Difference between revisions of "Deeds"
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Latest revision as of 14:13, 4 August 2010
Deeds form the bulk and backbone of American land records. They are fairly uniform in format and content, can normally be located in routinely predictable jurisdictions (usually the county), and generally present few difficulties. As one of the most important components of civil law (as opposed to criminal law), deeds contain a fair measure of legal terms. Val Greenwood, with the advantage of a law degree, has discussed some basic legal concepts about land in his Researcher’s Guide to American Genealogy. Patricia Law Hatcher’s Locating Your Roots: Discover Your Ancestors Using Land Records has a comprehensive glossary of terms. Black’s Law Dictionary will assist with legal definitions. A detailed description of deed contents is in Raymond A. Winslow, Jr.’s “Land Records” in North Carolina Research: Genealogy and Local History. Following is an overview of deeds and other records found in deed books.
The term “deed” can be used broadly to mean a legal document of transfer, bargain, or contract, or narrowly for a warranty deed by which the seller warrants (guarantees) the title to the land being sold. Deed books contain many types of title conveyances and contracts: deeds in fee simple (a term meaning “absolute” ownership); mortgages transferring property rights as security for a debt; dower releases waiving a wife’s rights; quitclaim deeds releasing whatever title or right is held (whether valid or not); deeds of gift transferring land without a reciprocal consideration except perhaps “love and affection”; powers of attorney appointing legal agents; marriage property settlements between spouses either before or after the marriage; bills of sale transferring property that is usually not land; and various forms of contracts such as leases, partnerships, indenture papers, adoptions, and other performance bonds. These last five were not ordinarily recorded, though probate bonds were common in probate volumes. Deed books from before the Civil War, especially in colonial years, were more miscellaneous in their contents, even including animal brands, occasional wills, slave manumissions, apprentice papers, petitions, depositions, tax lists, and whatever else the clerk decided to preserve on a convenient page.
European settlers and their governments brought to the colonies the principle that before land could be privately owned the government had to pass title into private hands. Thus, for any tract of land there should be a first-title deed, which is normally called a grant or patent. Usually the authorities sought from the local Indian tribes a cession of Indian title, though this concept of owning land was foreign to the Indian view of communal occupancy. Once the Indian title was terminated to the satisfaction of the whites, the government could grant title for a tract to an individual, corporation, or, in the case of federal grants, even to a state. All subsequent transfers of a tract are by deed or analogous conveyance, or by inheritance.
In the United States, responsibility for guaranteeing legal title rests with the buyer and seller. Today, property transfers usually require a professional title searcher or lawyer, who attempts to verify a valid, unencumbered title transfer by tracing the chain of title back to the first-title grant. The government limits itself to the role of a referee—supplying the rules, recording the results, and adjudicating disputes brought to court. To simplify such title searches, title abstract and insurance companies have arisen to make professional searches and sell insurance against defective titles. Such companies have compiled indexes to title transfers in their local areas. If a genealogist can afford the high expense, such a title company could compile an ancestor’s local land records. Also, there are cases where the local deed office holdings have been destroyed recently, but abstracts survive in the private title company records.
An important fact follows from the American system of deed registrations: records are usually sought by the name of the buyer or seller rather than the tract name or number. This means that a break in the chain of recorded owners can complicate a genealogist’s understanding of why, in the absence of a deed, John Smith now owns land that Mary Smith owned ten years ago. The land could have passed from mother to son by will with proof only in the probate records, or it could have passed by intestate probate and not have been recorded at all. It could also be that the two persons are unrelated and that Mary sold the land to Paul Williams, who then sold it to John Smith, neither of the deeds being recorded, perhaps to save the cost of the clerk’s fees. Or perhaps the deed from Mary Smith to John Smith was by sheriff’s sale and indexed under the sheriff’s name as seller. Such a sheriff’s sale for delinquent taxes raises the point that tax foreclosures affecting the land would be in court records, while a bankruptcy suit might be processed in another county entirely.
A registry system called Torrens attempts to resolve some of these problems. Named for Robert Richard Torrens, the South Australian legislator who developed it in the late 1850s, Torrens ideally records in one place under the title of the tract all former owners and all rights, interests, and liens to which the property is subject. Having established the registry as mandatory and complete, the government can then issue guaranteed certificates of title to a new owner. While available in some states or urban areas, Torrens has not operated in the United States as intended and a researcher is unlikely to encounter it unless he or she is searching in an urban area.
Although deeds and other land documents of big cities resemble their small-town counterparts, the excessively high number of daily property transactions in highly populated areas made traditional indexing (by names of seller/grantor and buyer/grantee) impractical. Instead, some urban areas in public land states used the legal description as the finding aid and the tract book as the ledger. Following is a simplification of the process using a deed as an example.
- A deed (property conveyance) submitted to city or county officials for recording was copied (entered) into a deed book. A file (conveyance) number was assigned, usually chronologically according to when the deed was entered. Depending on the work load of the clerks, this could be long after the deed was brought into the office.
- A clerk entered the date of recording, the names of the parties (abbreviated, such as Taylor to Roberts), and a notation as to the type of transaction (WD, warranty deed; QC, quit claim deed; TD, deed of trust; and so forth) into the tract book. The conveyance number was also entered, providing a cross-reference to the recorded deed.
Some cities, such as Chicago, where city deeds are intermingled with those of the county, added an interim step to the process by substituting a second set of numbers for the conveyance number in the tract book entry. This second set of numbers codes the volume and page number of the recorded deed to make locating the recorded deed easier. Regardless of whether a conveyance number or a finding number is used, the research begins with the tract book.
Cook County has more than 1,000 tract books dating back to the Great Fire of 1871. Unless the researcher is fortunate enough to have a legal description (from a court document, family papers, land ownership map, or a patent), an address must be learned from a city directory, tax list, or other source. Addresses tend to be less permanent than legal descriptions, thus allowances must be made for street and numbering changes over time. Translating an 1855 address into a present-day address requires its own series of research steps. Once a current address is identified, the parcel’s legal description may be obtained from the city or county tax office. The legal description will lead to the tract book where the appropriate entries and numbers are copied, and that in turn leads to the recorded deed.
Instead of thumbing though a deed book, however, the urban researcher will probably find the deed on microform. Cities were eager to adopt new technology to aid the workflow, hence the early use of computers to maintain name indexes makes more recent searches easier. However, these indexes seldom include deeds recorded prior to the date computerization began. In the unlikely situation where the name index does go back to early years, the careful researcher will still examine the appropriate tract book, seeking the single-line entry for each legal activity that affected the property. This can include court matters (such as bankruptcy, divorce, lawsuits, or probate), liens, mortgages, judgments, tax sales, deeds of transfer, and so forth.
Other urban property search peculiarities are described in specialized research guides, such as Ann Lainhart’s A Researcher’s Guide to Boston; Loretto Dennis Szucs’s Chicago and Cook County: A Historical & Genealogical Guide; Connie S. Terheiden’s and Kenny R. Burck’s Guide to Genealogical Resources in Cincinnati and Hamilton County, Ohio; Estelle Guzik’s Genealogical Resources in the New York Metropolitan Area; and Ted Steele’s A Guide to Genealogical Research in St. Louis. Also valuable are articles, such as Leslie Corn’s “New York City Research Guide, Part One: Vital Records, Property Records, and Estate Records”; Kay Haviland Freilich’s “Genealogical Research in Pennsylvania,” with suggestions for Philadelphia; and Jane Gardner Aprill’s “New Orleans: Jewels in the Crown.” Urban area websites can prove useful. Historic Pittsburgh features many land ownership maps of Pittsburgh.
Only a handful of hardy transcribers have confronted the demands of big city property abstracting or indexing. Notably, William R. Graven, whose Cincinnati titles include Index to Selected Hamilton County, Ohio Recorder’s Books, 1801–1820 and, with Eileen Mullen, Hamilton County, Ohio, Index of Early Deed Books, 1804–1806 and 1814–1817.
The variety of records in deed books requires the user to develop certain search skills. Because few researchers have the time to read, page by page, the forty, fifty, or one hundred volumes of deeds in an average county or independent city, the user usually turns to the index. Seller indexes are also called direct or grantor indexes; buyer indexes are indirect, reverse, or grantee indexes. Some counties have indexes that only alphabetize the sellers, which forces a researcher to read all index entries from A to Z to check the buyers (for example, the buyers would be listed next to the sellers, but only the sellers are alphabetized). Before relying on a deed index, it is wise to make an informal sampling of the contents of the deed volumes to see if they contain records significantly different from deeds and if these different sorts of records are indexed along with the deeds. For example, some deed volumes have been found to contain wills. These wills were not indexed in either the deed or the probate indexes.
While cumulative deed indexes may be in alphabetical order (“alpha” order), running indexes are not, because names are continually being added. Some running indexes merely group surnames under their first letter (initial order), so all A surnames are together (unalphabetized), all B surnames together, and so forth, with special pages for Mc and O’. Occasionally, a clerk ignored the patronymic prefix and indexed MacDonald, for example, with D surnames and O’Carroll under C. Other indexing variations are explained in Christine Rose’s Courthouse Research for Family Historians.
Other problems with indexes are sins of omission—creating only a grantor index, mistakenly omitting a name, or ignoring non-deed items. This last problem is fairly common, especially in alphabetized master-deed indexes compiling all the deed volumes of the last one hundred or two hundred years. Whether the indexer will consider the barrel brand of Thomas Forehall, cooper, worth indexing is doubtful, especially because it was recorded 150 years ago and can serve no contemporary purpose. The researcher must always choose between trusting the index or checking the book (or needed years) page by page. Deeds with more than one buyer or seller may be indexed under the first’s name only, another reason to take the time to read page by page if the problem warrants it. There is also the occasional deed that provides information on a surname different from either the seller or buyer. On 7 May 1763, William and Betty Eskridge of Northumberland County, Virginia, sold land to Thomas Williams and, in passing, the deed gave a beautiful account of the Neale family, former owners of the land.
Once you’ve found an actual entry in the deed volume, either by using the index or by page-by-page scanning, you should have a fairly standard format for abstracting entries. It is wise to train yourself to first write down the source (or, if you have photocopied the entry, to immediately write the source on the photocopy). The source includes the archive, library, or website where you found the record as well as the record type, volume and page, or document number and date. Below are three examples.
- Maryland State Archives—Charles Co., Md., deeds 10:231 (microfilm)
- King Co., Wa., courthouse, county auditor’s office, deeds 27:13
- Draper Papers (State Historical Society of Wisconsin, Madison), 6BB35 (microfilm 889,101 Family History Library, Salt Lake City)
- Bureau of Land Management: General Land Office Records, online, Sparta Land Office, Patent Document #3766, issued 15 August 1837 (viewed 12 February 2006)
Printed notekeeping forms help some people remember to copy such sources. Be sure also to include your name and the date when you found the record.
Abstracting is a necessary skill to acquire, since many early deed books are too fragile to photocopy. Instructions are given in Helen Leary’s “Abstracting” in North Carolina Research: Genealogy and Local History. Below is an example of an abstracted deed.
- Barnwell Dist, SC, deeds vol. H, 1814–15, p. 318, 27 Oct 1813: Samuel Sprawls, Barnwell Dist, to John Ashley, residence not given, $20, 46 acres on branch of Tinkers Creek, adj Mary Collins and said John Ashley
- signed: Samuel Sprawls
- wit: Edmond Brown, J.C. Starpkins (also Starkin)
- recorded 21 Nov 1814
Some users forget that the deed book is a copy of an original paper and that, therefore, the deed book signatures are usually in the clerk’s handwriting—they are not holographs. Some jurisdictions, however, did require a signature on the copy they retained, so watch for them. Likewise, the seal—in wax and later in paper—beside the seller’s signature was real on the original; but, in the deed book, the clerk drew a stylized circle surrounding the word “seal.” The use of personal wax seals has long been out of fashion; but in the colonies, men were expected to have or borrow some sort of sealing device, which usually supplemented the illiterate’s mark. Even English peasants as early as the thirteenth century were required by law to seal their signatures; in fact, there was a time when the seal was the official attestation and the person’s mark was auxiliary. By the late seventeenth century, the seal was merely a traditional ornament. Consequently, heraldic devices on colonial seals probably do not prove a signer had a coat or arms. In fact, George Washington had a seal with a device different from the family coat of arms, a fairly typical situation.
Seals and signatures are, however, minor problems com-pared to late recording. Since running indexes show names in chronological order, a 1735 deed recorded in 1802 is so out of place that the researcher may not carry the search far enough to spot it. Actual examples include a deed dated 31 March 1800 and recorded 21 March 1896 in Montgomery County, Georgia, with another in the same place dated 30 December 1791 and recorded 110 years later on 30 July 1901. In the same general category are deeds rerecorded after a courthouse or town hall burned. Also be alert to indexes that show only the recording date, because behind the 1827 date could be an 1818 deed. If the ancestor died in 1823, the researcher might mistakenly conclude from the index that an 1827 deed could not be the ancestor’s.
- Val Greenwood, Researcher’s Guide to American Genealogy, 3rd ed. (2000; reprint, Baltimore: Genealogical Publishing Co., 2003).
- Patricia Law Hatcher, Locating Your Roots: Discover Your Ancestors Using Land Records (Cincinnati: Betterway Books, 2003), 188–203.
- The most recent version is Bryan A. Garner, ed., Black’s Law Dictionary, 9th ed. (West Group, 2009), although all editions are useful for historical terms.
- Raymond A. Winslow Jr., “Land Records,” in North Carolina Research: Genealogy and Local History, 2nd ed. (Raleigh: North Carolina Genealogical Society, 1996), 209–20.
- Ann Lainhart, A Researcher’s Guide to Boston (Boston: New England Historic Genealogical Society, 2003); Loretto Dennis Szucs, Chicago and Cook County: A Historical & Genealogical Guide (Salt Lake City: Ancestry, 1996); Connie S. Terheiden and Kenny R. Burck, Guide to Genealogical Resources in Cincinnati and Hamilton County, Ohio (Milford, Ohio: Little Miami Publishing, 2003); Estelle Guzic, Genealogical Resources in the New York Metropolitan Area (New York: Jewish Genealogical Society, 2003); and Ted Steele, A Guide to Genealogical Research in St. Louis (University City, Mo.: the author, n.d.).
- Leslie Corn, “New York City Research Guide, Part One: Vital Records, Property Records, and Estate Records,” New England Historic Genealogical Society, http://newenglandancestors.org/articles/research; Kay Haviland Freilich, “Genealogical Research in Pennsylvania,” National Genealogical Society Quarterly 90 (March 2002): 7–36; and Jane Gardner Aprill, “New Orleans: Jewels in the Crown,” FORUM 13 (Fall 2001).
- William R. Graven, Index to Selected Hamilton County, Ohio Recorder’s Books, 1801–1820 (Milford, Ohio: Little Miami Publishing, 2000); William R. Graven and Eileen Mullen, Hamilton County, Ohio, Index of Early Deed Books, 1804–1806 and 1814–1817 (Milford, Ohio: Little Miami Publishing, 2004).
- Christine Rose, Courthouse Research for Family Historians (San Jose, Calif.: CR Publications, 2004), 16–23, 30–35.
- Indenture from William Eskridge and wife Betty to Thomas Williams, 7 May 1763, Northumberland County, Virginia, deed book 6, pp. 220–22, FHL microfilm 032,675.
- Helen F. M. Leary, “Abstracting,” in North Carolina Research, 106–16.
- J. Harvey Bloom, “Seals,” Genealogists’ Magazine 13 (1959): 111.
- Indenture from Dempsey Wood Sr. to Hardy Wood, 31 March 1800 (recorded 21 March 1896), Montgomery County, Georgia, deed book 2W, 404–05, FHL microfilm 218,775; Indenture from Glasingham Haney Sr. to Dempsy [sic] Wood, 30 Dec. 1791 (recorded 30 July 1901), Montgomery County, Georgia, deed book 2U, 5–6, FHL microfilm 218,779.