Property Law Spring 2017

Professor Marc H. Greenberg

Golden Gate University School of Law

Title Assurance Part 1

 Title Assurance Part 1

• The Recording System – the County Recorder in each county in each

state of the USA maintains a record of all documents pertaining to or
affecting title to land within that county. This includes deeds, mortgages,
leases, options, judgments, and notices of pending litigation that affect the
right to, and/or title to , property (the lis pendens).
• Subsequent purchasers of land are entitled to rely on the completeness and
accuracy of these records, and there interest in the land is protected against
prior unrecorded interests.
• The Indexes
– Two types of index – tract index and grantor-grantee index, the latter of
which is the most commonly used
– In doing a title search, you move from the grantor index to the grantee
index and back and forth until you find the first acquisition of the land,
so far as the records extend back. Using this data, you should be able,
if the records are accurate, to create a complete chain of title to the land
 Title Assurance Part 1
• Luthi v. Evans
– Does an instrument of conveyance which uses a “Mother Hubbard”
clause to describe the property conveyed, constitute constructive notice
to a subsequent purchaser?
– The problem with these clauses is that they don’t contain sufficient
description of the property involved to identify that property for a third
party without actual knowledge of the transfer. So, while “Mother
Hubbard” clauses are valid and fully enforceable against the parties to
the instrument, they are not valid as to subsequent purchasers, unless
they have actual knowledge of the transfer.
• Description by Government Survey
 Title Assurance Part 1

• What is IDEM SONANS?

• Sounding the same or alike; having the same sound. A term appliedto names which are
substantially the same, though slightly varied in the spelling, as”Lawrence” and “Lawronce,”
and the like. 1 Cromp. & M. 800; 3 Chit Gen. Pr. 171.Two names are said to be “idem
sonantes” if the attentive ear finds difficulty indistinguishing them when pronounced, or if
common and long-continued usage has bycorruption or abbreviation made them identical
in pronunciation. State v. Griffie, 118Mo. 188, 23 S. W. 878. The rule of “idem sonans” is
that absolute accuracy in spellingnames is not required in a legal document or proceedings
either civil or criminal; that ifthe name, as spelled in the document, though different from
the correct spellingthereof, conveys to the ear, when pronounced according to the
commonly acceptedmethods, a sound practically identical with the correct name as
commonly pronounced,the name thus given is a sufficient identification of the individual
referred to, and noadvantage can be taken of the clerical error. Huhner v. Iteick- hoff, 103
Iowa, 308, 72N. W. 540, 04 Am. St. Rep. 191. Rut the doctrine of “idem sonans” has been
muchenlarged by modern decisions, to conform to the growing rule that a variance, to
bematerial, must be such as has misled the opposite party to his prejudice. State v.
White,34 S. C. 59, 12 S. E. 001, 27 Am. St. Rep. 783.
•
Definition of IDEM SONANS (Black's Law Dictionary)
 Title Assurance Part 1
• Orr v. Byers
– Can the doctrine of idem sonans rescue a failure to perfect a judgment
lien by incorrectly spelling the name of the judgment debtor? No says
this court, noting that the burden of perfecting a judgment lien is
properly placed on the plaintiff, rather than forcing title searchers to
search multiple spellings of names – among other reasons such a search
may turn up liens or other issues affecting parties not involved in the
instant case, who spell their names differently.
• Types of Recording Acts
– Race Statute – the first party to record their interest owns the property
– Notice Statute – a party who has notice of a prior unrecorded transfer
cannot prevail over that prior grantee, as that would work a fraud against
that grantee – however if the subsequent purchaser does not have notice,
they will prevail even if they do not record their subsequent deed
– Race – Notice statute – subsequent purchasers without notice of the prior
purchase, who do record their deeds, prevail.