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Believe it or Not — A True and Sad Story About Deed Recitals

July 11, 2013 in Articles, Uncategorized | MARTIN WREN, P.C. | LEAVE A COMMENT

As a real estate lawyer, I regularly review documents to establish title to real property in Virginia. By statute, facts recited in a recorded deed are prima facie evidence of those facts. (Va. Code §8.01-389) In other words, factual recitals in recorded documents can be enough evidence to establish those facts unless other evidence proves otherwise.

However, “marketable title” also is defined as title to real estate that does not depend on doubtful questions of fact. Madbeth, Inc. v. Weade, 204 Va. 199, 129 SE2d 667 (1963) So, if there is reasonably serious doubt about the facts recited in a deed, title may not be marketable. The question sometimes becomes whether facts recited in recorded documents are so self-serving and convenient as to be incredible. Put another way, does reason and common sense make the recited “facts” doubtful?

But, sometimes, even incredible factual recitations are true (or at least not doubtful) if you know history. It isn’t hard to believe a young American man died unmarried and without any descendants from December 7, 1941, to August 1945 if you know anything about World War II, for example.

We recently were involved in a real estate transaction involving property in Nelson County, Virginia. One of the deeds recited that the real property had been acquired in 1917 and 1937 by an ancestor of the sellers. The deed went on to recite that the prior owner had died in 1955, survived by his wife and nine children. The deed also recited that two of the surviving children had both died on the same day and, indeed, that their two spouses and three of their children also had died that day. Incredible, right?

Not if you know local history. The day was August 19, 1969. On that date, the remnants of Hurricane Camille dropped more than 30 inches of rain overnight on parts of Nelson County, on top of mountain soils already saturated from about five inches of rain the day before. Within a few hours, over 150 people were killed in the resulting floods and mudslides.

The property we were dealing with adjoined Davis Creek. (We had issues relating to establishing the boundary along the creek because it had moved in the Camille flood, but that’s a topic for another day.) In the tiny Davis Creek community alone, more than 50 people were killed that night. Some have never been found.

Knowing the history of Hurricane Camille in Nelson County, we really didn’t have any doubt about the tragic family history recited in that deed. In fact, those recitals appeared in a deed dated November 1, 1989, and recorded November 8, 1989, so the current owners had held title under that deed for more than 20 years, making the recitals even more reliable. We believed them and moved on to other issues in the transaction.

MartinWren, P.C. attorney Lewis A. Martin, III  practices real property law and estate administration law in the firm’s Charlottesville office.  For more information regarding property foreclosures and other real estate issues, please call Lewis at 434-817-3100 or email him at martin@martinwrenlaw.com.  With offices in Charlottesville and Harrisonburg, Virginia, MartinWren, P.C. is a dynamic law firm offering legal services to individuals and small and large businesses across the Commonwealth.  MartinWren, P.C. represents clients in diverse practice areas: Business, Corporate & Tax LawEstate Planning & AdministrationPersonal InjuryIntellectual Property and Technology Law; Healthcare Law; Commercial & Residential Real EstateCivil and Commercial Litigation; Startups and Emerging Companies; Family Law & Adoption; and Nonprofit Organization Law.  To learn more about MartinWren, please visit www.martinwrenlaw.com.

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