We have mineral rights on 80 acres of land in Montague CO. However a landman recently contacted us and said the the deed has a typo and erroneously says “containing 30 acres of land”. This was an honest mistake as it is difficult to tell a "3" from an "8" on the copy of the old deed that was transferred from our mother to us.
The lawyer who filed it admits there is a mistake, but doesn't think it would be worth "probating the will" - apparently that would be what is required - and she is reluctant to do it. The land man has agreed to lease the 80 acres, but I worry about problems down the line.
Would the County clerk be likely to change it if we sent in the deed?
Any advice out there?
Thanks, Cinda Crabbe
I would first recommend you contact a good CO title attorney - someone experienced with CO laws on transfer of title. They can let you know if the error is something that invalidates the deed and requires a probate of the will, or if the error is not a big deal due to other language in the deed.
If probate is required I would recommend it now because if you have a well and production the operator may require you to do this before you can receive revenues.
I just had a client in OK who's mother passed away with only a mineral interest in CO. It took us about 4 weeks to get everything closed up. It was very quick and the attorney who assisted (Lisa Perry with Welborn, Sullivan, Meck & Tooley out of Denver) didn't charge much at all.
Bottom line: Contact a good CO title attorney to get some sound advice from the person most qualified to give it. It'll be worth the cost down the road. I mentioned Lisa Perry above, but if you need other references I'd bet the landman you're dealing with can give you the names of some in your area. Good luck!
Did you mean Montague County in Texas or are you referring to a Montague, Colorado?
Montague County in Texas - THANKS for clarifying
I would imagine that there would be an easier way to fix the typo than probating the will. All depends on your specific situation.
Simple ... Try a "Correction Deed" ... a Correction Deed corrects the mistake but leaves the other terms of the conveyance intact. The most common mistake is an error in describing the property. No new consideration is required for a correction deed. Generally, a correction deed should be signed by both grantor and grantee or POA. Why didn't your attorney mention this? Oh well, I guess that's what attorneys are good for.
Note: according to my research ... The 2010 Texas Supreme Court case Myrad Properties, Inc. v. LaSalle Bank N.A. provided guidelines for what would be considered "correctable," including errors in a metes and bounds description) or an erroneous description of a party´s capacity. According to the Court, other more substantive items (adding or deleting a parcel, for instance) could not be cured with a correction deed. This case prompted the Texas legislature to enact Property Code Sec. 5.027 et seq. which adds considerably more detail and differentiates between material and non–material corrections.
Good luck.
Pat
I agree with Pat Malone re: a CORRECTION DEED. I typed this up from the e-mail I received which did not show any replies to your question:
Request that your lawyer file a correction deed...at no charge, since it was your lawyer's mistake. When my parents deeded properties and mineral interests into their limited family partnership there was a numerical error in the deed and that is how we resolved it.
Yes, there will be problems down the line if you do not correct it. The appraisal district may be billing you for the wrong acreage on your property taxes. They are supposed to check all newly filed deeds and tax accordingly. Also, the error will be a hassle & appear in the title search for title insurance if you should ever want to sell the land. I am executor of my parents' estates and managing partner of the family partnership; so, I have been selling a lot of ranch and farm land and executing oil & gas leases, pipeline easements, etc.
I know what I'm talking about.
Liz Taylor
Midland, Texas
From what I have read on here, the situation sounds fairly simple, however. Ms. MacKinnon mentioned the possibility of a probate, which I assume means that someone in the family passed on somewhat recently. If there are other family members involved, there may need to be some specific language included or perhaps a stipulation of interest drawn up in order to clear the cloud on the title.
Hopefully a simple Correction Deed will solve this, but someone who has knowledge of oil and gas conveyances in Texas needs to be involved at some level. (A title company may be of use.)
Thanks Pat, Myranda and Liz-
I will certainly try this and mention it to my reluctant lawyer! The problem may very well be that my mother would still have to be alive to sign the correction. (She passed away 3 yrs ago.)
Ms. Pat Malone said:
Simple ... Try a "Correction Deed" ... a Correction Deed corrects the mistake but leaves the other terms of the conveyance intact. The most common mistake is an error in describing the property. No new consideration is required for a correction deed. Generally, a correction deed should be signed by both grantor and grantee or POA. Why didn't your attorney mention this? Oh well, I guess that's what attorneys are good for.
Note: according to my research ... The 2010 Texas Supreme Court case Myrad Properties, Inc. v. LaSalle Bank N.A. provided guidelines for what would be considered "correctable," including errors in a metes and bounds description) or an erroneous description of a party´s capacity. According to the Court, other more substantive items (adding or deleting a parcel, for instance) could not be cured with a correction deed. This case prompted the Texas legislature to enact Property Code Sec. 5.027 et seq. which adds considerably more detail and differentiates between material and non–material corrections.
Good luck.
Pat
The previous Grantor must be the individual to sign a correction deed. You can not just go around making correction deeds and change anything you want in a conveyance to you, who was you going to have sign that deed as grantor?
The attorney who prepared the deed should also prepare and record a scrivener's affidavit. A scrivener's affidavit is a statement executed by a person who made a minor error in a legal document such as a deed, mortgage, agreement or survey. They are most often executed by attorneys and surveyors. The affidavit clearly sets forth the error and the correction. This type of affidavit affirms that specific clerical errors made in an existing legal document have been corrected.
Pat
Cinda C MacKinnon said:
Thanks Pat, Myranda and Liz-
I will certainly try this and mention it to my reluctant lawyer! The problem may very well be that my mother would still have to be alive to sign the correction. (She passed away 3 yrs ago.)
Ms. Pat Malone said:
Simple ... Try a "Correction Deed" ... a Correction Deed corrects the mistake but leaves the other terms of the conveyance intact. The most common mistake is an error in describing the property. No new consideration is required for a correction deed. Generally, a correction deed should be signed by both grantor and grantee or POA. Why didn't your attorney mention this? Oh well, I guess that's what attorneys are good for.
Note: according to my research ... The 2010 Texas Supreme Court case Myrad Properties, Inc. v. LaSalle Bank N.A. provided guidelines for what would be considered "correctable," including errors in a metes and bounds description) or an erroneous description of a party´s capacity. According to the Court, other more substantive items (adding or deleting a parcel, for instance) could not be cured with a correction deed. This case prompted the Texas legislature to enact Property Code Sec. 5.027 et seq. which adds considerably more detail and differentiates between material and non–material corrections.
Good luck.
Pat
point taken - thank you
Mineral Joe said:
The previous Grantor must be the individual to sign a correction deed. You can not just go around making correction deeds and change anything you want in a conveyance to you, who was you going to have sign that deed as grantor?
The executor of the estate should have the power to sign for the deceased grantor.
Liz Taylor
Cinda C MacKinnon said:
point taken - thank you
Mineral Joe said:
The previous Grantor must be the individual to sign a correction deed. You can not just go around making correction deeds and change anything you want in a conveyance to you, who was you going to have sign that deed as grantor?
I didn't think you could use a scrivener's affidavit for corrections in a legal description such as "containing 30 acres of land". Also a legal Executor means legal proceedings ie probate and thought she said the attorney stated it wouldn't be worth doing one so there is no legal Executor.
If the metes and bounds given above the "containing 30 acres of land" describe an 80 acre tract and if there is any language similar to "being the same land as conveyed from whoever to someone executed ??/??/???? filed on a specific page in one volume or another in some series of records kept by the Montague County Clerk" She is going to have a much easier time getting this corrected.
If there are other people who may have had an interest in the remaining 50 acres either by the un-probated will or dissent and distribution laws, she could get an affidavit of heir ship and after that have everyone who may have been a party sign a stipulation of interest referencing the errant deed.
Without the specifics of the situation, it is hard to say what she needs to do. I’m surprised that the company attempting to lease the minerals hasn’t offered to have their legal team cure the defect for her.
First of all, a County Clerk will NEVER change/correct/amend/alter a document filed in the public record without a court order. I'm pretty sure that would be a criminal act in Texas.
Secondly, a Correction Deed can be signed ONLY by the original party or authorized representative (Power of Attorney if the original Grantor is still alive or Executor if original Grantor is not still alive). And it should have the written consent of the original Grantee(s) if their interest is being reduced, which does not appear to be the case here. The lawyer who filed it can't just correct it on his own unless she is still alive and he has her POA, even if it was his mistake.
Thirdly, it appears that your mother is not still alive, so now we travel to heirship matters. She had a Will but it was not probated, so here are some questions:
(1) When did she die?
(2) Did she have a surviving spouse at the time of her death?
(3) When you say "we" this and "we" that, you mean you and your sibling(s), right?
If your Mother died without a surviving spouse, had no Will or had a Will that was not probated, and had surviving child or children, or descendants thereof of children who predeceased her, you probably have title vested in you and your siblings for the other fifty (50) acres anyway through what is called "descent and distribution." If that is true, then you could probably get away with filing an "Affidavit of Heirship" in the County Clerk's Office instead of filing her Will for Probate, a much more expensive proposition.