decent,
Thank you for your comments. Based on your statements, I respect your experience in these types of matters.
Are you able to share a few more details on the circumstances surrounding your deed litigation(s), which I presume from your posting involved asserting the Grantor's warranty obligations against someone who is not a defined Grantor, but who nonetheless also signed the deed in some capacity?
Were these sloppily drafted deeds? In other words, were the parties poorly defined as to their respective intents and responsibilities under the instrument? Absent poor draftsmanship (which I see a lot, unfortunately), and perhaps in the absence of a title insurance contract, I would find it difficult to file suit asserting the responsibilities of a named grantor against a non-grantor, and make it stick.
I've seen (and I suspect you have, too) one-page 'internet' General Warranty Deeds where another signature line is added to the end for some poor schmuck to sign it. I can see where someone could make a plausible argument that Mr. Schmuck is a Co-Grantor and Co-Warrantor, and obligated to 'convey and warrant' title.
That is most assuredly NOT the type of deed I draft when I choose, for other reasons, to add other parties.
I imagine we have both seen other types of multi-page legal documents involving multiple parties, where the obligations of the various parties all differ under the instrument. For example, in a complex construction contract, the 'concrete guy' won't be held responsible for not performing the work of the 'framing guy', unless, of course, the 'concrete guy' is also some type of general contractor.
By the same token, when I see fit to add someone as an 'Acknowledging Co-Tenant', I clearly spell out that that person is in no ways joining the deed as either a Grantor or Warrantor. That person appears only in his or her defined capacity and assumes no responsibilities under the instrument other than acknowledging the existence and percentage of their OWN (usually undivided) interest in the same tract that is being conveyed.
Although I'm never happy to waste anyone's time and money at the courthouse, I would have no problems defending one of my deeds against a claim that a non-grantor is somehow a grantor. In fact, my non-grantors have about as much liability under the instrument as the county clerk whose stamp appears on the face of the recorded instrument, or perhaps a wife who is joining 'pro forma' when a husband transfers his separate property.
Why, then, do I sometimes do this? Laypeople, title researchers, tax appraisal districts and even attorneys can be very lazy when it comes to deciphering ownership issues. Often, they pull the most recent recorded deed that they can find, and work from it. Sadly, they miss co-tenancies, prior partial undivided transfers, partial divided transfers, inheritance issues, etc. Yes, good title plants find this stuff. Good ones. If it gets too hairy, however, they're prone to mail it in and lump it in the category of an 'acceptable risk'.
And although it doesn't generally involve title companies, don't get me started on 'mineral deeds'. Damn. I've spent hours trying to decipher what has happened with partial transfers, and reservations, and 'fractions of royalty' vs. 'fractional royalty' transfers going back many decades. These type of things have made it to the Supreme Court of Texas, as you know. Throughout I have cussed sloppy and incomplete deed draftsmanship.
It does seem worse these days, but perhaps I'm just getting older and less tolerant.
By having a non-granting Co-Tenant acknowledge their OWN undivided interest in the same tract that the other co-tenant is conveying HIS undivided interest (and clearly not obligating the A.C.T. under the warranty, granting, or any other representations made in the deed), we put the lazy on notice that 'here is who owns what'. It's in the most recent deed, for all to see. Low hanging fruit, if you will.
No, I don't write 1-page deeds. If I got paid by the page, I'd be a wealthy man.
And, I do appreciate your comments. Knowing that those type things are being litigated keeps me ever diligent in making a clear and careful choice of words.
