Junior /Senior rights or preamble controls the legal descriptions?

[E_Page]

The preamble, being the general description, gives the overall limits.

It sounds to me like the principle of "you can't sell what you don't own" may apply here.

But even if the lots in the preamble are owned by the same person or entity as those to the East, the description is limited to what the preamble says.

You might think of it this way: The body , or specific portion, of the description draws a picture of the property. The preamble, or general portion of the description defines the size of the paper that you will draw the picture on. You can draw a picture bigger than the paper, but once you pick the paper up and give it to someone, they only have the portion of the picture that fit within the edges of the paper.

[Jim Frame]

"But even if the lots in the preamble are owned by the same person or entity as those to the East, the description is limited to what the preamble says."

I disagree, on a couple of counts. First, the preamble merely provides a general sense of the parcel vicinity, while the more specific description that follows controls in the event of a conflict. (See Brown, 2nd ed., §4.38.) Second, conflicts within a description are interpreted most strongly against the grantor, so a description that clearly extends beyond the limits of the preamble would convey the larger parcel.

All of the above assumes that the grantor owns beyond the limits of the preamble, and that superior evidence of the intent of the parties is not available outside the description.

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[E_Page]

I'm thinking of something like "All that portion of Lot 1 of the Somewhereorother subdivision, more particularly described as follows..."

In such a case, the general description clearly imparts the intent that the land conveyed would be limited to a portion of Lot 1, not portions of other lands.

Now if the specific description expressed the intent to leave Lot 1, such as "thence East to the easterly line of Lot 1; thence continuing east...", then I agree, it would eliminate the limit expressed in the general description. But if the general description clearly expresses the intent to limit the extents of the conveyed land to a portion of a particular area... well, I'd want to see some authority on that beyond one author's opinion to make the logic of the contrary work for me.

[Jim Frame]

My point is that the preamble is not intended to limit, but merely to provide general context. In my opinion, the rebuttable presumption is that the detailed description is superior evidence of intent.

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[Ian Wilson]

Jim, Jim. Jim…

Since we’re in a page turning mood, let’s turn in out Yellow Hymnals (Wattles, Writing Legal Descriptions…) to page 3.2:

“The main parts of a description are the caption and the body, and sometimes there are qualifications such as exceptions and/or reservations. These parts are like a camera; you point the camera in the general direction and it embraces the limited are within which you are dealing, in other words the caption, and then you bring the camera into focus on the subject itself and this is the body of the description.

A caption possesses the inherent function of limiting the title within which it, and/or the detailed description following it, may operate. Thus, ‘That portion of Lot 2…described as follows:’ or ‘That portion of the southeast quarter of the southwest quarter of Section 13…described as follows:’ prevents any part of the detailed metes and bounds which may be outside of the confines of the caption from carrying any transfer of title with it. (Piper v True 36 Cal 606).”

Here ends the Wattles Song…

[D Ryan]

Steve,

What exactly does the preamble say?

And what does the description to the east say along their common line?

I ask because the rule is meant to flex if the description only makes sense when taken as a whole. A case comes to mind where the caption gave way to the body, i.e. didn't limit it, whereas, the usual rule would be the caption can be limiting.

Dave Ryan

[Jim Frame]

Alas, a description is not merely a piece of paper, and it certainly isn't a camera.

In response to Ian's citation of Wattles, I'll channel Evan: "I'd want to see some authority on that beyond one author's opinion to make the logic of the contrary work for me." :)

Fortunately, it's the rare description the intent of which cannot be sussed out without weighing the preamble against the body. However, I maintain that under such conditions the preamble yields.

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[E_Page]

I have obtained a copy of Piper v True, 36 Cal. 606, and will report back once I've had the opportunity to digest it.

[D Ryan]

Thanks for posting the map- I would research whether the grantor had any interest in the lots to the east. If not, issue resolved, it's limited by the preamble (but for the reason Evan cited, you can't convey what you don't own).

Dave

[dmi]

It is not likely you can get a useful answer here, because there are too many facts that the responders to your post are unlikely aware of, that at best you can only get any ivory tower answer. As some one wise responder answered to a previous question....to paraphrase a single change to one element of the fact set will change the professional opinion. From what you have stated I have trouble seeing how lots of the same subdiviosn could overlap each other, except if title to the lots are held under common ownership and then a description could be written with the intention of conveying portions of lots 3,12 and there is an error in the preamble. I would want to see a chain of title and I would want to see deeds for lots 3 and 12.

What if lots 3,12 have exceptions? Now where do you put the line? What location is supported or disproved by field evidence? This is the reason why surveys COST MONEY!

[pls7809]

I've always done it how Evan and Ian described. I was taught that from the beginning of my life in a survey office, which is now 12 years in length and probably 1000 legal descriptions written deep. I think preambles or captions are used to limit all the time - think of the case where there's a long strip description. Each section has the same strip description.

That portion of the North Half of Section 18, T5S, R6W, SBM, being a strip of land 15 feet wide, the centerline of said strip being described as follows:

Beginning at point on the N'ly line of said section 18 lying distant thereon North 90-00-00 East, 300.00 feet from the NW'ly corner of said Section 18;

Thence South 00-00-00 East, 5280.00 feet, more or less, to a point on the Southerly line of said Section 18, lying distant thereon North 90-00-00 East, 300.00 feet from the SW'ly corner of said Section 18.

Without the typical "sidelines termination" statement, where are the northerly and southerly limits of that description?

[7702]

Jim's explanation is consistent with my understanding:

"...conflicts within a description are interpreted most strongly against the grantor, so a description that clearly extends beyond the limits of the preamble would convey the larger parcel."

".....the above assumes that the grantor owns beyond the limits of the preamble, and that superior evidence of the intent of the parties is not available outside the description."

[Jim Frame]

"think of the case where there's a long strip description. Each section has the same strip description."

This is an excellent example, because the format is used regularly in road and utility easement acquisitions. Remember that the situation is one in which the owner of the land referenced in the preamble also owns outside the preamble limit, and there is no extrinsic evidence available to aid in locating the description -- we have to determine intent of the parties solely from the written description, a pretty unusual circumstance.

The intent is to transfer the entire strip described in the body to the grantee. The body was presumably written to encompass all the land needed for the road, easement or other use. If you limit the land transferred to that referenced in the preamble, the grantee may not end up with all the land intended. However, if you allow the body description to control, the intent is realized. And if there happens to be another deed from the same grantor purporting to transfer the parcel that lies outside the preamble limits of the first deed, well, no harm, no foul. (Oops, I forgot -- there can't be another deed, because that would be extrinsic evidence of intent.)


Second example:

"Does he get the 100 feet or the 90 feet of lots 1 and 2. There is a 10 foot overlap into lot 3 if you go 100 feet."

Once again, we must assume that Steve owns all 3 lots and that there is no extrinsic evidence suggesting that the parcel under consideration ends at Lot 2 in order to wind up weighing the preamble against the body. In this case, I believe Ryan gets the 10-foot portion of Lot 3. Why? Because Steve, as the grantor, is presumed to know what he's tranferring, and the body description is not patently defective (e.g., it closes).

Suffice it to say that in both examples the descriptions are poorly written. A single qualifying clause in each would remove any ambiguity, and we wouldn't be having to resolve a conflict with only 2 contrary pieces of evidence in hand. However, in both cases I believe the preamble appropriately yields to the body.

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[Ben Lund]

I agree with both Ian and Evan on this one. The general rule is that any description in the body does not go outside the description in the caption. What happens when the body descriptions is outside of the caption description? Cuomo has commented on this in his Advanced Land Descriptions (pg 2):

“The caption serves to locate the property being described in a general sense. The particulars contained in the body of the description will control over the caption unless there is a definite ambiguity created. If a deed reads, “A portion of Tract 1234, as shown on a map filed in Book 45….” and the body of the description describes a parcel which includes a portion of an adjoining tract, Tract 5678, an ambiguity is created. Whether or not a portion of Tract 5678 has been conveyed depends on the following:

The grantor had no interest in Tract 5678 – no conveyance can be made of any portion of Tract 5678.

The grantor owned both Tract 1234 and Tract 5678 at the time the deed was prepared – that portion of Tract 5678 described in the body might have been conveyed.”

[Ian Wilson]

It’s also a common technique used in creating multiple descriptions for a long “take”, such as for a road.

The road is described once. It becomes the body of the description.

The caption changes for each owner, as in “All that portion of Lot 1 of Parcel Map X…” and “All that portion of Parcel 2 of Parcel Map X…” and so on.

CADD drafters use the same concept. The linework they’re trimming may well cover the entire drawing. The fence within which they are trimming limits the trim to just the fence and not beyond. The line is the “body” and the trim fence is the “caption”.

Although there may be exceptions, I think the ambiguity lies only in the mind of some surveyors. We have a tendency to “over think” many situations.

[7702]

The section of Mr. Coumo's work that Ben cited sounds a lot like what Jim was trying to say.

I don't see how there can be any hard and fast rule for determining what the intent of a description is when conflicts occur between the caption and the body. Typo's and other errors don't discriminate, they can and will show up anywhere.

When ambiguities are found to exist, the deed needs to be examined as a whole and weighed against extrinsic evidence in order to determine the intent with any degree of certainty.

[dmi]

Danner, I understood your question. I was just trying to be helpful by suggesting things that had not been mention by other responders. Generally, I would try to find evidence to support one rule over another rule.

Sometimes there are errors in the deeds for a chain of title for a particular parcel. In your case, there could be a typo in the body of thr description, looking at previous deeds in the chain could verify that. Suppose the deed just prior to your current deed had the correct dimension, in terms of fitting record per the map. What conclusion would you draw? Suppose very deed back to the time shortly after the creation of the subdivision, matches the distance in the body of your current description. And when you do your field work you find that the parcels are occupied based upon the distance in your current deed? What rule are you going to apply? There needs to be a reason for the rule.

So in short my answer is, you cannot just apply this rule or that rule,absent evidence for the rule simply because there is an ambiguity in the deed.

[Ben Lund]

I’m baffled. How do I only convey that portion of land in Lot 2? Why is the language “that portion of Lot 2â€￾ considered a general statement?

Are we saying that what I need to do is add a qualifying clause at the end of the body of the description similar to: “Excepting there from any and all lands not included in said Lot 2â€￾? (This seems redundant to me)

I’ve attached the section in Brown’s Boundary Control and Legal Principles that talks about when “a particular intent will by presumption control a general one that is inconsistent with it.â€￾

Brown (or Robillard or whoever) says “…the particular facts are controlling and that portion of section 11, IF OWNED BY THE GRANTOR, would be conveyed even though not mentioned in the general description.â€￾

[Jim Frame]

"Why is the language 'that portion of Lot 2' considered a general statement?"

Because it merely serves to establish the general location of the land subsequently described. Think state, county, city, etc.


"How do I only convey that portion of land in Lot 2?"

By qualifying the courses in the description to limit its extent (e.g., "thence North 89°11'12" East 111.11 feet to the southeast corner of Lot 2; thence along the east line of Lot 2 55.55 feet to the southeast corner thereof," etc.).

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[Ben Lund]

Jim,
If I understand you correctly, in the case of a description that traverses many different fee ownerships, you would right a different legal for each property. You would probably “begin” your legal offsite (in the same location I’m presuming) but then “start” the easement at the “true point of beginning” in the lot line of the particular property you’re traversing.

[Jim Frame]

I misunderstood the context of Ben's last post. In the case of a long strip description that crosses many parcels, there are a number of ways to eliminate the ambiguity, and Ben's earlier suggestion of adding a separate sentence to the body of the description clearly stating the intent is probably the approach I would take. Is such a sentence redundant? Yes, and that's exactly the point -- it effectively eliminates any other interpretation.

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[Scott]

I had the same situation a couple of years ago and after talking to a land attorney we decided that the main body holds over the preamble only if the grantor has title to all portions, which was the case in my situation. The attorney came up with an appellate court decision to support our view. I will try to dig the ruling out of my records. I still put a note on my Record of Survey saying that “title problems could occur because said deed does not mention ‘Lot 10’ in the captionâ€￾.