Luthi v. Evans

223 Kan. 622, 576 P.2d 1064 (1978)

 

RULE:

In situations where an instrument of conveyance containing a sufficient description of the property conveyed is duly recorded but not properly indexed, the fact that it was not properly indexed by the register of deeds will not prevent constructive notice under the provisions of Kan. Stat. Ann. § 58-2222.

FACTS:

The owner assigned her interest in all her oil and gas leases in a particular county to the assignee. The instrument of conveyance contained a "Mother Hubbard" clause to describe the land in question. Later the same owner sold her interest in one of the wells in the same county to the buyer. The buyer filed suit to quiet title to the land. The district court found in favor of the buyer and the appellate court reversed. The buyer appealed and the court reversed. The statutes indicated that the legislature intended that recorded instruments of conveyance, to impart constructive notice to a subsequent purchaser or mortgagee, should describe the land conveyed with sufficient specificity so that the specific land conveyed could be identified. The recording of the assignment from the owner to the assignee, which did not describe with sufficient specificity the property covered by the conveyance, was not sufficient to impart constructive notice to a subsequent purchaser such as the buyer. Because the buyer had no actual knowledge of the prior assignment from the owner to the assignee, the later assignment to the buyer prevailed over the assignment from the owner to the assignee.

ISSUE:

Whether the recording of an instrument of conveyance which uses a "Mother Hubbard" clause to describe the property conveyed, constitutes constructive notice to a subsequent purchaser. 

ANSWER:

Yes.

CONCLUSION:

An instrument which contains a "Mother Hubbard" clause, describing the property conveyed in the general language involved here, is valid, enforceable, and effectively transfers the entire property interest as between the parties to the instrument. Such a transfer is not effective as to subsequent purchasers and mortgagees unless they have actual knowledge of the transfer. If, because of emergency, it becomes necessary to use a "Mother Hubbard" clause in an instrument of conveyance, the grantee may take steps to protect his title against subsequent purchasers. He may take possession of the property. Also, as soon as a specific description can be obtained, the grantee may identify the specific property covered by the conveyance by filing an affidavit or other appropriate instrument or document with the register of deeds.

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