TABLE OF CONTENTS CHAPTER 1: THE ABSTRACT...... 1 1.1 Wording of Abstracter’s Certificate ...... 1 1.2 Re-Certification of Abstract ...... 1 1.3 Form or Type of Abstract ...... 2 1.4 Matters to Be Excluded from Abstract ...... 2 1.5 Certificate of Title Issued Under K.S.A. 58-2242a and K.S.A. 59-2249 ...... 2 CHAPTER 2: AFFIDAVITS ...... 3 2.1 ...... 3 2.2 Affidavits by Interested Parties ...... 3 2.3 Unacknowledged Affidavit ...... 3 2.4 Affidavit of Death and Heirship — When Acceptable? ...... 4 2.5 Recital of Heirship In — When Acceptable? ...... 4 CHAPTER 3: THE EXAMINING ATTORNEY...... 5 3.1 Attitude of Examining Attorney and Communication with Other Attorneys Involved ...... 5 3.2 Should Validating Statutes Be Accepted? ...... 5 CHAPTER 4: CONVEYANCES FROM CORPORATIONS, PARTNERSHIPS AND LIMITED LIABILITY COMPANIES ...... 7 4.1 Existence of a Corporation and Authority to Convey ...... 7 4.2 Failure to Show Corporate Seal In Deed ...... 8 4.3 Purchasing or Accepting a Mortgage from a Limited Partnership — What Is Required? ...... 8 4.4 Purchasing or Accepting a Mortgage from a General Partnership — What Requirement? ...... 8 4.5 Partnership Deed in the Chain of Title ...... 11 4.6 Transfer from Limited Liability Company ...... 11 CHAPTER 5: — EXECUTION ACKNOWLEDGMENT AND RECORDING ...... 13 5.1 Omissions and Inconsistencies in Instruments and Acknowledgments ...... 13 5.2 Separate Acknowledgements by Husband and Wife ...... 13 5.3 Type of Acknowledgment ...... 14 5.4 Delivery — Delay in Recording ...... 14 5.5 Defective Acknowledgments...... 15 CHAPTER 6: DEEDS FROM FIDUCIARIES AND MINORS ...... 17 6.1 Deed From Receiver ...... 17 6.2 Executor’s, Administrator’s, Conservator’s, Sheriff’s Deed, or Marshal’s Deed ...... 17 6.3 Sheriff’s Deed — No Assignment of the Certificate of Purchase ...... 18 6.4 Deed or Mortgage from Religious Bodies — What Is Necessary? ...... 18 6.5 Deed from a Minor — When Acceptable? ...... 19 6.6 Deed from Trustee in Bankruptcy, Under Chapters 7, 11, 12 or 13 — What Is Required? ...... 19 6.7 Deed from a Debtor in Bankruptcy on Homestead — What Is Required? ...... 22

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6.8 Deed from Discharged Debtor — What Is Required? ...... 22 6.9 Deeds from Mortgagors Who Later Declare Bankruptcy ...... 23 6.10 Power of Attorney to Transfer ...... 23 6.11 Basic Requirements of a Power of Attorney ...... 23 6.12 Power to Convey Homestead ...... 24 6.12(a) Power of Attorney to Convey Homestead ...... 24 6.12(b) Power of Attorney to Convey Homestead ...... 26 6.13 Age of the Power of Attorney the Principal ...... 27 6.15 Deeds from Trustees ...... 28 6.16 Consent of Spouse to a Trust ...... 31 6.17 Forms of Trustee’s Deed ...... 34 6.18 Conveyances to Trusts ...... 36 CHAPTER 7: DEEDS – COUNTY CLERK TAX DEEDS OR JUDICIAL TAX FORECLOSURE ...... 39 7.1 Tax Deed 15 Years Old ...... 39 7.2 No Conveyance from Tax Deed Holder ...... 39 7.3 Judicial Tax Foreclosure Defects Prior to Foreclosure ...... 40 7.4 Judicial Tax Foreclosure — Publication Service ...... 40 7.5 Judicial Tax Foreclosure — Sale of Lots Separately ...... 40 7.6 Deeds From Unified School Districts...... 41 7.7 Deeds From Common School Districts ...... 41 7.8 Deeds From Counties — Tax Foreclosure Suits ...... 42 7.9 Deeds From Counties Not Involving Tax Foreclosure Suits ...... 42 7.10 Deeds From Municipalities ...... 42 7.11 Deeds From Mortgages From Charitable Fraternal, Benevolent and Other Similar Organizations ...... 43 7.12 Sale of Land by Federal Agencies Agricultural Credit Act of 1987 12 U.S.C. § 2219 a Section 436...... 43 CHAPTER 8: DIVORCES AND DOMESTIC JUDGMENTS ...... 45 8.1 Divorce — Granted in Another Kansas County — What Is Necessary? ...... 45 8.2 No Legal Description in the Divorce Decree — What Requirement? ...... 46 8.3(a) Past Due Child Support or Alimony Payments — What Requirements? ...... 46 8.3(b) Support Judgments — That Became Due Prior to June 30, 1981 ...... 47 8.3(c) Dormant Support Judgments — Real Estate Conveyed to Third Party on Or Before June 30, 1992...... 48 8.3(d) Support Judgments — Not Void on Or Before June 30, 1992...... 49 8.3(e) Support Judgments from Another County — Release in Court File ...... 50 8.4 Uniform Reciprocal Support Act...... 50 8.5 Divorce Decree — No Disposition of Property ...... 50 8.6 Divorce Decree — Is Quitclaim Deed Necessary? ...... 51 8.7 Family Settlement Agreements — Consent of Spouse ...... 51 8.8 Termination of Child Support ...... 52 8.9 Support Judgments on Constitutional Homesteads ...... 53

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CHAPTER 9: GUARDIANSHIP OR CONSERVATORSHIP ...... 55 9.1 Appointment of Guardian ad Litem — When? ...... 55 9.2 Petition on File Alleging Incapacity ...... 55 9.3 Sale of Homestead of Surviving Incapacitated Spouse By Conservator ...... 56 9.4 Voluntary Conservatorship ...... 56 CHAPTER 10: IDENTITY AND VARIANCES IN NAMES ...... 57 10.1 Change of Name — Grantor and Grantee ...... 57 10.2 Identity of Mrs. John Doe and Sarah Doe ...... 57 10.3 Variances Between Signature Or Body and Acknowledgment ...... 57 10.4 Variances of John Doe, John Doe, Jr., John Doe, Ii; Etc...... 58 10.5 Variances of Middle Initial ...... 58 10.6 Abbreviations, Derivations, Nicknames and Doctrine of Idem Sonans ...... 59 10.7 Variance — J.H. Smith and John Henry Smith, Etc...... 59 10.8 Are Affidavits Acceptable to Cure Name Discrepancies? ...... 59 10.9 Variances In Names — Tax Orders ...... 60 10.10 Variances In Names — Deed and Mortgage ...... 60 10.11 Variances In Names — Deeds and Divorce Proceedings...... 60 CHAPTER 11: STATE INHERITANCE AND FEDERAL ESTATE TAXES ...... 61 11.1 Kansas Inheritance Taxes ...... 61 11.2 Federal Estate Taxes ...... 61 11.3 Kansas Inheritance/Estate Taxes and Federal Taxes — Statute of Limitations ...... 62 11.4 Federal Estate Taxes — Conveyance From Transferee ...... 62 11.5 Kansas Inheritance Tax — Conveyance From Transferee ...... 63 11.6 Kansas Estate Tax — Conveyance From Transferee ...... 64 11.7 Termination of Trusts — Inheritance/Estate Taxes ...... 64 CHAPTER 12: JOINT TENANCY ...... 67 12.1 Creation ...... 67 12.2 Creation — Continued — Granting, Habendum and Warranty Clauses ...... 67 12.3 Creation — Continued — Tenancy In Common ...... 68 12.4 Proof of Title in the Survivor ...... 68 12.5 Proof of Title — Alternative Procedure ...... 69 12.6 When Is Title Marketable? ...... 69 12.7 A Joint Tenant Died Testate. What Showing Is Necessary When the Title Is Conveyed by a Surviving Widow or Widower Who Is the Surviving Joint Tenant? ...... 69 12.8 Termination of Life Estates ...... 70 12.9 Form of “Transfer-on-Death” Deed ...... 70 12.10 Transfer-on-Death Deed. When Is Title Marketable? ...... 73 12.11 Power of a Conservator or an Agent Under a Durable Power of Attorney ...... 74 12.12 Death of Joint Tenant Grantee Beneficiary in a TOD Deed ...... 75 12.13 Validity of TOD Deeds Executed Prior to 7-1-97 ...... 75 12.14 Disclaimer of Interest by a Grantee Beneficiary in a TOD Deed ...... 75

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CHAPTER 13: JUDGMENTS AND MECHANICS LIENS ...... 77 13.1 Constructive Service — Defendants Not Named in Alternative ...... 77 13.2 Default Judgment — Defective Publication Service ...... 77 13.3 Judgment Lien — Sale of Homestead — When Exempt from Lien? ...... 78 13.4 Judgments Rendered In Courts of Limited Jurisdiction — Liens on Real Estate ...... 80 13.5 Default Judgments — Service by Publication ...... 80 13.6 Residence Service — Default Judgment ...... 81 13.7 Income Tax Warrants and Sale Tax Warrants ...... 81 13.8 Homestead Exemptions — Income Tax Warrants and Sales Tax Warrants ...... 82 13.9(a) Personal Property Tax Liens and Employment Security Tax Liens ...... 82 13.9(b) Homestead Exemptions — Personal Property Tax Liens and Employment Security Tax Liens ...... 82 13.9(c) Do Employment Tax Liens Attach Against the Homestead? ...... 83 13.10 Court Costs — Liens on Real Estate? ...... 83 13.11 Fines-Classified and Unclassified — Liens on Real Estate? ...... 83 13.12 Fines Levied by United States District Courts — Liens on Real Estate? ...... 83 13.13 Mechanics’ Liens ...... 84 13.14 Judgment for Restitution to a Victim of a C r i me ...... 85 13.15(a) Dormant Judgment — Non Support Judgment ...... 86 13.15(b) Judgments from Another County ...... 86 13.15(c) Judgments from Another County — Release or Quitclaim Deed Filed ...... 87 13.16 Affidavit or Other Documents Claiming Interest in Real Estate ...... 87 CHAPTER 14: MARITAL STATUS ...... 89 14.1 Change of Name By Marriage ...... 89 14.2 Change of Spouse ...... 89 14.3 No Marital Status Shown — Single Grantor — Under 25 Years ...... 90 14.4 No Marital Status Shown — Single Grantor — Over 25 Years ...... 90 14.5 Failure of Spouse to Join ...... 90 14.6 Wife’s Family Name Different Than Husband’s — What Requirement? ...... 91 CHAPTER 15: MORTGAGES ...... 93 15.1 Conveyances to Mortgagee ...... 93 15.2 Conveyances to Mortgagee — Continued ...... 93 15.3 Defective Mortgage Release ...... 94 15.4 Unrecorded Mortgages ...... 94 15.5 Unreleased Mortgages — Curative Statute ...... 94 15.6 Foreclosure of Mortgage — What Release Is Necessary When Judgment Released? ...... 95 15.7 Foreclosure of Mortgage — Unenforced Judgment ...... 95 15.8 Release by the Heirs of Decedent Mortgagee ...... 95 15.9 Release or Mortgage by Federal Agency ...... 96 15.10 Mortgage Redemption ...... 96 15.11 Mortgages During Bankrutpcy Proceedings ...... 98 15.12 Deed or Mortgage on a Mobile Home or Manufactured Home ...... 99

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CHAPTER 16: OIL AND GAS LEASES AND OTHER ENCUMBRANCES ...... 103 16.1 Oil and Gas Lease — No Release ...... 103 16.2 Defective Release of Oil and Gas Lease or Other Instrument ...... 104 16.3 Term Royalties and Term Mineral Interest ...... 104 16.4 Mineral Lapse Statute ...... 105 16.5 Mechanics’ Liens ...... 105 CHAPTER 17: PARTITION ...... 107 17.1 When Is Adjudcation of Heirship in Partition Suit Acceptable? ...... 107 CHAPTER 18: PROBATE PROCEEDINGS ...... 109 18.1 Intestate Succession Prior to 1939 ...... 109 18.2 Administration D.B.N. — Notice of Appointment ...... 109 18.3 Testate Estate — No Final Settlement Entered ...... 110 18.4 No Discharge of Executor or Administrator ...... 110 18.5 Partial Distribution ...... 110 18.6 Title Derived From Chapter 59-618(A) ...... 111 18.7 Appointment of Guardian ad Litem — When? ...... 111 18.8 Foreign Probate Proceedings ...... 111 18.9 I n -State, Out-of-County Probate Proceedings ...... 112 18.10 Disclaimer of Interest ...... 113 CHAPTER 19: PROBATE PROCEEDINGS (cont.) DETERMINATION OF DESCENT ...... 115 19.1 Publication Notice-Sufficiency of Description ...... 115 19.2 Two or More Estates in One Decent Proceeding ...... 115 19.3 Inheritance Tax or Kansas Estate Taxes Finding Prior to Decree ...... 116 19.4 Decree of Descent — Transcript to Another County ...... 116 19.5 Decree of Heirship — Other Lands ...... 116 CHAPTER 20: RIGHTS OF WAY, ABANDONMENT AND VACATION ...... 119 20.1 What Showing Is Necessary on Abandonment of Railroad Right-of-Way or Public Highway? ...... 119 20.2 What Showing Should Be Required on Vacation of an Addition or Portion Thereof? ...... 120 CHAPTER 21: SALE, MORTGAGE, AND LEASE OF REAL ESTATE BY FIDUCIARIES ...... 121 21.1 Petition to Sell — Sufficient Description ...... 121 21.2 Public Auction — Land in Two Different Counties ...... 121 21.3 Sale Pursuant to Court Proceedings — What Showing Is Necessary? ...... 122 21.4 Sale by Executor of Administrator For Payment of Debts — Federal Estate Tax Lien Divested ...... 122 21.5 Sale Pursuant to T e r ms of Will — What Showing Is Necessary? ...... 122 21.6 Power of Sale In Will ...... 123 21.7 Purchase by Executor, Adminstrator or Conservator in His Own Name ...... 123 21.8 Sale by Executor or Administrator-Divestment of Kansas Inheritance/Estate Tax Lien ...... 123

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CHAPTER 22: MISCELLANEOUS ...... 125 22.1 Instruments Outside the Chain of Title ...... 125 22.2 Servicemembers Civil Relief Act — What Affidavit Should Be Filed? ...... 125 22.3 In What Courts Should the Servicemembers Civil Relief Act Be Followed? ...... 126 CHAPTER 23: MARKETABLE TITLE ACT ...... 127 23.1 Remedial Effect ...... 127 23.2 Requisites of Marketable Title ...... 128 23.3 Unbroken Chain of Title of Record ...... 128 23.4 Matters Purporting to Divest ...... 130 23.5 Interests or Defects in the Twenty-Five Year Chain ...... 132 23.6 Filing of Notice ...... 133 23.7 Twenty-Five-Year Possession in Lieu of Filing Notice ...... 134 23.8 Effect of Adverse Possession ...... 135 23.9 Twenty-Five-Year Abstract ...... 136 CURATIVE STATUTES ...... 137 Introduction ...... 139 Action for Recovery of Real Estate — Statute of Limitations ...... 140 Affidavits — Claiming Interest or Lien in Real Estate ...... 140 Adverse Possession — Statute of Limitations ...... 140 Adverse Possession — Public Park ...... 140 Escheat — Conveyance from Alien ...... 141 Escheat — Waiver ...... 141 Fiduciaries’ Deed — Presumed Valid ...... 141 Fiduciaries’ Deed — Statute of Limitations ...... 141 Foreign Wills Prior to 1939 ...... 141 Incompetent’s Homestead Mortgage or Lease — Presumption ...... 142 Inheritance Taxes — Statute of Limitations ...... 142 Innocent Purchaser from Heirs; Will Not Admitted to Probate Within Six Months from Date of Death...... 142 Mineral Interests — Lapsing and ...... 142 Mortgages, Deeds of Trust Recorded Prior to January 1, 1914 ...... 142 Mortgages, Deeds of Trust Recorded Prior to January 1, 1919 ...... 143 Mortgages, Deeds of Trust Recorded Between January 1, 1919, and January 1, 1923 ...... 143 Mortgages, Deeds of Trust Recorded Between January 1, 1923, and January 1, 1927 ...... 143 Mortgages, Deeds of Trust Recorded Between January 1, 1927, and January 1, 1935 ...... 143 Mortgages, Deeds of Trust Recorded Between January 1, 1935, and January 1, 1939 ...... 144 Mortgages, Deeds of Trust Recorded Between January 1, 1939, and January 1, 1943 ...... 144 Mortgages, Deeds of Trust Recorded Between January 1, 1943, and January 1, 1947 ...... 144 Mortgages, Deeds of Trust Recorded Between January 1, 1947, and January 1, 1951 ...... 144 Mortgages, Deeds of Trust Recorded Between January 1, 1951, and January 1, 1955 ...... 145 Mortgages, Deeds of Trust Recorded Between January 1, 1955, and January 1, 1965 ...... 145 Mortgages, Deeds of Trust Recorded After January 1, 1965 ...... 145 Mortgages: Releases and Assignments ...... 145 Mortgages: Release on Margins, Prior to July 1, 1977 ...... 145

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Mortgages: Release by a Corporation ...... 146 Oil & Gas: Cancellation of Unpaid Taxes ...... 146 Oil & Gas Lease: Unrecorded ...... 146 Personal Property Tax Liens: Statute of Limitations ...... 146 Persons Under Disability: Statute of Limitations ...... 146 Plats of Record for 25 Years ...... 147 Real Property Action Excepted from Statute of Limitations ...... 147 Riley County — Deeds ...... 147 Riley County — Probate Proceedings ...... 147 Seller and Buyer: Death Before Closing ...... 147 Sheriff’s Deeds: Legality of Sale ...... 148 Sheriff’s Deeds — Statute of Limitations ...... 148 Sheriff’s, Receiver’s, and Fiduciaries’ Deeds Prior to January 1, 1944 ...... 148 Tax Deeds: Defect In Advertising Sales ...... 148 Tax Foreclosures Prior to January 1, 1948 ...... 148 Tax Foreclosures: Vacation or Modification of Proceedings ...... 149 Tax Sales: Defects in Notice ...... 149 Trust Deeds: Assignments and Releases ...... 149 Written Instruments of Record over Ten Years ...... 150 INDEX ...... 151

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