NORTH CAROLINA LAW REVIEW Volume 44 | Number 1 Article 10 12-1-1965 The Quest for Clear Land Titles -- Making Land Title Searches Shorter and Surer in North Carolina via Marketable Title Legislation James A. Webster Jr. Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation James A. Webster Jr., The Quest for Clear Land Titles -- Making Land Title Searches Shorter and Surer in North Carolina via Marketable Title Legislation, 44 N.C. L. Rev. 89 (1965). Available at: http://scholarship.law.unc.edu/nclr/vol44/iss1/10 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. THE QUEST FOR CLEAR LAND TITLES- MAKING LAND TITLE SEARCHES SHORTER AND SURER IN NORTH CAROLINA VIA MARKETABLE TITLE LEGISLATION* By JAmES A. WEBSTER, JR.t There are voices crying in the wilderness of real property law that there is a "crisis in conveyancing."1 In a jet age that utilizes "hot lines" in the hope of averting a nuclear "hot war," perhaps the word "crisis" as related to land transactions is a bit overdramatic. But one need only to broach the subject of land-title searches to discover that non-ivory tower lawyers of current vintage are disillusioned with the adequacy of currently existing procedures for searching and certifying land titles. In the quietude of their offices, while they are resting in easy chairs away from the heavy, often dusty, giant grantor-grantee indexes and the other bundlesome volumes necessary to be lifted and opened in doing a thorough and painstaking title search, law- yers will admit that problems so often written about by law pro- fessors concerning real property are not merely hobgoblins of their own imaginations but are real.2 Title lawyers will admit that they * This article is the second of a projected series of articles on the im- provement of land law. While the principal area of concern and emphasis is on North Carolina law, it is the purpose of the articles to provide analyses and approaches to solutions of problems of general application in other juris- dictions. For the first article of the series, see Webster, The Quest for Clear Land Titles-Whither Possibilities of Reverter and Rights of Entry?, 42 N.C.L. REv. 807 (1964). f Professor of Law, Wake Forest College. 'E.g., Payne, The Crisis in Conveyancing, 19 Mo. L. REv. 214 (1954). A number of other excellent articles have been written in recent years which criticize present day conveyancing procedures and suggest conveyancing reform. See Aigler, Title Problems in Land Transfers, 24 Micm. S.B.J. 202 (1945); Aigler, Clearance of Land Titles-A Statutory Step, 44 Micx. L. REV. 45 (1945); Aigler, Marketable Title Acts, 13 U. MIAMI L. REV. 47 (1958); Basye, Trends and Progress-The Marketable Title Acts, 47 IowA L. REV. 261 (1962); Cribbet, Conveyancing Reform, 35 N.Y.U.L. REV. 1291 (1960); Spies, A Critique of Conveyancing, 38 VA. L. REV. 245 (1952). (One well-known title lawyer, when asked if he ever has any worry concerning titles he has certified, admitted that it is not uncommon at all for him to awake in the middle of the night and wonder whether he should go to his office to check on a possible defect in a title certified for which he NORTH CAROLINA LAW REVIEW [Vol. 44 go as far as is economically feasible in applying their labor, knowl- edge of the law and their skill in ascertaining the status of a land title. Many lawyers involved in title practice, however, will likewise acknowledge that there are numerous potential problems that they routinely ignore. Because of deficiencies in the existing system of land recordation, coupled with certain idiosyncrasies of land law, lawyers are forced "to make a choice between subjecting clients to prohibitively large expenses or assuming the risk that the sleeping ' 3 dog will continue to lie." The emphasis in this article is on record title deficiencies that are not discoverable on a reasonably short title search. Every title lawyer accepts the shortcomings of the records of land transactions as positive indicia of sound titles. They know and advise their purchaser and lender clients, hopefully, on the basis that the records are no better than the subject of recordation. Though perfectly recorded, if a deed has not been delivered, it conveys no title.' If a deed has been delivered in blank to be filled in with the grantee's name after the delivery, it is void and passes no title even though recorded.5 Deeds from incompetents are not given validity by regis- tration and remain void.' Deeds arising out of frauds in the factum, perhaps as the result of forgeries, impersonations, or where there is a want of identity or a disparity between an instrument executed and one intended to be executed, cannot be said to be the deeds of the makers at all.7 The marital status of a grantor may have been incorrectly set out in a recorded deed because of a negligent omission or by reason of a divorce and remarriage of a grantor in another state or because of an initial secret marriage of the grantor.8 has made no allowance. He stated, however, that he had never gone to his office in such instances. 'From a letter to the writer concerning the problems of title lawyers, 1964. 'McMahan v. Hensley, 178 N.C. 587, 101 S.E. 210 (1919). Bank v. Wimbish, 192 N.C. 552, 135 S.E. 452 (1926). 'Thompson v. Thomas, 163 N.C. 500, 79 S.E. 896 (1913). ""No title passes under such an instrument-it is void-and no rights may be acquired thereunder even by innocent parties." Nixon v. Nixon, 260 N.C. 251, 257, 132 S.E.2d 590, 594 (1963). See Medlin v. Buford, 115 N.C. 260, 20 S.E. 463 (1894). See also, Parker v. Thomas, 192 N.C. 798, 136 S.E. 118 (1926) (for indicia of fraud in the factum as distinguished from fraud in the treaty). ' Prior to the 1965 legislative session of the North Carolina General Assembly, North Carolina law provided that a married woman could not validly convey her real estate without the written assent of her husband. Buford v. Mochy, 224 N.C. 235, 29 S.E.2d 729 (1944). Pursuant to an 19651 THE QUEST FOR CLEAR LAND TITLES That a grantor has been impersonated at some point in the execu- tion of a deed in the chain of title, that there has been a forgery, that the grantor was a minor, that there were undisclosed heirs of a decedent in intestacy, or that a will in the chain of title was in- effective because a testator married or had children born after the will's execution will not appear except by laborious investigation collateral to the land-title records. The existence of many ease- ments, title in another as the result of adverse possession without color of title, and potential mechanics' and materialmen's liens may not be discovered even with the most exhaustive search. In short, land-title records are no more than "some" evidence of the status of the title to a particular tract of real property.' amendment of N.C. CoNsT., art. X, § 6, approved by the people of the state on January 14, 1964, the North Carolina General Assembly in 1965 passed legislation designed to allow spouses, both wives and husbands, to contract and deal with their respective real and personal property as if unmarried. See N.C. GEN. STAT. §§ 52-1 to -2 (Supp. 1965). A word of caution is in order concerning these statutes, however. While a husband's signature will no longer be necessary to give his wife's deed legal vitality as formerly required, the procuring of spouses' signatures on married grantors' deeds will continue to be necessary. N.C. GEr. STAT. § 29-30 (Supp. 1965) pro- vides surviving spouses with a substitute for dower and curtesy. A sur- viving spouse, notwithstanding the fact that his deceased spouse has made a conveyance of his real property while living, may elect to take a life estate in one-third in value of the deceased spouse's real property of which de- ceased spouse was seized during coverture. There will be no waiver of the surviving spouse's entitlement to the elective life estate provided by N.C. GEN. STAT. § 29-30 (Supp. 1965) unless the surviving spouse has previously joined the other spouse in his conveyance. In addition, and of special interest to title searchers, N.C. GEN. STAT. §§ 52-1 to -2 (Supp. 1965) have no retroactive effect. Deeds and conveyances which were executed by married women prior to the effective date of the new act without the written assent of their husbands have not been vali- dated by the enactment of the new statutes. Questions relating to the marital status of female grantors and to whether their proper husbands made written assents to transfers of their lands before enactment of these statutes are potentially capable of raising title and marketability problems for many years to come. "In simple truth the notion that we have anywhere in this country (apart from the Torrens statutes) any such thing as "record title" is sheer delusion. There are too many facts affecting the validity of a title which not only do not appear in the records but which often cannot be ascertained by any reasonable search outside the records .