Updates for the Week of June 24, 2014
An ambiguity in a deed, resulting from error in the metes and bounds description, can be resolved by ascertaining the grantor’s intention. A group of siblings fought a lawsuit over their mother’s conveyance of part of a 105-acre property to one brother. A 1988 deed from Bobbie Sue Morrow to her son Michael included a metes-and-bounds description of a 13-acre parcel, but the survey attached to the deed reflected a 28-acre parcel. Eleven years after the conveyance to Michael, Bobbie Sue conveyed the remaining portion of her 105-acre property to Michael’s siblings, who argued that Michael owned 13 acres, not 28. A Tennessee court, noting the difference between the metes and bounds description and the survey, acknowledged “ambiguity in the deed,” and determined the siblings’ relative ownership after examining their mother’s intent. The discrepancy justified consideration of circumstances outside the four corners of the deed for evidence of Bobbie Sue’s intent.
Was the mistake in the description or in the acreage conveyed? The lawyer who drafted the deed to Michael might have been confused because the property was shaped like an hourglass with a 30-foot gap separating the eastern and western ends. Although the general rule is that conflicts between a quantity of acreage and a description are resolved in favor of the description, the intention of the grantor is paramount. Michael’s mother’s intention was discerned when Michael asked her, almost 20 years after the original conveyance, to execute a quitclaim deed correcting the discrepancy in the property description. Bobbie Sue did so voluntarily, leaving her nursing home to go to the courthouse where she signed the quitclaim deed before a notary from the property assessor’s office.
A sale of a specific quantity of property is known as a “sale in gross,” while a sale based on a description is a “sale by the acre.” If a sale by the acre turns out to convey less land than contracted, the buyer is entitled to adjustment of the purchase price. In this case, the deed recited a 28-acre parcel, which suggested a conveyance in gross, but the metes-and-bounds description described a 13-acre parcel, suggesting a conveyance by the acre. This case demonstrates why it is essential for property sellers to precisely and carefully describe what property is conveyed.
Elliott v. Morrow, No. E-2013, 00692-COA-R3-CV (Tenn. App. 2013), [enhanced version available to lexis.com subscribers].
Real Cases in Real Estate is a periodic update on real estate law, with legal principles illustrated and explained by lawsuits from around the country. The topics are wide-ranging for appeal to a broad spectrum of readers including lawyers, homeowners, investors and the general public. Andrea Lee Negroni, a Washington DC attorney and legal writer with 25 years of experience in financial services and mortgage law, contributes the case summaries.
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