQUIREMENTS EXCEPT THOSE MADE INAPPLICABLE BY LAW. |
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Term
3.8
Problem B: Martha Davis, describing herself as the survivor of George Davis, deceased, conveyed Blackacre, a parcel of real property in Michigan, by a deed executed and acknowledged in another state in conformity with the laws of that state.
No certified copy of the death certificate or other recordable proof of George Davis’s death was attached to the deed or previously recorded. Is the deed entitled to be recorded? |
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Definition
Answer: No.
STANDARD: A CONVEYANCE OF MORTGAGE OF MICHIGAN REAL PROPERTY, ALTHOUGH EXECUTED OR ACKNOWLEDGED OUTSIDE OF MICHIGAN, IS SUBJECT TO ALL MICHIGAN RECORDING REQUIREMENTS EXCEPT THOSE MADE INAPPLICABLE BY LAW. |
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Term
3.8
Problem C: George Davis, a single man, conveyed Blackacre, a parcel of real property in Michigan, by a deed executed and acknowledged in another state in conformity with the laws of that state. While Davis’s marital status is stated in the deed, the address of the grantee is not stated, the name of the notary public is not typed or printed on the instrument, and the first page of the instrument does not contain at least a two-and-one-half-inch top margin. Is the deed entitled to be recorded? |
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Definition
Answer: Yes. The statute which imposes these and certain other recording requirements is expressly made inapplicable to
instruments executed or acknowledged outside of Michigan.
STANDARD: A CONVEYANCE OF MORTGAGE OF MICHIGAN REAL PROPERTY, ALTHOUGH EXECUTED OR ACKNOWLEDGED OUTSIDE OF MICHIGAN, IS SUBJECT TO ALL MICHIGAN RECORDING REQUIREMENTS EXCEPT THOSE MADE INAPPLICABLE BY LAW. |
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Term
3.8
Problem D: George Davis, a single man, conveyed Blackacre, a parcel of real property in Michigan, by a deed executed and acknowledged in another state in conformity with the laws of that state. While Davis’s marital status is stated in the deed, the address of the grantee is not stated, the name of the notary public is not typed or printed on the instrument, and the first page of the instrument does not contain at least a two-and-one-half-inch top margin. The deed is dated May 1, 1997 and purports to evidence more than one recordable event. Is the deed entitled to be recorded? |
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Definition
STANDARD: A CONVEYANCE OF MORTGAGE OF MICHIGAN REAL PROPERTY, ALTHOUGH EXECUTED OR ACKNOWLEDGED OUTSIDE OF MICHIGAN, IS SUBJECT TO ALL MICHIGAN RECORDING REQUIREMENTS EXCEPT THOSE MADE INAPPLICABLE BY LAW.
Comment A: The Attorney General has opined that the statute requiring the marital status of male grantors and mortgagors to be stated in an instrument of conveyance does not apply to a male grantor or mortgagor acting in a representative capacity whose wife holds no interest in the real property conveyed or mortgaged. OAG 1915, p. 166 (September 22, 1915).
Comment B: MCL 565.202 permits certain recording deficiencies to be cured by the recording of an affidavit complying with that provision concurrently with the recording of the instrument containing the recording deficiencies. |
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Term
3.9
Problem A: Michigan real property was conveyed by a deed executed on July 10, 2001 in a jurisdiction in which witnesses were not required. The deed was not witnessed but otherwise complied with Michigan recording requirements and was presented for recording on March 1, 2002. Was the deed entitled to be recorded? |
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Definition
Answer: Yes.
STANDARD: A DEED EXECUTED OUTSIDE OF MICHIGAN HAVING FEWER THAN TWO WITNESSES WAS ENTITLED TO BE RECORDED IN MICHIGAN BEFORE MARCH 4, 2002 IF THE DEED COMPLIED WITH THE WITNESSING REQUIREMENTS OF THE LAW OF THE STATE, TERRITORY, DISTRICT OR COUNTRY IN WHICH IT WAS EXECUTED. A DEED EXECUTED OUTSIDE OF MICHIGAN WITHOUT WITNESSES IS ENTITLED TO BE RECORDED IN MICHIGAN ON OR AFTER MARCH 4, 2002. |
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Term
3.9
Problem B: Michigan real property was conveyed by a deed executed on March 4, 2002 in a foreign jurisdiction. At the time the deed was executed and when it was presented for recording in Michigan, the foreign jurisdiction required that signatures on deeds be witnessed. The deed was not witnessed but otherwise complied with Michigan recording requirements and was presented for recording on March 14, 2002. Was the deed entitled to be recorded? |
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Definition
Answer: Yes.
STANDARD: A DEED EXECUTED OUTSIDE OF MICHIGAN HAVING FEWER THAN TWO WITNESSES WAS ENTITLED TO BE RECORDED IN MICHIGAN BEFORE MARCH 4, 2002 IF THE DEED COMPLIED WITH THE WITNESSING REQUIREMENTS OF THE LAW OF THE STATE, TERRITORY, DISTRICT OR COUNTRY IN WHICH IT WAS EXECUTED. A DEED EXECUTED OUTSIDE OF MICHIGAN WITHOUT WITNESSES IS ENTITLED TO BE RECORDED IN MICHIGAN ON OR AFTER MARCH 4, 2002.
Comment: 2002 P.A. 19 and 2002 P.A. 23, both effective March 4, 2002, eliminated any witnessing requirement for the recording of an instrument affecting Michigan real property, regardless of where it was executed. See Standard 3.5 as to instruments executed in Michigan. |
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Term
3.10
Problem A: John Doe conveyed Blackacre, a parcel of real property in Michigan, by a deed acknowledged before a Minnesota county auditor, who had authority to perform the acknowledgment, as evidenced by a certificate of a clerk of a court of record attached to the deed. Is the deed entitled to be recorded? |
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Definition
Answer: Yes.
STANDARD: A CONVEYANCE OF MICHIGAN REAL PROPERTY, ACKNOWLEDGED BEFORE A PERSON AUTHORIZED BY THE LAW OF ANOTHER STATE, TERRITORY OR DISTRICT OF THE UNITED STATES TO PERFORM THE ACKNOWLEDGMENT, IS RECORDABLE IN MICHIGAN IF A CERTIFICATE OF AUTHORITY OR THE SEAL OF OFFICE OF THE PERSON IS ATTACHED TO THE CONVEYANCE. |
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Term
3.10
Problem B: John Doe conveyed Blackacre, a parcel of real property in Michigan, by a deed acknowledged before an Illinois notary public. The notary public’s seal of office was affixed to the deed. Is the deed entitled to be recorded? |
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Definition
Answer: Yes.
STANDARD: A CONVEYANCE OF MICHIGAN REAL PROPERTY, ACKNOWLEDGED BEFORE A PERSON AUTHORIZED BY THE LAW OF ANOTHER STATE, TERRITORY OR DISTRICT OF THE UNITED STATES TO PERFORM THE ACKNOWLEDGMENT, IS RECORDABLE IN MICHIGAN IF A CERTIFICATE OF AUTHORITY OR THE SEAL OF OFFICE OF THE PERSON IS ATTACHED TO THE CONVEYANCE |
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Term
3.11
Problem A: Blackacre was conveyed in 1998 by a deed acknowledged before a Florida notary public. No notarial seal or other authentication was attached to the deed. Is the deed entitled to be recorded? |
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Definition
Answer: Yes.
STANDARD: ON OR AFTER MARCH 20, 1970, THE EFFECTIVE DATE OF THE UNIFORM RECOGNITION OF ACKNOWLEDGMENTS ACT, AN INSTRUMENT AFFECTING MICHIGAN REAL PROPERTY MAY BE ACKNOWLEDGED WITHIN THE UNITED STATES AND OUTSIDE OF MICHIGAN:
(A) BEFORE A NOTARY PUBLIC AUTHORIZED TO PERFORM NOTARIAL ACTS IN THE PLACE WHERE THE ACKNOWLEDGMENT IS TAKEN, OR A JUDGE, CLERK OR DEPUTY CLERK OF ANY COURT OF RECORD IN SUCH PLACE. IN SUCH A CASE, THE SIGNATURE, TITLE, AND SERIAL NUMBER, IF ANY, OF THE PERSON PERFOMRING THE ACKNOWLEDGMENT ARE SUFFICIENT PROOF OF AUTHORITY TO PERFORM THE ACT; OR
(B) BEFORE ANY OTHER PERSON AUTHORIZED TO PERFORM NOTARIAL ACTS IN THE PLACE WHERE THE ACKNOWLEDGMENT IS TAKEN. IN SUCH A CASE, THE AUTHORITY OF THE PERSON PERFORMING THE ACKNOWLEDGMENT MUST BE EVIDENCED BY THE CERTIFICATE OF THE CLERK OF A COURT OF RECORD IN THE PLACE WHERE THE ACKNOWLEDGMENT OCCURS AS TO THE OFFICIAL CHARACTER OF THE PERSON PERFORMING THE ACKNOWLEDGMENT AND HIS OR HER AUTHORITY TO DO SO; OR
(C) IF PERFORMED FOR A MEMBER OF THE ARMED FORCES, A MERCHANT SEAMAN, A PERSON SERVING WITH OR ACCOMPANYING THE ARMED FORCES OR A DEPENDENT OF THE PERSON, BEFORE A COMMISSIONED OFFICER IN ACTIVE SERVICE WITH THE ARMED FORCES OF THE UNITED STATES; OR
(D) ANY OTHER PERSON AUTHORIZED BY REGULATION OF THE ARMED FORCES TO PERFORM NOTARIAL ACTS. IN SUCH A CASE, THE SIGNATURE, RANK OR TITLE, AND SERIAL NUMBER, IF ANY, OF THE PERSON PERFORMING THE ACKNOWLEDGMENT ARE SUFFICIENT PROOF OF AUTHORITY TO PERFORM THE ACT. |
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Term
3.11
Problem B: Blackacre was conveyed by a deed executed in 2000 and acknowledged before the mayor of Gulfport, Mississippi, who under Mississippi law was authorized to perform acknowledgments. Attached to the deed was a certificate of the clerk of a court of record in Gulfport, Mississippi certifying the official capacity of the mayor and the mayor’s authority to perform acknowledgments. Is the deed entitled to be recorded? |
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Definition
Answer: Yes.
STANDARD: ON OR AFTER MARCH 20, 1970, THE EFFECTIVE DATE OF THE UNIFORM RECOGNITION OF ACKNOWLEDGMENTS ACT, AN INSTRUMENT AFFECTING MICHIGAN REAL PROPERTY MAY BE ACKNOWLEDGED WITHIN THE UNITED STATES AND OUTSIDE OF MICHIGAN:
(A) BEFORE A NOTARY PUBLIC AUTHORIZED TO PERFORM NOTARIAL ACTS IN THE PLACE WHERE THE ACKNOWLEDGMENT IS TAKEN, OR A JUDGE, CLERK OR DEPUTY CLERK OF ANY COURT OF RECORD IN SUCH PLACE. IN SUCH A CASE, THE SIGNATURE, TITLE, AND SERIAL NUMBER, IF ANY, OF THE PERSON PERFOMRING THE ACKNOWLEDGMENT ARE SUFFICIENT PROOF OF AUTHORITY TO PERFORM THE ACT; OR
(B) BEFORE ANY OTHER PERSON AUTHORIZED TO PERFORM NOTARIAL ACTS IN THE PLACE WHERE THE ACKNOWLEDGMENT IS TAKEN. IN SUCH A CASE, THE AUTHORITY OF THE PERSON PERFORMING THE ACKNOWLEDGMENT MUST BE EVIDENCED BY THE CERTIFICATE OF THE CLERK OF A COURT OF RECORD IN THE PLACE WHERE THE ACKNOWLEDGMENT OCCURS AS TO THE OFFICIAL CHARACTER OF THE PERSON PERFORMING THE ACKNOWLEDGMENT AND HIS OR HER AUTHORITY TO DO SO; OR
(C) IF PERFORMED FOR A MEMBER OF THE ARMED FORCES, A MERCHANT SEAMAN, A PERSON SERVING WITH OR ACCOMPANYING THE ARMED FORCES OR A DEPENDENT OF THE PERSON, BEFORE A COMMISSIONED OFFICER IN ACTIVE SERVICE WITH THE ARMED FORCES OF THE UNITED STATES; OR
(D) ANY OTHER PERSON AUTHORIZED BY REGULATION OF THE ARMED FORCES TO PERFORM NOTARIAL ACTS. IN SUCH A CASE, THE SIGNATURE, RANK OR TITLE, AND SERIAL NUMBER, IF ANY, OF THE PERSON PERFORMING THE ACKNOWLEDGMENT ARE SUFFICIENT PROOF OF AUTHORITY TO PERFORM THE ACT. |
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Term
3.12
Problem: Blackacre was conveyed by a deed executed in 1969 in a foreign country. The deed was acknowledged before an officer authorized by Michigan statute to perform acknowledgments in foreign countries and his or her authority to do so was evidenced in the manner prescribed by the statute. Is the deed entitled to be recorded? |
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Definition
Answer: Yes.
STANDARD: AN INSTRUMENT AFFECCTING MICHIGAN REAL PROPERTY, EXECUTED IN A FOREIGN COUNTRY BEFORE MARCH 20, 1970, IS ENTITLED TO BE RECORDED IN MICHIGAN ONLY IF THE INSTRUMENT WAS ACKNOWLEDGED TO BEFORE ONE OF THE OFFICERS AUTHORIZED BY MICHIGAN STATUTE TO PERFORM ACKNOWLEDGMENTS AND IF THE AUTHORITY OF THE PERSON PERFOMRING THE ACKNOWLEDGMENT IS EVIDENCED IN THE MANNER PRESCRIBED BY THE STATUTE.
Comment: Before March 20, 1970, the effective date of 1969 P.A. 57, the Uniform Recognition of Acknowledgments Act (MCL 565.261 through 565.270), an instrument affecting Michigan real property could be acknowledged in a foreign country only before (a) a notary public, (b) certain specified officers in the United States diplomatic and consular service (MCL 565.11 and 565.256), or (c) with respect to persons serving in or with the armed forces of the United States or civilian employees and their dependents, a commissioned officer in the armed forces (MCL 565.251a; see, Standard 3.14).
Acknowledgments performed by a notary public were required to be authenticated by his or her seal. Those performed by a diplomatic or consular officer could be verified by the officer’s certificate (MCL 565.11) or his or her seal (MCL 565.256).
As set forth in the Authorities, MCL 565.251a and 565.256 have been repealed. Because MCL 565.11 is still in effect, an instrument may be acknowledged and authenticated pursuant to that statute, notwithstanding the simplified procedures authorized by the Uniform Recognition of Acknowledgments Act. See, Standard 3.13.
The Uniform Recognition of Acknowledgments Act has no validating provision and does not affect notarial acts performed before its effective date, March 20, 1970. MCL 565.268. |
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Term
3.13
Problem A: Blackacre was conveyed by a deed executed in 1998 and acknowledged in a foreign country before a person authorized to perform notarial acts in the place where the acknowledgment was performed, and whose official seal was affixed to the deed. Is the deed entitled to be recorded? |
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Definition
Answer: Yes.
STANDARD: AN INSTRUMENT AFFECTING MICHIGAN REAL PROPERTY, EXECUTED IN A FOREIGN COUNTRY ON OR AFTER MARCH 20, 1970 BEFORE A PERSON AUTHORIZED BY THE LAW OF THE FOREIGN COUNTRY TO PERFORM NOTARIAL ACTS IN THE PLACE WHERE THE ACKNOWLEDGEMENT IS PERFORMED, IS ENTITLED TO BE RECORDED IN MICHIGAN IF:
(A) A FOREIGN SERVICE OFFICER OF THE UNITED STATES RESIDENT IN THE FOREIGN COUNTRY WHERE THE ACKNOWLEDGMENT IS PERFORMED, OR A DIPLOMATIC OR CONSULAR OFFICER OF THE FOREIGN COUNTRY RESIDENT IN THE UNITED STATES, CERTIFIES THAT THE PERSON PERFORMING THE ACKNOLEDGEMENT WAS AUTHROIZED TO DO SO;
(B) THE OFFICIAL SEAL OF THE PERSON PERFORMING THE ACKNOWLEDGMENT IS AFFIXED TO THE INSTRUMENT; OR
(C) THE TITLE AND INDICATION OF AUTHRORITY TO PERFORM ACKNOWLEDGMENTS APPEARS EITHER IN A DIGEST OF FOREIGN LAW OR IN A LIST CUSTOMARILY USED AS A SOURCE OF THE INFORMATION. |
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Term
3.13
Problem B: Same facts as in Problem A, except that instead of an official seal there was affixed to the instrument a statement of a consular officer of the foreign country resident in the United States certifying that the person performing the acknowledgment was authorized to do so. Is the deed entitled to be recorded? |
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Definition
Answer: Yes.
STANDARD: AN INSTRUMENT AFFECTING MICHIGAN REAL PROPERTY, EXECUTED IN A FOREIGN COUNTRY ON OR AFTER MARCH 20, 1970 BEFORE A PERSON AUTHORIZED BY THE LAW OF THE FOREIGN COUNTRY TO PERFORM NOTARIAL ACTS IN THE PLACE WHERE THE ACKNOWLEDGEMENT IS PERFORMED, IS ENTITLED TO BE RECORDED IN MICHIGAN IF:
(A) A FOREIGN SERVICE OFFICER OF THE UNITED STATES RESIDENT IN THE FOREIGN COUNTRY WHERE THE ACKNOWLEDGMENT IS PERFORMED, OR A DIPLOMATIC OR CONSULAR OFFICER OF THE FOREIGN COUNTRY RESIDENT IN THE UNITED STATES, CERTIFIES THAT THE PERSON PERFORMING THE ACKNOLEDGEMENT WAS AUTHROIZED TO DO SO;
(B) THE OFFICIAL SEAL OF THE PERSON PERFORMING THE ACKNOWLEDGMENT IS AFFIXED TO THE INSTRUMENT; OR
(C) THE TITLE AND INDICATION OF AUTHRORITY TO PERFORM ACKNOWLEDGMENTS APPEARS EITHER IN A DIGEST OF FOREIGN LAW OR IN A LIST CUSTOMARILY USED AS A SOURCE OF THE INFORMATION. |
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Term
3.13
Problem C: Blackacre was conveyed by a deed executed in 1996 and acknowledged in Belfast, Northern Ireland before a Commissioner for Oaths. Martindale-Hubbell International Law Digest (1996), NI-1 Northern Ireland Law Digest, states that “Acknowledgment of any instrument may be made in Northern Ireland before a Commissioner for Oaths.” Is the deed entitled to be recorded? |
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Definition
Answer: Yes.
STANDARD: AN INSTRUMENT AFFECTING MICHIGAN REAL PROPERTY, EXECUTED IN A FOREIGN COUNTRY ON OR AFTER MARCH 20, 1970 BEFORE A PERSON AUTHORIZED BY THE LAW OF THE FOREIGN COUNTRY TO PERFORM NOTARIAL ACTS IN THE PLACE WHERE THE ACKNOWLEDGEMENT IS PERFORMED, IS ENTITLED TO BE RECORDED IN MICHIGAN IF:
(A) A FOREIGN SERVICE OFFICER OF THE UNITED STATES RESIDENT IN THE FOREIGN COUNTRY WHERE THE ACKNOWLEDGMENT IS PERFORMED, OR A DIPLOMATIC OR CONSULAR OFFICER OF THE FOREIGN COUNTRY RESIDENT IN THE UNITED STATES, CERTIFIES THAT THE PERSON PERFORMING THE ACKNOLEDGEMENT WAS AUTHROIZED TO DO SO;
(B) THE OFFICIAL SEAL OF THE PERSON PERFORMING THE ACKNOWLEDGMENT IS AFFIXED TO THE INSTRUMENT; OR
(C) THE TITLE AND INDICATION OF AUTHRORITY TO PERFORM ACKNOWLEDGMENTS APPEARS EITHER IN A DIGEST OF FOREIGN LAW OR IN A LIST CUSTOMARILY USED AS A SOURCE OF THE INFORMATION. |
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Term
3.14
Problem: George Davis, a single man and a member of the United States armed forces, conveyed Michigan real property by a deed executed in 1998. The deed was acknowledged in Alabama before a major in the United States Army, whose rank and serial number are set forth in the deed. Is the deed entitled to be recorded? |
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Definition
Answer: Yes.
STANDARD: AN INSTRUMENT AFFECTING MICHIGAN REAL PROPERTY, EXECUTED BY THE MEMBER OF THE UNITED STATES ARMED FORCES, A MERCHANT SEAMAN, OR A PERSON SERVING WITH OR ACCOMPANYING THE ARMED FORCES, OR THEIR DEPENDENTS, IS RECORDABLE IN MICHIGAN IF ACKNOWLEDGED OUTSIDE OF MICHIGAN BEFORE A COMISSIONED OFFICER, IN ACTIVE SERVICE WITH THE ARMED FORCES, ON OR AFTER MARCH 20, 1970. THE OFFICER'S SIGNATURE, RANK OR TITLE, AND SERIAL NUMBER, IF ANY, ARE SUFFICIENT PROOF OF THE OFFICER'S AUTHORITY.
Comment: The Uniform Recognition of Acknowledgements Act, (MCL 565.261 through 565.270), authorizes the performing of acknowledgments outside of Michigan by commissioned officers in active service with the armed forces, and by any other person authorized by regulation of the armed forces to do so, for members of the armed forces, merchant seamen, or any other person serving with or accompanying the armed forces, and their dependents. MCL 565.262. The signature, rank or title, and serial number, if any, of the person performing the acknowledgment are sufficient proof of his or her authority to do so, and prima facie evidence that he or she was a person with the designated title and that the signature was genuine. MCL 565.263. The Uniform Recognition of Acknowledgments Act pertains only to acknowledgments performed outside of Michigan. There is no statutory authority for a commissioned officer in the armed forces to perform an acknowledgment in Michigan of an instrument affecting Michigan real property. |
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Term
3.15
Problem A: Jane Doe, the owner of Blackacre, conveyed Blackacre to Simon Grant by a deed which was not recorded until 12 years after its execution and acknowledgment. No third party rights are involved. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes. Delivery is presumed from the recording of the deed. As between the parties, the deed is valid upon delivery without recording.
STANDARD: DELAY IN RECORDING A DEED WILL NOT AFFECT THE MARKETABILITY OF THE TITLE ACQUIRED BY THE GRANT EXCEPT IF THERE ARE INTERVENING RIGHTS OF A THIRD PARTY.
Comment: As between the parties, the presumption of delivery afforded by the recording of the deed may be rebutted by competent evidence. Clarke v Detroit & Security Trust Co, 257 Mich 416, 241 NW 217 (1932). |
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Term
3.15
Problem B: Same facts as in Problem A, except that Doe executed a mortgage of Blackacre six months after executing the deed to Grant. The mortgage was recorded. Did Grant acquire marketable title to Blackacre free of the mortgage? |
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Definition
Answer: No.
STANDARD: DELAY IN RECORDING A DEED WILL NOT AFFECT THE MARKETABILITY OF THE TITLE ACQUIRED BY THE GRANT EXCEPT IF THERE ARE INTERVENING RIGHTS OF A THIRD PARTY.
Comment: As between the parties, the presumption of delivery afforded by the recording of the deed may be rebutted by competent evidence. Clarke v Detroit & Security Trust Co, 257 Mich 416, 241 NW 217 (1932). |
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Term
3.16
Problem A: John Doe executed a deed to Mary Roe describing Blackacre, pursuant to a power of attorney granted to him by Jane Doe, the owner of Blackacre. The power of attorney was signed by Jane Doe and was recorded. It contained language stating the intent of Jane Doe that the authority given to the attorney in fact was exercisable notwithstanding Jane Doe’s later disability or incapacity. At the time the deed was given, Jane Doe was under disability, and both John Doe and Mary Roe were aware of the disability. Did Mary Roe acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: AN INSTRUMENT OF CONVEYANCE, EXECUTED PURSUANT TO A POWER OF ATTORNEY STATING THE INTENT OF THE PRINCIPAL THAT THE AUTHORITY CONFERRERD IS EXERCISABLE NOTWITHSTANDING SUBSEQUENT DISABILITY OF INCAPACITY OF THE PRINCIPAL, IS EFFECTIVE NOTWITHSTANDING LATER DISABILITY OR INCAPACITY OF THE PRINCIPAL. |
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Term
3.16
Problem B: John Doe executed a deed to Mary Roe describing Blackacre, pursuant to a power of attorney granted to him by Jane Doe, the owner of
Blackacre. The power of attorney was signed by Jane Doe and was recorded. It contained language stating the intent of Jane Doe that the authority
given to the attorney in fact was exercisable notwithstanding Jane Doe’s later disability or incapacity. Before the execution of the deed, but after
the execution of the power of attorney, Jane Doe was determined to be incompetent, and a conservator of her estate was appointed and qualified. Did Mary Roe acquire marketable title to Blackacre? |
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Definition
Answer: Yes. Neither the incompetence of Jane Doe nor the appointment of a conservator for her estate automatically revoked the power of attorney.
The conservator, however, had the same power Jane Doe had, if the conservator had not been appointed, to revoke the power of attorney.
STANDARD: AN INSTRUMENT OF CONVEYANCE, EXECUTED PURSUANT TO A POWER OF ATTORNEY STATING THE INTENT OF THE PRINCIPAL THAT THE AUTHORITY CONFERRERD IS
EXERCISABLE NOTWITHSTANDING SUBSEQUENT DISABILITY OF INCAPACITY OF THE PRINCIPAL, IS EFFECTIVE NOTWITHSTANDING LATER DISABILITY OR INCAPACITY OF THE PRINCIPAL. |
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Term
3.16
Problem C: John Doe executed a deed to Mary Roe describing Blackacre, pursuant to a power of attorney granted to him by Jane Doe, the owner of Blackacre. The power of attorney was signed by Jane Doe and was recorded. The power of attorney did not contain language stating the intent of Jane Doe to confer upon the attorney in fact a power exercisable notwithstanding her later disability or incapacity. Did Mary Roe acquire marketable title to Blackacre? |
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Definition
Answer: No. However, if John Doe and Mary Roe had acted in good faith under the power of attorney without actual knowledge of the disability or
incapacity of Jane Doe, the action would have been binding upon Jane Doe, her heirs, devisees and personal representatives.
STANDARD: AN INSTRUMENT OF CONVEYANCE, EXECUTED PURSUANT TO A POWER OF ATTORNEY STATING THE INTENT OF THE PRINCIPAL THAT THE AUTHORITY CONFERRERD IS EXERCISABLE NOTWITHSTANDING SUBSEQUENT DISABILITY OF INCAPACITY OF THE PRINCIPAL, IS EFFECTIVE NOTWITHSTANDING LATER DISABILITY OR INCAPACITY OF THE PRINCIPAL.
Comment: Between December 23, 1976 and June 30, 1979, a power of attorney not affected by disability was known as a durable power of attorney and was governed by MCL 556.151 et seq. Effective July 1, 1979, MCL 556.151 et seq. was repealed by MCL 700.993, under which the former durable power of attorney became known as a power of attorney not affected by disability. Effective April 1, 2000, MCL 700.993 was repealed by MCL 700.8102 and MCL 700.5501 was enacted, defining a durable power of attorney as a power not affected by the principal’s subsequent disability or incapacity. The death of a principal who has executed a power of attorney, durable or otherwise, does not revoke or terminate the agency as to the attorney in fact or other person who, without actual knowledge of the principal’s death, acts in good faith under the power. The disability or incapacity of a principal who has previously executed a power of attorney that is not a durable power does not revoke or terminate the agency as to the attorney in fact or other person who, without actual knowledge of the principal’s disability or incapacity, acts in good faith under the power. MCL 700.5504. |
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Term
3.17
Problem A: John Doe executed a mortgage describing Blackacre and given in favor of Richard Roe. The mortgage included a statement that it was given
pursuant to a power of attorney granted to John Doe by Mary Smith, the owner of Blackacre. The power of attorney contained language authorizing John
Doe to sell and convey all real property owned by Mary Smith, specifically including Blackacre. The power of attorney did not refer, however, to the
mortgaging of real property. Is Blackacre subject to the mortgage executed by John Doe? |
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Definition
Answer: No.
STANDARD: AN INTEREST IN REAL PROPERTY MAY BE CONVEYED OR ENCUMBERED BY AN INSTRUMENT EXECUTED PURSUANT TO A POWER OF ATTORNEY ONLY IF THE POWER OF
ATTORNEY SPECIFICALLY AUTHORIZES THE ATTORNEY IN FACT TO CONVEY OR ENCUMBER THE INTEREST ON BEHALF OF THE PRINCIPAL. |
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Term
3.17
Problem B: John Doe gave a power of attorney to Richard Roe granting him the power to sell and convey all real property owned by John Doe. After
execution of the power of attorney, John Doe acquired title to Blackacre. Richard Roe subsequently executed a deed describing Blackacre given in
favor of James Smith pursuant to the power of attorney. Did Smith acquire marketable title to Blackacre? |
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Definition
Answer: No. The power of attorney did not grant power to the attorney in fact to sell and convey real property acquired by John Doe after he executed
the power of attorney.
STANDARD: AN INTEREST IN REAL PROPERTY MAY BE CONVEYED OR ENCUMBERED BY AN INSTRUMENT EXECUTED PURSUANT TO A POWER OF ATTORNEY ONLY IF THE POWER OF
ATTORNEY SPECIFICALLY AUTHORIZES THE ATTORNEY IN FACT TO CONVEY OR ENCUMBER THE INTEREST ON BEHALF OF THE PRINCIPAL. |
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Term
3.17
Problem C: John Doe gave a power of attorney to Richard Roe, granting him the power to sell and convey all real property owned by John Doe and “to
perform all acts necessary to effectuate the sale and conveyance.” John Doe was the owner of Blackacre. Richard Roe negotiated a sale of Blackacre
but could not attend the closing of the sale. Roe gave a power of attorney to James Smith authorizing Smith to execute the deed of Blackacre on
behalf of John Doe. Smith executed the deed and it was recorded. Did the deed convey marketable title to Blackacre? |
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Definition
Answer: No. The authority to sell and convey Blackacre given by John Doe to Richard Roe was neither delegable nor assignable. James Smith had no
authority to execute a deed of Blackacre.
STANDARD: AN INTEREST IN REAL PROPERTY MAY BE CONVEYED OR ENCUMBERED BY AN INSTRUMENT EXECUTED PURSUANT TO A POWER OF ATTORNEY ONLY IF THE POWER OF
ATTORNEY SPECIFICALLY AUTHORIZES THE ATTORNEY IN FACT TO CONVEY OR ENCUMBER THE INTEREST ON BEHALF OF THE PRINCIPAL. |
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Term
3.18
Problem A: George Davis conveyed Blackacre by deed to Simon Grant in 1990. The deed was not then recorded and Grant did not enter into possession.
Later, Davis conveyed Blackacre to Mary Smith for valuable consideration by a deed recorded in 1992. Smith had no knowledge of the deed from Davis to
Grant. The deed from Davis to Grant was recorded in 1994. Did Smith acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: A CONVEYANCE OF REAL PROPERTY IS VOID AS AGAINST THE GRANTEE IN A SUBSEQUENT RECORDED CONVEYANCE GIVEN FOR A VALUABLE CONSIDERATION, IF THE SUBSEQUENT GRANTEE HAS NO KNOWLEDGE OF THE PRIOR CONVEYANCE AND THE PRIOR CONVEYANCE IS NOT RECORDED OR IS RECORDED AFTER THE RECORDING OF THE SUBSEQUENT CONVEYANCE.
Comment: The Michigan Recording Act is a race-notice statute: the first interest-holder of record takes priority unless that person has notice of a prior unrecorded interest. Notice on the part of a subsequent grantee includes both imputed and actual knowledge of a prior unrecorded interest. Imputed knowledge, sometimes called inquiry notice or constructive notice, has been defined as having such knowledge as would cause a reasonable person to make further inquiry as to a prior interest. The subsequent grantee is then presumed to have notice of those facts which would have been discovered if the grantee had exercised ordinary diligence. Lakeside Associates v Toski Sands, 131 Mich App 292, 346 NW2d 92 (1983). |
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