Property Law Spring 2017

Professor Marc H. Greenberg

Golden Gate University School of Law

Title Assurance Part 2

 Title Assurance Part 2

• Messersmith v. Smith
– Where a prior conveyance is done properly, and conveys all of the
interests in a property, but is not recorded, will it prevail over a
subsequently recorded transfer, where the second transfer lacks the
required acknowledgment by a notary?
– What is wrong with the manner of acknowledgment done by the notary
here?
– The general rule is that the recording of an instrument affecting the title
to real estate that doesn’t meet the statutory requirement of the
recording laws affords no constructive notice.
– What could either of the parties in interest here have done to better
protect their interests?
– The text authors think this is a poorly decided case – they argue that
the purpose of proper notary acknowledgment is to guard against
forgery, which is not an issue here. Do you agree with this analysis?
 Title Assurance Part 2
• Chain of Title Problems - cases involving chain of title disputes often
involve the issue of whether constructive notice can be imputed to a party who
could have discovered the state of title by doing a chain of title search.
• Board of Education of Minneapolis v. Hughes – in this race—notice
jurisdiction, Hughes, who filled in his name as grantee to the 1906 deed and
recorded it Dec.16, 1910, has perfected title over the claim of Board of
Education. The latter acquired a warranty deed from Duryea & Wilson in 1909
and recorded it on Jan 27, 1910, but this recording was out of the chain of title,
because Duryea & Wilson acquired the property by deed from Hoerger in
April 1909, but failed to record that deed until Dec. 21, 1910, by which point it
was 5 days too late.
• Guillette v. Daly Dry Wall, Inc. - Daly argues that it did not get notice of
restrictions because they only are listed in a deed from the developer to a third
party. The court holds that every recorded deed from a common grantor (here a
subdivider) gives constructive notice of its contents to any subsequent
purchaser of any lot in the subdivision. This holding is only followed in half of
the states in the USA.
 Title Assurance Part 2

• Persons Protected by the Recording System – purchasers are

protected, donees and devisees are not. But who is a purchaser?
• Daniels v. Anderson - How do we deal with a situation in which a
subsequent purchaser has paid part of the purchase price before receiving
notice of a prior claim? This court awards the land to the prior claimant
upon reimbursement to the subsequent purchaser of the money paid to the
point when notice is received. The authors favor awarding the land to the
subsequent purchaser, but requiring remaining payment to be made to the
prior claimant.
• Lewis v. Superior Court - Similar to the Daniels case, Lewis here pays
an initial purchase payment, closes escrow and title passes. Fontana Films
records a lis pendens before this transaction happens, but their document is
not indexed, which is a part of the recording process, until after the Lewis
deal closes and is recorded. Fontana tries to argue that since their indexing
occurred before Lewis paid the entire purchase price, their lien is valid.
Why does the court reject that argument?
 Title Assurance Part 2
• Harper v. Paradise
– Why does Paradise’s adverse possession claim fail here?
– Why does it matter that the 1928 deed refers to, and recites that it is
intended to be a replacement of, the 1922 deed?
– Does the language of the grant to Maude Harper change from the 1922
deed to the 1928 deed? If so, which language governs and why?
– Does the answer to this prior question affect the outcome of this case?
How?
– What interest in the property did Maude have to sell to Ella Thornton?