The Scope of Title Examination in West Virginia- Can Reasonable M

In the Beginning

In the early development of property law in feudal England, the absence of recording laws led to disputes over land ownership To address these conflicts, legal principles emerged, emphasizing the doctrine of "first in time, first in right" to determine rightful claims.

As the quote in the footnote taken from the American Law of

Property reflects, and the discussion in the following section of the

The American Law of Property, section 17.2, emphasizes that the "first in time, first in right" principle is a simplified interpretation of the common law rule However, this concept is adequate for our discussion on title examinations, particularly when distinguishing between "recordable interests."

"nonrecordable interests" is of fundamental importance If a "recordable interest" is involved, the recording statutes are applicable, and in the event a recordable interest is not recorded, a subsequent bona fide

5 4 AMERICAN LAW OF PROPERTY § 17.1, at 523-25 (1952) (Stating:

[I]n the period prior to the enactment of recording statutes, rules originated for the determination of priorities For lack of recording acts in other than York and

In Middlesex Counties, the laws governing land titles remain applicable throughout England for properties not registered under the Torrens System These laws are also relevant in the United States, unless altered by specific statutes Conflicting claims that are not addressed by statute are categorized into three classifications, all adhering to the general legal principle that prioritizes the first claim made as the rightful claim.

Equity operates under the principle that equity follows the law, which applies to three key scenarios: conflicts between legal interests, conflicts between equitable interests, and conflicts between a legal interest and an equitable interest.

The rules dictate that item a is to be followed literally, with exceptions noted in section 17.2 regarding item b For item c, the legal right takes precedence over an equitable right unless the holder of the later legal interest acquired it with notice of the earlier equitable claim or did not provide value for it In cases where the later claimant is a bona fide purchaser for value without notice, the equitable doctrine favors the later claim This has led to the common understanding that, in conflicts between legal and equitable claims, the legal claim prevails, although exceptions demonstrate that this is not always the case.

In a notice jurisdiction, a bona fide purchaser for value, such as B, can acquire property free of any unrecorded interests For instance, if O leases the oil and gas rights of Blackacre to A, who fails to record the lease, and subsequently sells Blackacre to B, B will take ownership without being affected by A's unrecorded lease.

"free" of the oil and gas lease However, if the earlier interest is a

Purchasers must be aware that reliance on records in the "record room" offers no protection against nonrecordable interests Even without actual or constructive knowledge, buyers may still take subject to these interests, highlighting the importance of thorough due diligence in property transactions.

"Short term" leases are common examples of nonrecordable interests in real property 6

When dealing with property rights, it's crucial to recognize that nonrecordable rights are governed by the common law principle of "first in time, first in right," as recording acts do not apply In contrast, if recordable rights are at stake, the determination of priority among competing interests will follow the guidelines established by the recording acts and the courts' interpretations of those laws.

The statute of frauds and recording acts do not govern rights established by law, including adverse possession, perspective easements, ways of necessity, and implied easements.

Classifying the Early Recording Acts

The evolution of modern recording acts in the United States can be traced back to an ordinance enacted in April 1634 in the Massachusetts Bay Colony, marking a significant milestone in the history of property law.

According to W VA CODE § 40-1-8 (Supp 1995), a lease pertaining to a recordable interest is defined as one that lasts for more than five years or any lease that allows for the taking, destruction, or consumption of the estate's corpus, excluding domestic use.

7 See generally Core v Faupel, 24 W Va 238 (1884); Sornon v Murphy Fabrica- tion & Erection Co., 232 S.E.2d 524 (W Va 1977).

8 See Town of Paden City v Felton, 66 S.E.2d 280 (W Va 1951).

9 See Berkeley Dev Corp v Hutzler, 229 S.E.2d 732 (W Va 1976).

On October 7, 1640, the Massachusetts Bay Colony enacted a law that established the principle of recording conveyances, which is similar to current Massachusetts law This law stipulated that a conveyance would only be effective against others if it was recorded, a practice that influenced other colonies By the time of the American Revolution, the Massachusetts model—where a conveyance was valid against the grantor and heirs upon delivery, but effective against others only after recording—became the dominant form of recording act in the colonies Early interpretations of these acts prioritized the date of recording, leading to a competitive "race to the registry" among successive grantees from the same grantor, marking the beginning of what is now known as the "first type" of recording acts.

The second type of recording acts, which evolved from the initial "race" statutes through judicial decisions, emphasizes that courts often prioritize prior unrecorded interests over subsequent purchasers who have knowledge of these interests, despite their earlier recording To address this issue, legislatures amended the "race" statutes to create "notice types," which exclude from protection any subsequent purchaser with notice of a prior conveyance In these notice jurisdictions, recording first is not required to assert rights against earlier unrecorded interests, thus incentivizing bona fide purchasers to record promptly to safeguard their titles from competing claims by other subsequent purchasers.

11 4 AMERICAN LAW OF PROPEPTY § 17.4, at 528 (1952).

16 Id In a "notice" jurisdiction, if 0 conveys Blackacre to A and then later conveys

In a "pure notice" jurisdiction, a bona fide purchaser (B) who acquires property from Blackacre without any notice of a prior conveyance to A will prevail over A, even if A records their interest before B This means that as long as B purchases the property for value and is unaware of A's claim, B's title will be upheld.

The third essential category of legal acts safeguards subsequent purchasers who are without notice and prioritize recording their interests These acts are commonly referred to as "race notice."

The West Virginia Statutes

Modern conveyancing is fundamentally based on the statutes of frauds and recording acts The statute of frauds specifies the transactions that must be documented in writing to be legally binding and outlines the necessary level of formality for such documents Meanwhile, the recording acts determine which legal instruments need to be recorded to maintain validity against various parties or entities.

Virginia, the provisions of the statutes of frauds pertaining to real estate are set forth in Article 1, Chapter 36 of the West Virginia

For a land sale or lease exceeding one year to be enforceable, it must be documented in writing and signed by the involved party or their agent However, the written contract does not need to explicitly state the consideration, which can be established through other evidence.

The doctrine of part performance, a judicially developed exception to the statute of frauds, plays a significant role in title examination jurisprudence This doctrine presupposes a clear and definite agreement between the parties involved, despite the absence of a written record of that agreement.

In a "race notice" jurisdiction, when O transfers Blackacre to A and subsequently transfers it to B, B will have priority over A if B is unaware of O's prior conveyance to A, provides consideration, and records the deed before A does.

The original statute of frauds was enacted in England in 1677 and has influenced legal frameworks in various jurisdictions, including West Virginia In West Virginia, the real estate provisions of this statute are incorporated into the Code sections that address estates in property, while the regulations concerning wills are outlined in Article 1, Chapter 41 of the West Virginia Code Additional provisions from the original statute can be found in Section 55-1-1 of the West Virginia Code.

21 "To justify the relief of specific performance of a parol agreement relating to real

For a contract to be considered established, there must be some degree of partial performance Traditionally, this partial performance includes the vendee taking possession of the property and either paying the full or a partial purchase price, or taking possession while making valuable improvements to the property.

West Virginia Code Section 36-1-3 mandates that specific transactions must be documented in writing and signed by the responsible party to be legally enforceable, while Section 36-1-1 stipulates that certain interests require the formalities associated with a deed or will for their creation.

No estate of inheritance, freehold, or any land interest lasting over five years can be established or transferred unless through a deed or will This includes any interest that allows for the potential destruction or consumption of the estate's corpus, except for domestic use.

The term "deed" in legal contexts, particularly regarding real property, is often overlooked in judicial discussions, as highlighted in Arbaugh v Raines In this case, the court examined an oil and gas lease agreement and questioned whether any interest in the leasehold estate was transferred The court emphasized that for an agreement to be valid, three essential criteria must be met: the agreement must be clear and definite, the actions taken in partial performance must relate to the agreement, and the agreement must be executed to a degree that denying full execution would result in fraud against the party involved.

Certain acts of part performance in verbal agreements for real estate sales can exempt a case from the strict application of the statute of frauds, as recognized in equity For instance, making partial or full payments for the property while taking possession, or making valuable improvements on the land, can justify enforcing a verbal agreement for the sale Courts uphold this principle to prevent vendors from evading their commitments, which would amount to fraudulent behavior against the buyer.

WEST VIRGINIA LAW REVIEW say that the agreement referred to above is neither a deed nor [a] will.

The absence of transfer or conveyance language in the document means it cannot convey any interest in the lessee's estate In the Arbaugh case, Raines leased the oil and gas rights beneath a specific tract of land and subsequently sold them.

1/32 shares in the well for $250 each 26 In explaining the agreement, the court said:

The agreement exemplifies a standard practice in oil and gas development, where a lessee retains ownership of a lease while raising funds for drilling by selling shares in a proposed well The pooled money is used for drilling costs, and if successful, profits are shared among the shareholders However, shareholders have no claim to profits from additional wells drilled by the lessee on the same leasehold estate, as demonstrated in the case of C.D Raines, who sold only shares in the well and not an interest in the leasehold, leaving the plaintiffs without rights to profits from any other wells.

In addition to the discussion in the Arbaugh case that a deed re- quires words of transfer, further guidance as to the definition of a

According to Article 3, Chapter 36 of the Code, specifically Section 36-3-1, a seal or any symbol intended to function as a seal is not required for a deed to be valid Additionally, Section 36-3-3 clarifies that adding a seal to an instrument that conveys land does not enhance its legal effect beyond what it would have without a seal Most importantly, Section 36-3-4 eliminates the distinctions between different types of common law conveyances, stating that any instrument demonstrating a clear intent to transfer title or interest in real property, when properly executed and delivered, will be recognized and given effect.

SCOPE OF TITLE EXAMIATION according to its manifest intent." 3 Furthermore, Section 36-3-6 pro- vides that consideration does not need to be set forth in order to have a valid deed 3 "

Therefore, assuming a writing which satisfies the requirements of

Sections 36-1-1 and 36-1-3 outline the necessary written instruments that must be recorded to ensure protection under the recording acts It is important to note that the transfer of an interest becomes binding between the parties upon the delivery of the deed Recording serves to safeguard the title of the acquired interest against subsequent parties who may claim rights under the recording acts.

When addressing conflicts over competing interests in real property, the primary consideration is the applicability of recording acts If these acts are not applicable, the resolution of rights is determined by the common law doctrine of "first in time, first in right."

The West Virginia Recording Acts: The Aegis

In West Virginia, the recording acts relevant to real property are outlined in West Virginia Code Sections 40-1-8 and 40-1-9 Specifically, Section 40-1-8 pertains to contracts related to the sale or lease of specific interests in real estate.

Any written contract related to real estate or personal property that is made in consideration of marriage, as well as any written agreement for the sale or transfer of real estate or an interest in it, is legally binding.

30 W VA CODE § 36-3-4 (1985) The full text of this statute provides:

All distinctions in the legal effects of various property deeds, including deeds of grant, deeds of bargain and sale, deeds of lease and release, and deeds of covenant to stand seized, have been abolished Any document that clearly indicates an intention to transfer title or interest in real property, whether present or future, will be recognized and enforced if it is properly executed and delivered Furthermore, no document intended to convey land or any interest in it will be deemed ineffective solely due to non-compliance with specific statutory language.

In West Virginia, leases longer than five years, or any duration that allows for the estate's corpus to be taken or consumed (excluding domestic use), are considered valid against creditors and purchasers once recorded Instead of recording the lease itself, a memorandum executed by all parties can be recorded, which must include the names and addresses of the lessor and lessee, the lease's execution date, a description of the leased premises, the lease term with start and end dates, and details on any extension or renewal rights, including their maximum duration and exercise dates.

Such memorandum shall constitute notice of only the information con- tained therein."

In the case of Pack v Hansbarger, the court highlighted that the West Virginia statute is derived from a Virginia statute effective July 1, 1850, which was adopted verbatim into the West Virginia Code This Virginia statute itself was an amendment to a prior commonwealth statute The court clarified that this amendment allowed contracts for the sale of real estate to be recognized as recordable rights.

The recent amendment to the statute now mandates that contracts for the conveyance or sale of real estate exceeding five years must be in writing This change may have been influenced by a ruling from the Court of Appeals.

In the case of Withers v Carter et al., 4 Gratt 407, the amendment established that unrecorded written contracts are treated similarly to unrecorded deeds concerning creditors and purchasers for valuable consideration without notice Consequently, all unrecorded or unregistered contracts hold the same legal standing in these situations.

The scope of title examination indicates that any written conveyance or sale of real estate for a term exceeding five years, executed since July 1, 1850, is considered void against creditors and purchasers for valuable consideration who are without notice This is equivalent to the status of an unrecorded or unregistered deed for such real estate, both under current statutes and prior to any amendments.

The court in Pack elucidated the historical context behind the provisions related to contracts within West Virginia Code Section 40-1-8, highlighting the reasons for their development in this section rather than Section 40-1-9.

Section 40-1-9 In addition, the Pack decision also provided one of the earliest policy discussions of the recording acts in our state.

As noted above, a written contract described in West Virginia

According to Code Section 40-1-8, once a contract is officially recorded, it holds the same validity against creditors and purchasers as a deed would for the conveyed estate or interest This means that under Section 40-1-8, the specified contracts are treated as deeds for the purpose of recording, making them "recordable."

The significance of being a "recordable interest" is that until it is recorded, those who are described in West Virginia Code Section 40-1-

9 can take "free" of the unrecorded interest In effect the provisions of

Section 40-1-9 alter the common law rule, to the extent that it applies, of "first in time, first in right." Section 40-1-9 provides:

All contracts, deeds, gifts, trust deeds, or mortgages related to real estate are considered void against creditors and subsequent purchasers for valuable consideration without notice until they are properly recorded in the relevant county.

38 W VA CODE § 40-1-9 (1982) See also W VA CODE § 39-1-2 (1982) (Setting forth the requirements for an instrument to be recordable as follows:

The county court clerk is responsible for recording any deed, contract, power of attorney, or similar document in their office This recording is permitted for any individual whose name appears on the document.

The Supreme Court of Appeals of West Virginia has not explicitly labeled its statute as "notice," yet its rulings indicate that West Virginia operates as a "notice" jurisdiction concerning "purchasers." This classification has been acknowledged by the American legal community.

West Virginia is classified as a "notice type" jurisdiction under the Law of Property, which is included in the list of twenty-five states with notice statutes This classification is supported by Patton on Titles and recognized by legal experts, including Dean Clyde.

Colson, in his 1954 law review article entitled Limits of Title Search

According to the West Virginia Recording Act, the priority of property rights between two successive grantees from the same grantor is determined not by the order of recording but by the presence of actual or constructive notice of any prior conveyance at the time the second grantee purchases the property.

Virginia cases cited by Dean Colson in support of this statement are

Alexander v Andrews and Cross v Riddle 45 have been acknowledged by him, or proved by two witnesses as to him, before such clerk of the county court.

The West Virginia Recording Acts: "Notice" is

While West Virginia is a "notice" jurisdiction as to "purchasers," under our statutes, notice of an unrecorded deed is not relevant as to

"creditors." The distinction, in this respect, between purchasers and creditors is based upon the wording of Section 40-1-9 The statute reads:

Any contract, deed, gift deed, trust deed, or mortgage that transfers real estate will be considered void in relation to creditors and subsequent purchasers who provide valuable consideration.

In West Virginia, legal documents such as contracts, deeds, trust deeds, or mortgages are not effective until they are officially recorded in the relevant county This means that any actions taken based on these documents prior to their recording may occur without notice.

The phrase "for valuable consideration without notice" is specifically applicable to "subsequent purchasers" and does not extend to "creditors," as established in Syllabus Point 2 of Delaplain & Son v.

The validity of a debt does not depend on whether the creditor was aware of it at the time it was contracted The statute renders the debt void for all creditors uniformly, unlike the provisions regarding purchasers, which consider notice.

The difference under the statute between a "purchaser" and a "creditor" is summarized in Acadian Coal & Lumber Co v Brooks Run Lumber

A lien creditor's rights are determined by the official record rather than by actual notice In contrast, a purchaser is obligated to act on actual notice; if they are aware of relevant facts that warrant further investigation, it does not matter if the related instrument is recorded.

According to West Virginia Code Section 38-3-6, a judgment becomes a lien on real estate from the specified time; however, it is important to note that the judgment itself does not create a lien.

76 17 W Va 242, 244, Syl Pt 2 (1880) The court in Abney v Ohio Lumber &

According to Mining Co., 32 S.E 256 (W Va 1898), an unrecorded deed is considered void against creditors, regardless of their awareness of the deed However, it remains valid against purchasers who have notice of the deed or those who have not acquired the property for valuable consideration.

79 W VA CODE § 38-3-6 (1985) The full text of this statute provides:

In this State, any monetary judgment, except for confessions made during vacation, creates a lien on all real estate owned or to be owned by the defendant from the date of the judgment If the judgment is issued in court, the lien applies from the start of the term in which the judgment was rendered, provided the case was in a state that allowed for judgment on the first day of that term However, if the nature of the case prevented a judgment at the term's commencement, the lien will only apply from the date the judgment is issued.

SCOPE OF TITLE EXAMINATION as against a "purchaser of real estate for valuable consideration without notice, unless it" 80 is docketed in accordance with Section 38-3-5.

The case of Cooper v Cooper illustrates key legal principles regarding attorney fees and lien enforcement In this case, attorneys representing the defendant in an alienation of affection lawsuit accepted a note secured by a deed of trust on the defendant's property to guarantee payment for their services The deed of trust was recorded on October 14, 1953, and a judgment was issued in favor of the plaintiff on November 17, 1953 According to the relevant statute, a judgment can relate back to the start of the term, even if the trial occurs later, provided the case was ready for hearing at that time Additionally, a judgment by confession during a vacation period creates a lien on real estate, which remains valid and enforceable as long as it has not been released or discharged.

80 W VA CODE § 38-3-7 (1985) The full text of this statute provides:

A judgment will not create a lien against a purchaser of real estate for valuable consideration without notice unless it is properly docketed in the relevant county before the deed is recorded Additionally, such a judgment will not be a lien after ten years from its date against a purchaser, unless an execution has been issued and filed within that period, or the purchaser has actual notice of the execution Moreover, even if executions have been issued and filed, a judgment will not remain a lien after ten years from the last filed execution unless the purchaser is aware of any executions issued within the ten years prior to their purchase.

On September 2, 1953, the West Virginia law review highlighted a significant ruling where a plaintiff became a judgment creditor against the defendant The court determined that the plaintiff's judgment took precedence over the attorneys' deed of trust due to the attorneys' actual notice of the plaintiff's claim, which could lead to a judgment and lien As established in the case of Richardson v White, the statute governing judgment liens is designed to protect purchasers for valuable consideration without notice and does not apply in disputes between a judgment creditor and their debtor.

The West Virginia Recording Acts: While "Mort- gagees" are "Purchasers" Under the Statutes,

TITLE TRANSFER

Real property can be transferred or acquired in three primary ways: the most common method is through a deed, while another significant method occurs upon the owner's death, where the property is passed on via testate or intestate succession Additionally, title to property can also be obtained through adverse possession, although this method is less common than the first two.

Deeds

In General

Since a deed is the most common link in a chain of title, both the form and contents of the deed are important to the title examiner The

American Law of Property states that:

For a deed to function effectively as a legal conveyance without reformation, it must include essential elements such as a grantor, grantee, words of grant, a description of the land, and the signature of the grantor Additionally, some states may require a seal, attestation, or acknowledgment, depending on the type of deed Even informal deeds can be valid as long as they contain these critical components that courts recognize as necessary for legal effectiveness.

Under the principle of eminent domain, the sovereign and specific corporations have the authority to acquire private property This right is established in the West Virginia Constitution, Article II, Section 9, and is further detailed in Articles I and II of Chapter 54 of the West Virginia Code.

109 See infra Part IX.A for a discussion of the issues facing the title examiner when title to land has passed by reason of death of the owner.

Adverse possession is a legal concept governed by the statute of limitations for land entry and recovery, as outlined in W VA CODE §§ 55-2-1, -la, -3, -4 (1994) It requires the fulfillment of specific elements established by the courts For a detailed understanding of these elements, refer to the cases Core v Faupel, 24 W Va 238 (1884) and Somon v Murphy Fabrication & Erection Co., 232 S.E.2d 524 (W Va 1977).

111 3 AMERICAN LAW OF PROPERTY § 12.38, at 279.

West Virginia has established statutory guidelines for the content and format of deeds, eliminating the traditional distinctions in legal effects among different types of deeds that originated from English common law This legislative change emphasizes the importance of intent over the specific form of the deed, reflecting a modern approach to property transactions.

All distinctions in legal effects between various types of property deeds, including deeds of grant, bargain and sale, lease and release, and covenants to stand seized, have been eliminated Any document that clearly indicates an intention to transfer title or interest in real property, whether present or future, will be recognized if it is properly executed and delivered Furthermore, no property conveyance will be deemed ineffective solely due to non-compliance with specific language requirements outlined in sections five through nine of this article.

In lieu of the "wordy" common law forms of deeds, the statutes pro- vide a "bare bones" deed form."'

Another illustration of the emphasis on "intent" over "form" is found in a companion section which abolishes the necessity of the

In West Virginia, the requirement to affix a seal to legal documents such as deeds, deeds of trust, and mortgages has been eliminated by statute Consequently, adding a seal to an instrument does not enhance its legal validity or effect.

A deed may be made in the following form, or to the same effect: "This deed made the day of , in the year , between

In consideration of (here state the consideration), the parties named herein agree that (insert names of parties) grants to (insert name of the recipient) all rights to the described property, including any covenants and provisions applicable to this agreement.

In addition to the form deed in this Section, Section 36-3-8 sets forth a deed of lease and

Section 36-3-9 provides a form deed for use by a sheriff or special commissioner W VA.

CODE § 36-3-8, -9 (1982) A form trustee's deed is found in Section 38-1-6 W VA CODE § 38-1-6 (1985).

The term "family seal," historically used in common law, refers to the imprint on documents that has evolved over time Today, it is often simplified to just the word "seal," appearing after the signature line on various documents.

The significance of the contents of deeds cannot be overlooked, even as the focus shifts from form to intent Typically, deeds include a date, and unless proven otherwise, they are assumed to have been executed on that date.

Granting Words

A key requirement for a valid deed is the clear intention to transfer an estate or interest in land, which is typically indicated by operative phrases like "do hereby grant and convey." This principle was highlighted in the case of Freudenberger Oil Co v Simmons.

Operative words that clearly indicate the intent to transfer property are crucial for the conveyance of title This intent must be explicitly expressed through the language of the deed, rather than inferred from the actions of the parties involved.

116 The notarial seal as part of an acknowledgement is required by statute W VA.

CODE § 39-1-10 (1982) The seal discussed in West Virginia Section 39-1A-2 is not the seal referred to in Sections 36-3-1, -2, and -3.

In the case of Parson v Baltimore Building & Loan Association, 29 S.E 999 (W Va 1898), the court examined whether a document labeled as an "agreement" could be classified as a deed This agreement, which was signed, sealed, and acknowledged, addressed a party wall and stipulated that the costs associated with the wall would be considered a covenant running with the land, rather than a personal obligation of the individual not constructing the wall.

The court recognized the instrument as a deed, describing it as "a mutual exchange of an interest or easement in real estate." It emphasized that a valid deed does not require a specific form or wording, as long as the intention is clear and it is signed, sealed, and delivered The court concluded that the intentions of the parties and the interests conveyed were clearly stated in the document, thus validating it as a proper deed for recording purposes.

In the case of Dulin v Ohio River R.R., 80 S.E 145 (W Va 1913), it is established in Syllabus Point 4 that, prima facie, the execution date of a deed is considered to be the date it was signed, even if the acknowledgment occurs at a later time.

120 Id at 995, Syl Pt 9 See also Erwin v Bethlehem Steel Corp., 62 S.E.2d 337

(W Va 1950) In Uhl v Ohio River R.R., 41 S.E 340 (W Va 1902), the court ex-

In a recent ruling, the Supreme Court of Appeals of West Virginia upheld the "plain meaning" of a statute indicating that a deed will transfer the grantor's entire interest unless there is a clear expression of a different intent This principle emphasizes that operative words reflecting the intent to transfer are integral to the deed's interpretation.

In Freudenberger Oil Co v Simmons, we noted that under W Va

Code 36-1-11 [1923] a deed conveying land, in absence of an exception to the contrary, passes the entire interest of the grantor Syl pt 1,

A deed that transfers land, unless specified otherwise, transfers the entire estate, rights, title, and interests of the grantor in both legal and equitable terms.

The statute does not convert a "mere easement" into a "fee simple" estate In the case of Uhl v Ohio River Railroad, the railroad contended that the conveyance of a fifty-foot right of way granted it an absolute fee simple estate in the soil, including the rights to all minerals and oil extraction.

Deeds consist of structured components and specific legal terminology that were historically adhered to strictly, often at the expense of the true intent behind them In contemporary practice, however, the focus has shifted towards honoring the original intention, allowing for a more flexible interpretation that prioritizes intent over rigid formality For example, traditional conveyancing typically mandates the use of terms like "grant" or "bargain and sell" to signify the nature of the transfer.

"convey" is now held to be equivalent to the word "grant," even at common law.

41 S.E at 343-44 (citations omitted) See also Chapman v Charter, 34 S.E 768 (W Va.

When real property is transferred to an individual without specific limiting language, it is interpreted as granting a fee simple estate, encompassing the full legal or equitable interest that the grantor or testator was entitled to dispose of, unless the conveyance or will explicitly indicates otherwise.

122 Jolynne Corp v Michels, 446 S.E.2d 494, 502 (W Va 1994) (citations omitted).

The court dismissed the argument regarding the applicability of statute law to the case, emphasizing that the statute form of deed is relevant only if it conveys land itself If the deed conveys only an easement or a limited estate, the statute does not apply The term "grant" must refer to a tangible object for it to be effective, and its operation is confined to what is explicitly intended in the deed Therefore, if the deed only grants a right of way, the term "grant" is limited to that specific right.

Related to Section 36-1-11, is Section 36-3-10, which provides that

Every deed conveying land is generally interpreted to include all associated buildings, privileges, and appurtenances unless explicitly stated otherwise Historically, courts have clarified that this statute pertains to the transfer of existing appurtenances, not to the establishment of new easements.

Parties and Signatures

A deed requires the presence of both parties: the grantor and the grantee While it is essential for these roles to be included, there is flexibility in how the parties are identified within the deed.

In the case of Roberts v Huntington Development & Gas Co., the court addressed the issue of whether a deed could be deemed invalid for not explicitly naming the grantees The court concluded that the absence of specific identification of the grantees in the deed did not necessarily invalidate the conveyance of title.

128 Standiford v Goudy, 6 W Va 364, 368 (1873) (emphasis added).

129 Johnson v Riley, 23 S.E 698, 701 (W Va 1895) (Brannon, J., dissenting).

The court affirmed that the identity of a grantee in a deed does not need to be explicitly stated by name, as long as the description provided is adequate to differentiate the intended individual from others This principle is supported by Devlin on Deeds, which emphasizes that a deed remains valid despite the absence of a name, provided the description is clear Additionally, this concept is reinforced in Syllabus Point 3 of Blake v Hendrick.

In a deed, it is not necessary for the grantor or grantee to be explicitly named in the granting clause, as long as they can be clearly identified when considering the entire document As long as there is no ambiguity regarding the identity of either party, they can be adequately distinguished from others.

The law clearly establishes that a party must be explicitly named as a grantor in a deed for their signature to convey any interest in the property In the case of Adams v Medsker, the deed aimed to transfer land from the decedent's heirs to one heir, yet only Thomas Lyons and his wife were named as grantors, and they did not sign the deed Conversely, Morgan Lyons and his wife, who were not named as grantors, did sign the document, leading the court to examine whether their signatures could convey any interest in the land.

The deed in question does not convey any interest to Morgan Lyons, as he is neither mentioned nor included as a party in the document According to fundamental legal principles, every deed requires both a grantor and a grantee Therefore, an individual cannot be considered a party to the deed if they are not explicitly referenced within it Simply signing and acknowledging the deed, in the presence of named grantors, does not suffice to establish that individual as a party to the agreement.

131 Id at 352 (quoting I DEvLIN ON DEEDs § 184).

SCOPE OF TITLE EXAM]NATION appeared by extrinsic evidence that he intended thereby to make it his deed.' 37

As to Thomas, the court found his failure to sign the deed prevented it from passing title to his interest.'

In the case of Parrish v Pancake, the court ruled that a deed with multiple grantors is valid for those who execute and acknowledge it, provided their intention is to transfer title However, for grantors who do not execute the deed, their interests remain untransferred.

Consideration

While a deed does not require a recitation of consideration for a valid conveyance, acknowledging the receipt of consideration carries legal weight, as demonstrated in the case of Farrar v Young In this case, the deceased's sons sought to invalidate a deed their father executed to his granddaughter, which explicitly stated that the transfer was made "for and in consideration of the sum of One Dollar ($1.00), and other good and valuable consideration, cash in hand paid by the parties of the second."

A valid deed of real property will not be invalidated due to the absence of payment or a stated consideration Additionally, the lack of consideration does not create a resulting trust for the grantor unless there was an actual intention to establish one Importantly, these provisions do not compromise the rights of any party involved in the deed or any other individual to challenge the conveyance on grounds of fraud or any other valid reason that could render it invalid.

WEST VIRGINL4 LAW REVIEW[ part unto the party of the first part, the receipt of which is hereby acknowledged * * *.,,,144 As to the recital in the deed, the court said:

This Court has consistently ruled that a deed's recital of payment, regardless of the amount, serves as prima facie evidence of both the payment and the adequacy of consideration In the case of Lovett v Eastern Oil Company, it was determined that the recital of one dollar is considered valuable consideration for land conveyance.

The recital in the subject deed confirms that payment and receipt of consideration occurred, and there is no evidence presented to suggest that this consideration was not paid or that any fraud was involved Therefore, we conclude that good and valuable consideration has been lawfully provided to support the conveyance in question.

The Farrar decision's Syllabus Point 3 emphasizes that mere inadequacy of consideration does not alone warrant a court of equity to nullify a deed However, in McElwain v Wells, the court clarified that if the consideration is "grossly inadequate" and capable of shocking the court's conscience, it may disregard the deed's recital.

Description

A deed which does not ascertain a legally adequate description is fatally defective As the court said in Meadow River Lumber Co v.

A land conveyance is considered void if the description of the parcel is so vague that it cannot be clarified through external evidence.

Whether a deed contains a sufficient description of the property to be conveyed is by its nature very fact specific The "definition" of

144 Id at 577 (quoting from subject deed).

SCOPE OF TITLE EXAMINA TION what constitutes a "sufficient description" in a deed was stated before the turn of the century as follows:

In a deed of conveyance or a sales contract, the primary purpose of land description is not solely to identify the property but to provide a means for its identification This description often requires additional evidence for clarity, and once the identification is established, it fulfills its purpose effectively.

In Harper v Pauley, the court emphasized that a contract or deed must include essential "key" or "foundation" words to enable the introduction of extrinsic evidence for identifying specific property This highlights the importance of clear and precise language in legal documents to ensure proper property identification.

The writing in question merely describes a specific tract of land by its acreage and location along a stream, lacking any "key" or "foundation" words essential for clarity It does not reference any other legal documents, identify the land by name, indicate ownership or title sources, mention occupancy status, or relate to adjacent properties According to established court decisions, such essential terms cannot be inferred or added through external evidence.

For an easement to be valid in a deed, it must be articulated in clear and precise language; otherwise, it may be deemed void due to uncertainty, as highlighted in the case of Highway Properties v Dollar.

Savings Bank, 56 the court held an easement across adjacent property void because of uncertainty The purported easement was "reserved" in

151 Thorn v Phares, 14 S.E 399, 399, Syl Pt 3 (W Va 1891) See also Consol- idation Coal Co v Mineral Coal Co., 126 S.E.2d 194 (W Va 1962); Holley v Curry, 51

153 The Harper decision provides a helpful summary of a number of "description cases" which, as stated above, tend to be fact specific.

155 Meadow River Lumber Co v Smith, I S.E.2d 169 (W Va 1939).

The West Virginia Law Review discusses a deed to Fayette Square, highlighting that it includes provisions for common parking and rights-of-way for access between parcels The court in Highway Properties emphasized that any exceptions or reservations in a deed must be articulated in clear and definite terms In the case of the Fayette Square deed, the court noted that the easement language failed to specify the location or width of the easements, lacking any details to geographically identify them on the property.

The rules regarding the sufficiency of an easement description in a deed apply solely to the initial conveyance Subsequent deeds may reference exceptions and reservations or omit such references without affecting the validity of the original easement, provided it was adequately described This principle exists because purchasers of real property are expected to be aware of the details contained in the property’s chain of title.

Exceptions and Reservations

As the court explained in Erwin v Bethlehem Steel Corp., 6 '

"[t]hough technically there is a distinction between an exception and a reservation, they are often regarded as synonymous.' 6 The technical distinction between these two terms was explained in Malamphy v.

Potomac Edison Co.,1 63 as follows:

157 Id at 97 (quoting from deed to Fayette Square).

158 Id at 98 (quoting from Hall v Hartley, 119 S.E.2d 759, Syl Pt 2 (W Va.

A reservation in legal terms refers to a right or interest that arises from a granted property, which is not currently in existence or is newly created, and does not constitute a part of the granted property itself Conversely, an exception is a provision by which the grantor excludes certain existing elements from the conveyance, maintaining control over those specific aspects while transferring the remainder of the property.

The Malamphy court stated that even if the wording in a deed of conveyance is labeled as a 'reservation,' it can be interpreted as an exception when necessary to fulfill the clear intentions of the parties involved.

Once a valid exception is established, it remains binding on all subsequent grantees in the chain of title, regardless of whether later deeds reference it Additionally, for a deed to be valid, it must include a clear description of the property being conveyed, and any exception must be described with legal certainty; otherwise, the item intended to be excepted will automatically transfer to the grantee.

Acknowledgement

While a proper acknowledgement is essential to make a deed a

"recordable" instrument, a proper acknowledgement is not necessary for a deed to transfer title As the court explained in McElwain v.

164 Id at 758 (citations omitted) In Freeport Coal Co v Valley Point Mining Co.,

In the case of 90 S.E.2d 296, 299 (W Va 1955), the court highlighted Lord Coke's important distinction between an exception and a reservation An exception refers to a portion of the granted property that is currently in existence, while a reservation pertains to a newly created right or interest that is not part of the existing land or tenement being leased.

A reserved right or interest in a conveyance remains effective against all parties deriving title through the grantee, even if the reservation is not explicitly stated in later deeds This principle is supported by the case Malomphy, 83 S.E.2d at 759, and is further illustrated in Highway Properties v.

167 Sally-Mike Properties v Yokum, 332 S.E.2d 597, 602 (W Va 1985) (quoting

Harding v Jennings, 70 S.E 1, Syl Pt 2 (W Va 1910)).

An acknowledgment under section 39-1-2 is necessary for recording a deed, but it does not affect the deed's validity between the parties involved or those aware of it A defect in acknowledgment does not diminish the deed's effectiveness in conveying the intended property Moreover, an unrecorded deed remains valid against the grantor and their heirs.

The importance of acknowledgment lies not in the transfer of title itself, but in safeguarding the title that is conveyed through the deed This legal principle is effectively encapsulated by the court's ruling.

South Penn Oil Co v Blue Creek Development Co 7 ' Syllabus Point

A deed that includes a certificate of acknowledgment but is unsigned by the notary who supposedly took the acknowledgment, and is not otherwise verified, cannot be considered a recordable document.

The admission of a deed and an unsigned certificate of acknowledgment by the county court clerk does not make the deed part of the official record Consequently, this does not provide constructive notice to a subsequent purchaser of the land involved.

Since a valid acknowledgement is necessary for an instrument to be recordable, what constitutes a valid acknowledgement is important.

The article discusses the statutory regulations governing the admission of documents to record by the county commission clerk, as outlined in Section 39-1-2 It also details the form acknowledgments specified in Sections 39-1-4, 39-1-4a, 39-1-5, 39-1-8, and 39-1-9.

172 Id at 1029, Syl Pt 3; see also Ihrig v Ihrig, 88 S.E 1010 (W Va 1916).

According to W Va Code § 39-1-2 (1982), the clerk of the county commission is required to record any deed, contract, power of attorney, or other writing, provided it has been acknowledged by the person whose name is signed or proven by two witnesses before the clerk This regulation ensures that important legal documents are properly recorded and recognized in the county's official records.

Sections 1-3 outline who is authorized to take an acknowledgement According to Section 39-1-10, if an acknowledgement is performed by a notary outside of West Virginia, it must be certified with the notary's official seal In 1971, West Virginia implemented the Uniform Recognition of Acknowledgement Act, and in 1994, the statute regarding defective acknowledgements in Section 37-11-2 was revised to reduce the time limit from ten years to five years Additionally, in 1984, West Virginia adopted the Uniform Notary Act.

Act.' 77 While the Uniform Acts and form certificates have significant- ly reduced the likelihood of defective acknowledgements, mistakes in acknowledgement still occur Obviously, an acknowledgement would be

An acknowledgment is considered "defective" if executed by an individual not appointed under the relevant statutory provisions or if their term has expired Additionally, an acknowledgment is deemed "defective" if performed by a notary who is not authorized in the jurisdiction.

West Virginia failed to affix the official seal' or all of those named in the instrument as parties and who sign the instrument are not named in the acknowledgment.

Finally, in West Virginia, it has long been recognized that a party to an instrument should not serve as a notary of that instrument In

In the 1883 case of Tavenner v Barrett, the court ruled that a trustee's acknowledgment of grantors' signatures in a deed of trust was defective, leading to improper recordation The court emphasized that mere recording in the books does not serve as constructive notice to subsequent purchasers This precedent was upheld in later cases until it was ultimately overruled in 1992 by the court in Galloway.

177 Chapter 29C of the West Virginia Code.

179 W VA CODE § 29C-2-102 (1993) ("Notaries may perform notarial acts in any part of this state for a term of ten years, unless sooner removed.").

183 See Dixon v Hesper Coal & Coke Co., 130 S.E 663 (W Va 1925); Central

In the case of "West Virginia Law Review v Cinello," the attorney acting as the trustee notarized both the deed conveying the property and the deed of trust that secured the remaining purchase price When the property purchaser filed for bankruptcy, the bankruptcy court needed to determine if the seller held a perfected security interest in the property.

Court of Appeals said the bankruptcy court ruled, based upon the

Tavenner case, that the seller (secured party under the deed of trust)

"had no security interest in the property."' 86 Actually the United

The States Bankruptcy Judge concluded that the defendants possess an unperfected security interest in the property in question This decision is currently under appeal following the bankruptcy court's ruling.

United States District Court for the Northern District of West Virginia, the question was certified to the Supreme Court of Appeals of West

It is submitted that upon careful reading, the Galloway decision misconstrued existing West Virginia law For example, the court in

Galloway emphasized that the bankruptcy court primarily based its decision on the case of Tavenner v Barrett, where a deed of trust was invalidated due to the conflict of interest involving the trustee who also notarized the document However, it's important to note that in Tavenner, the court's ruling specifically nullified the acknowledgment rather than the entire instrument itself.

Tavenner court adopted as their own, expressed this point as follows:

The lack of proper acknowledgment does not invalidate a deed executed by a person of sound mind; it only affects the record's legal effect Without acknowledgment or proof, the deed's record is not legally recognized, and merely being recorded does not serve as constructive notice for future purchasers However, the deed remains valid between the original parties involved and should take precedence over subsequent deeds for those who had actual notice of its existence.

187 In re Rochinich v Cinello, Bk No 90-51048 (Bankr N.D.W Va Oct 31,

As to other cases which followed Tavenner, the Galloway court said:

For example, in Central Trust Co v Cook, which involved another ac- knowledgement of a deed of trust by the trustee-notary, we merely cited

Tavenner and concluded in Syllabus Point 2: "An acknowledgement of a trust deed by the grantors before the trustee as a notary public is invalid."

Similarly, in Dixon v Harper Coal & Coke Co., a mortgage com- pany had its deed of trust declared invalid because the trustee acknowl- edged the instrument 9 '

Actual Notice

Under the recording act, various forms of "notice" can undermine a purchaser's protection, with "actual notice" being the most significant type Actual knowledge of a property interest or claim serves as valid notice under this act, potentially impacting the rights of the buyer.

198 This is succinctly illustrated by the following comment by the court:

West Virginia Code Section 29C-3-102 prohibits a notary with a disqualifying interest from legally performing any notarial act related to a transaction However, the statute does not clarify the validity of documents acknowledged by such a notary, leaving this issue unaddressed in the Act.

199 "To the extent that Tavenner v Barrett, supra, and related cases state or imply the contrary, they are overruled." 423 S.E.2d at 880.

200 BLACK'S LAW DICTIONARY 1061 (6th ed 1990) (Defining "actual notice" as fol- lows:

In the West Virginia Law Review, the concept of "notice" is crucial, as demonstrated in Gullett v Burton, where the court determined that discovering a deed during a title examination constitutes actual notice for the purchaser, negating their status as a bona fide purchaser without notice under the recording act Furthermore, the knowledge possessed by an agent acting on behalf of the purchaser is legally attributed to the principal, a principle highlighted in Syllabus Point 1 of George v Stansbury.

If a subsequent purchaser acquires a deed for land through an agent who is aware that the property has already been sold to someone else, this knowledge constitutes notice to the principal Consequently, even if the subsequent purchaser's deed is recorded first, it will not have priority over the original deed A court of equity can cancel and set aside the subsequent deed in an appropriate legal proceeding.

Inquiry Notice

Inquiry notice, which refers to information that an individual is subjectively aware of, is closely related to the concept of actual notice A pivotal case that explores inquiry notice in depth is Pocahontas Tanning Co v St Lawrence, highlighting its importance within the legal framework of the state.

Boom & Manufacturing Co 2 " 4 The law of that decision is succinctly stated in Syllabus Points 1 through 4 as follows:

Actual notice refers to information that has been directly communicated to a party It encompasses both express and implied forms of notice Express notice involves knowledge that exceeds mere inference, requiring no further investigation, while implied notice suggests that a party is aware of information that obligates them to seek further knowledge In essence, actual notice is confirmed communication received directly by an individual or knowledge that they are presumed to possess, compelling them to investigate further.

SCOPE OF TITLE EXA4MNATION

Any information that effectively draws a buyer's attention to the existing rights and interests of third parties will serve as notice, prompting the buyer to investigate and understand those rights further.

A party cannot claim the rights of a bona fide purchaser without notice unless they thoroughly examine all aspects of the title they are acquiring It is essential to consider all sources of information about the title, as common prudence dictates that neglecting any part could jeopardize their entitlement to protection.

A party is considered to have received adequate notice if there are reasonable grounds for inquiry and the means to obtain knowledge are accessible If a purchaser possesses enough information to prompt further investigation or is made aware of circumstances that should lead to such inquiry, they are deemed sufficiently notified, which disqualifies them from being classified as an innocent purchaser.

If an individual possesses sufficient knowledge or information that would prompt a reasonable person to investigate the existence of conflicting rights or titles before making a purchase, they are obligated to pursue that inquiry and determine the extent of any prior claims Failure to conduct such an investigation, or inadequately pursuing it, will result in the law holding the individual accountable for all information that a proper inquiry would have revealed.

205 Id In addition to the language in the syllabi, the following excerpts from the decision are instructive:

A purchaser must be aware of all recitals in the deed that conveys the title and is considered informed of every detail mentioned in the various conveyances that form the chain of title These statements and recitals create a responsibility for the purchaser to investigate and thoroughly examine all matters highlighted for their attention.

In the case referenced, the court emphasized that a purchaser is regarded as having valuable consideration with notice of another's equity if they possess information that would prompt them to investigate further This principle, drawn from the earlier case of Cain v Cox, establishes that individuals are presumed to be aware of facts that diligent inquiry would reveal Consequently, the court adopted a rule reinforcing the importance of common prudence and ordinary diligence in real estate transactions.

Purchasers must exercise caution in their buying decisions, as the principle of caveat emptor, meaning "let the buyer beware," emphasizes their responsibility To be considered a bona fide purchaser, they must conduct due diligence and make necessary inquiries This includes being aware of both actual and constructive notice, which holds the same weight as actual notice Buyers are responsible for reviewing the title documents associated with their purchase and are charged with knowledge of any facts evident on those documents Ignoring available information and claiming to be a bona fide purchaser without notice is not permissible.

The principles of inquiry notice articulated in Pocahontas Tanning

Co have been followed in a number of subsequent cases including the more recent ones of Gullett v Burton; °6 Eagle Gas Co v Doran &

Associates, Inc ;27 and Highway Properties v Dollar Savings

Duty to Take a View

Related to "inquiry notice" is the duty to take a view This well- established principle of law is expressed in Bailey v Banther °9 as follows:

When a real estate buyer enters into a contract with a claimant who is not in possession of the property, they are obligated to investigate the situation, especially since another party is currently occupying the property If the buyer proceeds with the conveyance from the claimant without conducting thorough inquiries, they may be held accountable for any information that diligent investigation would have revealed, thereby protecting the rights of the person in possession.

The defense of an innocent purchaser is not applicable when dealing with someone who is in actual possession and holds a prior equitable title from the same vendor The law presumes that such subsequent purchasers are aware of all rights that could be revealed through an inquiry involving the purchaser in possession or those who hold rights under them.

The law imputes to a purchaser of real estate, or an interest in real estate, all information which would be conveyed to him by an actual view of the premises."'

The case of Weekly v Hardesty serves as a valuable example for understanding recording acts and the associated duty to take a view In this case, Hardesty owned a total of 154 acres and sold two parcels, totaling 18 acres, highlighting the complexities involved in property transactions and the importance of proper documentation.

Id at 894 (emphasis added) (quoting Burwell's Adm'rs v Fauber, 61 Va (21 Gratt.) 446

210 Id at 181 (citation omitted) See also GuIlett v Burton, 345 S.E.2d 323 (W Va.

1986); Mills v McLanahan, 73 S.E 927 (W Va 1912); Smith v Owens, 59 S.E 762 (W.

The scope of title examination involves the ownership of 53 acres, which were conveyed to McCown McCown took possession of the property under her deed dated April 1893; however, she failed to record this deed Subsequently, Weekly acquired these parcels from McCown.

McCown." 4 However, rather than McCown giving Weekly a deed for these parcels, Hardesty gave Weekly a deed for the property (dated

March 8, 1894) and allegedly McCown's unrecorded deed was de- stroyed 2 " 5 Weekly immediately took possession of the parcels, but did not record his deed until April 5, 1894.216 On March 9, 1894,

Hardesty executed a deed of trust covering the entire 154 acres (in- cluding the parcels conveyed to Weekly the day before) to Brown 2 " 7

Brown's deed of trust was recorded on March 12, 1894, before

Weekly's deed was put of record 2 " 8 On March 10, 1894, a judgment in favor of Armstrong was docketed, thereby, creating a lien on

Hardesty's property 9 Weekly challenged the deed of trust and judg- ment lien as clouds on his title 220

Restated in chronological order, the facts are as follows: March 8,

1894, Hardesty conveys two parcels adverse of the 154-acre parcel to

Weekly and Weekly enters into possession; March 9, 1894, Hardesty grants to Brown a deed of trust on all 154 acres; March 10, 1894,

On March 12, 1894, Armstrong's judgment was officially recorded, followed by Brown's deed of trust on April 5, 1894, and Weekley's deed shortly thereafter The appellate court affirmed the judgment, establishing it as a lien on the entire 154-acre property and ordered the sale of the remaining land still owned by Mrs.

The court reversed the lower court's decision regarding the validity of the deed of trust concerning the entire 154-acre tract, stating that it was necessary for Hardesty to fulfill the Armstrong judgment The court emphasized that Weekly's possession was significant, regardless of whether it was Weekly or another party involved.

McCown, as Weekly's "grantor," was in actual possession):

Actual possession serves as a valid notice to the world regarding the rights of the party in possession, equating its significance to that of a recorded deed This principle is illustrated in the case of Ellison v Torpin, where relevant authorities are comprehensively discussed.

If the Hardestys had made a deed to McCown, though it was not record- ed, McCown's possession was notice to Brown of rights under it Though

Weekly's deed remained unrecorded, yet his possession under McCown served as notice to Brown, safeguarding Weekly's rights stemming from McCown However, this possession did not notify the judgment creditor, Armstrong, whose rights take precedence over any purchaser's, regardless of whether the creditor is aware of the purchase, unless the purchase is officially recorded.

The same concept was followed in Page v Westfield Pharmacy,

Inc.,223 where the court held that possession by a lessee was sufficient

"notice" to charge a purchaser of the property subject to a lease with knowledge of the existence of an option to renew the lease The court reasoned that:

A buyer acquiring real estate must be aware that if the property is already occupied, this serves as a warning to investigate further If the buyer proceeds to purchase from someone who does not possess the property, they may be held accountable for any information that a thorough inquiry would have revealed regarding the rights of the occupant.

The law requires buyers to conduct thorough investigations and assumes they are aware of all facts that such inquiries would reveal, including the rights of current occupants This legal principle removes the defense of being an innocent purchaser.

In the case of Martin v Thomas, an important exception to the general rule that possession places a purchaser on inquiry is highlighted Thomas owned seven-tenths of a 244-acre property, while the remaining three-tenths was owned by the heirs of Corbin These heirs transferred their interests to Brown, who subsequently conveyed his interest to Martin Martin then initiated a lawsuit to partition the acreage, which Thomas contested.

The scope of title examination involves assessing ownership interests in real estate, as highlighted in the case where Thomas claimed a three-tenths interest from the Corbin heirs based on an unrecorded contract Although Thomas did not argue that Martin had actual notice of this contract, he asserted that his prior possession of the property before the deed's execution to Brown should have alerted both Brown and Martin to his rights under the agreement The court addressed these claims in its ruling.

The issue arises regarding whether the possession of one coparcener, while others are not in actual possession, serves as constructive notice to the public when that coparcener enters into an executory contract to buy the shares of the other coparceners This situation raises concerns about whether this possession effectively alerts potential buyers to refrain from purchasing shares from those who are not in possession.

The court established that for possession to serve as notice to a purchaser, it must contradict the apparent or recorded title of the grantor; otherwise, the purchaser is not obligated to investigate further, as possession is assumed to align with the grantor's title The court determined that the individual held a one-half interest in the property, both personally and as an heir of Corbin, in addition to having purchased an interest from another heir.

Corbin's possession of the property aligns with the recorded title and the interests of the other non-possessory heirs As a tenant in common, Corbin shares ownership rights to the real estate with the other coparceners.

Thomas's possession was insufficient to place a subsequent bona fide purchaser of the remaining Corbin heirs' interests upon inquiry notice.

The court's holding is reflected in Syllabus Points 3 and 4 Syllabus

Point 3 states: "To make possession of land notice to subsequent pur- chasers, such possession must be inconsistent with the occupant's ap-

232 Id at 119-20 (quoting 23 THE AMERICAN & ENGLISH ENCYCLOPEDIA OF LAW 506

Constructive Notice

THE CHAIN OF TITLE - ARE You MISSING ANY LINKS? 501 A Babble for the Ivory Tower or Sound and Pru-

A purchaser is considered to have constructive notice of information within their chain of title, making it essential to define "chain of title," establish when an instrument is "recorded," and identify what qualifies as a recordable instrument According to West Virginia Code Section 39-1-2, the county clerk outlines the criteria for admitting deeds, contracts, and other instruments for recording, which is crucial for serving as constructive notice.

239 Pocahontas Tanning Co., 60 S.E at 894 (quoting Burwell's Adm'rs)

240 431 S.E 95 (W Va 1993) See also James v Lawson, 136 S.E 851 (W Va.

242 Id at 204 See also Colson, supra note 42, at 37; PATrON, supra note 41, § 15

243 Note that the second paragraph of the statute specifically prohibits the clerk from

WEST VIRGINIA LAW REVIEW tice the instrument must be "recordable." As the court in South Penn

Oil Co V Blue Creek Development Co.,244 said:

Copying an unrecordable deed into the official records does not constitute proper recordation, and therefore, it does not provide notice to subsequent bona fide purchasers of the conveyed land.

The record does not operate as a constructive notice, unless the instrument is duly executed, and properly acknowledged or proved, so as to entitle it to be recorded 2 " 5

When an instrument is eligible for recordation, it is officially recorded, establishing constructive notice once submitted to the clerk This principle is highlighted in Bank of Marlinton v McLaughlin, where it is stated that a recordable deed or deed of trust filed with the county clerk's office serves as constructive notice.

According to Code 40-1-8, even if the clerk fails to properly record it, the document still serves as constructive notice Additionally, the subsequent destruction of the record does not change its status as notice, as established in Syllabus Point 3 of Wethered v.

In Conrad, the court emphasized that a grantee who records their deed with the county clerk is protected under the recording act, ensuring that even if the record is destroyed, it still serves as notice to affected parties According to W VA CODE § 39-1-2 (1982), any instrument securing a debt must identify the beneficial owner and their residence at the time of execution However, in Belknap v Shock, the court ruled that these requirements do not apply to acknowledgments under Section 39-1-3.

245 Id at 1030 (citations omitted) See also Cox v Wayt, 26 W Va 807 (1885);

Clarksburg Casket Co v Valley Undertaking Co., 94 S.E 549 (W Va 1917); Thrig v.

A Babble for the Ivory Tower or Sound and Prudent Advice?

A chain of title is defined by Black's Law Dictionary as the record of successive conveyances or alienations affecting a specific parcel of land, arranged from the original source of title to the current holder Title lawyers recognize that the law assigns constructive notice of recorded conveyances to property owners, which creates an obligation to review records for any out-conveyances occurring between the acquisition of title and the subsequent transfer For instance, if an individual named A acquired title to a property called Blackacre in 1970 and later sold it, they must examine any relevant conveyances that occurred during that period to ensure a clear chain of title.

Blackacre in 1980, the title examiner needs to determine what A did as

The title examiner must review conveyances related to Blackacre, including deeds, easements, and security interests, that are recorded in the grantor index under the owner's name from 1970 to 1980, as these could impact the title.

In West Virginia, a deed executed by A for Blackacre in 1960, prior to acquiring title, raises important questions regarding the validity of the transaction The state acknowledges the principle of estoppel by deed, particularly in the context of warranty deeds This principle is articulated in Syllabus Point 5 of the case Johnston v Terr, highlighting the legal implications of such deeds between the parties involved.

A grantor who transfers real estate through a deed that includes a general warranty of title, but possesses no valid title or has a defective title at the time of the transfer, cannot later claim any title to the property against the grantee or their successors if they acquire a valid title after the deed is executed.

250 BLACK'S LAW DICTIONARY 229 (6th ed 1990).

Estoppel by deed is applicable exclusively to warranty deeds, as highlighted in Egnor v Roberts, 191 S.E 532 (W Va 1937) In this case, the court noted that the "deed" in question lacked any warranties, emphasizing the distinction between warranty deeds and those without warranties.

A grant of land is a mere transfer of such title or right thereto as the grantor, at the time of the grant, may hold or have, absolutely or contingently.

West Virginia acknowledges estoppel by deed as outlined in West Virginia Code Section 40-1-15; however, its applicability is primarily confined to the parties involved in the warranty deed and the grantee's successor in title Consequently, estoppel by deed does not extend its effects beyond these specific parties.

"purchasers" from the grantor Section 40-1-15 reads:

A purchaser's title shall not be impacted by the recorded deeds or contracts of individuals from whom they do not derive their title Furthermore, if a deed or contract was recorded before the purchaser acquired legal title from the relevant party, it will not affect their ownership rights.

The statute addresses two key issues relevant to title attorneys, clarifying that a purchaser is not considered to have constructive notice of recorded instruments when the "grantor" is a "stranger" to the chain of title For instance, if the owner of Blackacre is O, and X, a "stranger" to Blackacre's title chain, attempts to "grant" the property, the purchaser is not bound by this transaction.

Blackacre to Z, and Z "records" the deed, a purchaser from 0 ""shall not be affected by [that] deed 254

A grant does not assert the grantor's title or imply any warranty to the grantee regarding the land Furthermore, a conveyance made without warranty through mere estoppel eliminates any title or claim the grantor had at the time of the conveyance, but it does not transfer any title that the grantor may acquire in the future to the grantee.

253 W VA CODE § 40-1-15 (1982) In one of the early decisions applying this stat- ute, Hoult v Donahue, 21 W Va 294 (1883), the court explained the statute as follows:

The provision of the code, introduced in the 1849 revision, was designed to implement the principles outlined by Chancellor Kent in the case of Murray v Ballou, I Johns Ch.

Deeds From Common Grantors - More Babble

Deeds of Trust and Mortgages

Once the chain of title is established, the title examiner must investigate previous owners for any conveyances that could impact the title's quality or quantity, considering the relevant time period for each owner It is essential to note that while deeds of trust and mortgages are recorded separately from deeds, secured parties under these instruments are treated as "purchasers" rather than "creditors" under recording acts Additionally, the statute of limitations on vendor's liens, deeds of trust, and mortgages, first adopted in 1921, has been determined not to apply retroactively.

Liens on real estate, whether from conveyances, trust deeds, or mortgages, become invalid after twenty years from the due date of the secured debt unless legal action to enforce the lien is initiated within that timeframe If a new debt arises that is secured by the same lien, the lien remains valid for an additional twenty years from the due date of the new obligation, provided that enforcement action is taken before the period ends Extensions or renewals of the original debt do not affect the validity of the lien beyond the specified time limits.

WEST VIRGINIA LAW REVIEW [Vol 98:449 roactively in spite of the statute's express language In Le Sage v.

In Switzer, the court addressed the application of a twenty-year statute of limitations to a deed of trust established in 1909 The court ruled against barring a sale under the deed, emphasizing that the parties had consented to the borrowing terms based on the law as it was in 1909 It affirmed the creditor's right to enforce the contract according to that law, stating that any subsequent legislation, such as the 1921 law limiting the duration of a deed of trust, would fundamentally alter the original agreement and thus violate the U.S Constitution A significant exploration of this statute can be found in McClintic v Dunbar.

In the case of Land Co v McClintic, a vendor's lien was established in a conveyance dated November 26, 1919, to secure the payment of six notes due over one to five years The court highlighted that this situation differs from a procedural prohibition commonly associated with the statute of limitations.

The provision 55-2-5 does more than establish a procedural limitation; it renders the lien entirely invalid for all purposes Unlike a standard statute of limitations, which must be asserted by the party facing the claim, this rule effectively extends the previously mentioned twenty-year limitation period.

To maintain the validity and enforceability of a lien, the vendor, mortgagee, trustee, or beneficiary, along with their successors or assigns, must file an affidavit before the original limitation period expires This affidavit must detail the unpaid balance of the debt and interest secured by the lien instrument Once filed, the lien will remain enforceable for an additional twenty years unless released earlier The court clerk is responsible for recording and indexing this extension affidavit in the same manner as the original lien instrument, noting its filing in the margin of the original record These provisions apply to both existing and future liens.

In 1996, it was emphasized that a lien declared invalid by the Legislature holds no legal power and cannot serve as a foundation for any decree or judgment According to standard statutes of limitations, actions on notes secured by a lien can be barred after a specified period at the discretion of the note's maker, leaving only the lien itself to secure the notes Once a lien is deemed invalid, it renders the original right completely nullified, resulting in a total loss of value Therefore, the implications of this legislative action are significant.

1921, and the subsequent Code provision, amounted to more than a proce- dural statute of limitation, and in so far as they operate retroactively are unconstitutional and void 8 9

Section 55-2-5 governs liens created by security instruments such as vendor's liens, trust deeds, and mortgages on real estate The obligation to pay arises from the note, which represents the personal commitment of the maker, while the security interest uses the land as collateral to ensure payment Importantly, the note is a separate legal document with its own statute of limitations, distinct from Section 55-2-5 If the note qualifies as a negotiable instrument, the statute of limitations is six years; however, if it does not meet these criteria and is treated as a contract, different rules apply.

10 year statute of limitation set forth in Section 55-2-6 would be appli- cable Therefore, it is possible to have a case in which the statute of

289 Id at 597 The holding is succinctly expressed in the case's sole Syllabus Point as follows:

Chapter 65 of the Acts of the Legislature from 1921, amended by Code 55-2-5, is deemed unconstitutional and void due to its retroactive application This retroactive clause undermines contractual obligations, violating Section 10 of Article I of the United States Constitution.

Section 4 of Article M of the Constitution of this State.

Id at 593 (syllabus of the court) See also Kuhn v Shreeve, 89 S.E.2d 685 (W Va 1955).

290 See NV VA CODE § 38-1-1 (1985) (Providing:

When a person conveys real estate or any interest in it, they do not automatically retain a lien for any unpaid purchase money unless this lien is explicitly stated in the conveyance document To enforce a vendor's lien, one must initiate a suit in equity.

291 See generally W VA CODE §§ 46-3-101 to -805 (amended and reenacted in

In the case of Morgan v Farmington Coal & Coke Co., the West Virginia court addressed the issue of whether the expiration of the statute of limitations on notes would prevent the enforcement of a vendor's lien securing those notes The court ruled that the right to enforce the assigned lien remains intact even after the legal remedy for collecting the debt has lapsed due to limitations Furthermore, the court dismissed the defendant's claim that any equitable defenses applicable to the notes could also be used against the lien, rejecting the reasoning of a South Carolina decision that supported this argument.

The character of a lien remains unchanged even if the associated note is unenforceable The inability to enforce the note does not alter the nature of the debt or the lien that secures it A creditor retains the right to enforce the lien, despite the note being barred by limitations, as they possess two distinct remedies; thus, losing one does not diminish the effectiveness of the other.

In a foreclosure involving multiple deeds of trust or liens on a property, the purchaser acquires a title free from all junior mortgages or liens related to the mortgage being foreclosed However, the buyer at a foreclosure sale of a junior mortgage must adhere to the rights of more senior mortgages or liens Essentially, the foreclosure process places the buyer in the position of the mortgagor at the time the mortgage being foreclosed was executed.

A deficiency judgment cannot be issued on a note if the proceeds from the sale of the secured asset do not fully cover the outstanding debt.

298 GRANT S NELsON & DALE A WHiTMAN, REAL EsTATE FINANCE LAW § 1.1, at

The scope of title examination in foreclosure cases is highlighted by the recent ruling in Young v., which confirms that a buyer at a foreclosure sale under a second priority deed of trust assumes the role of the "mortgagor" as of the date the deed of trust was executed This decision emphasizes the importance of understanding the implications of title examination for purchasers in foreclosure scenarios.

Liens Other Than Consensual Collateral Security

Judgments

In this State, any monetary judgment issued will establish a lien on all real estate owned or acquired by the defendant from the date of the judgment onward.

Such lien shall continue so long as such judgment remains valid and en- forceable, and has not been released or otherwise discharged." 4

The lien established by Section 38-3-6 becomes effective on the date of judgment; however, it remains unenforceable against purchasers who acquire property for valuable consideration without notice, as well as against other lien creditors, until it is officially docketed.

Section 38-3-5, and, unless the judgment is "extended" by writ of execution, the judgment lien is subject to a ten year statute of limita- tion 3 0 5

A judgment can affect after-acquired property, making the time before an individual gains title to real estate significant Given that the lien remains valid for ten years, it is essential to review the judgment docket for anyone who has owned the property within that timeframe If an individual has transferred ownership of the real estate, this must also be considered.

No judgment shall be a lien as against a purchaser of real estate for valuable consideration without notice, unless it be docketed according to the fifth section

[(§ 38-3-5)] of this article, in the county wherein such real estate is, before a deed therefor to such purchaser is delivered for record to the clerk of the county court

A judgment recorded by the county commission will not serve as a lien against a purchaser after ten years from its issuance, unless an execution has been filed within that period or the purchaser has actual notice of the execution Furthermore, even if one or more executions have been filed, the judgment will not be a lien after ten years from the date of the last filed execution unless the purchaser is aware of the execution issued within the ten years leading up to their purchase.

306 See W VA CODE § 38-3-5 (1985) (emphasis added).

SCOPE OF TITLE EXAMIATION before the judgment is entered against him or her, such judgment would not attach to the conveyed property.

Executions

The writ of execution is crucial for two main reasons Firstly, it is necessary for a judgment creditor to obtain this writ before filing a creditor suit within two years of the judgment Secondly, if more than two years have elapsed since the judgment was entered, the issuance and return of the writ are no longer required.

In Jarvis v Porterfield," 9 the court explained these alternatives as follows:

In a number of cases this Court has examined the wording of this statute It has concluded that it creates two categories of creditors suits.

The first category includes lawsuits initiated within two years following the judgment that established the creditor's lien, while the second category encompasses lawsuits filed more than two years after the judgment that created the judgment lien.

The Court consistently asserts that for suits filed within two years of the judgment that established the judgment lien, the issuance and return of a fieri facias execution is a necessary prerequisite for the circuit court to gain jurisdiction to enforce the judgment lien.

This rule mandates that a judgment creditor must first make a genuine effort to collect their debt through legal action against the judgment debtor's personal assets before taking further steps.

A judgment lien can be enforced in a court of equity after an execution of fieri facias has been returned, indicating no property was found for execution However, if no execution has been issued within two years of the judgment, the lien can still be enforced in equity If the court determines that the rents and profits from the real estate under the lien will not satisfy the judgment within five years, it may order the sale of the property, with proceeds applied to settle the judgment.

The West Virginia Law Review discusses the implementation of a stringent equitable remedy that allows for the forced sale of a judgment debtor's real estate This approach aims to establish a notification system, ensuring that the judgment debtor is informed within two years of the judgment entry that their property will be sold if the judgment remains unsatisfied.

The second purpose of the writ of execution is to "extend" or

A judgment remains valid for ten years from its issuance date but can be renewed if an execution is filed within that period Successive executions can be used to maintain a judgment's lien, adhering to the limitations outlined in Section 38-3-18.

A judgment can be executed within ten years from its date, and if an execution is issued within this period, additional executions can occur within ten years from the return day of the last unsatisfied execution Legal actions, such as suits or scire facias, can be initiated based on a judgment within ten years of the judgment date or within ten years from the last unsatisfied execution's return day However, if the action is against a personal representative of a deceased party, it must be filed within five years of their qualification.

Under current law, judgments from several years ago can still serve as valid liens against a property through successive executions within a ten-year timeframe Title examiners must examine each entity listed in the title chain, checking the execution docket for the past decade If no execution is found within this period, the right to renew it has lapsed Conversely, if an execution is identified within ten years, further investigation is required to ascertain whether the judgment was directed against the property's owner during a time it could establish a lien.

SCOPE OF TITLE EXAMINATION property, whether the judgment has since been paid or otherwise dis- charged, or whether some limitation contained in West Virginia Code

If the title examiner discovers no judgments or executions within the past ten years, they can confidently report that there are no valid judgment liens on the property Furthermore, any enforcement of earlier judgments would be barred by the statute of limitations.

Mechanics' Liens

The potential of mechanics' liens creates special problems for title lawyers 14 While "mechanics' liens" are frequently associated with

The statutes governing "new construction" encompass the erection, alteration, removal, or repair of any building or structure, as well as improvements related to them This includes professionals such as architects, surveyors, engineers, and landscape architects, which significantly increases the likelihood of encountering a mechanics' lien during title examinations.

The county commission clerk is responsible for maintaining the "Mechanic's Lien Record," but title lawyers cannot depend solely on this record to safeguard their clients The law includes a "grace" period between the completion of work and the filing date, which complicates the title lawyer's task Understanding this statute is crucial for addressing the challenges faced by title lawyers in protecting their clients' interests.

Under Section 38-2-17, the lien attaches as of the date the "work" begins or the material is fumished 3 17 and "shall have priority over

314 As used in this Article, the term "mechanics' lien" is intended to include the liens described in Sections 38-2-1 to -39 W VA CODE §§ 38-2-1 to -39 (1985 & Supp 1995).

The term encompasses various liens, including materialmen's liens, mechanics' liens, and those of architects, surveyors, engineers, and landscape architects, as outlined in a 1991 amendment to Article 2 of W VA CODE § 38-2-6a (Supp 1995).

315 W VA CODE § 38-2-1 (Supp 1995) See also W VA CODE §§ 38-2-3 to -6

317 The lien attaches to the land if the contract is with the owner of the property See

In West Virginia, once a lien is established on a property under Section 38-2-17, it remains enforceable against future purchasers and takes precedence over any subsequent deeds of trust or liens created afterward Importantly, the law stipulates that any payments made by the property owner to contractors or subcontractors do not diminish or negate the rights of subcontractors, laborers, or suppliers concerning their mechanics' liens Therefore, proving payment to the contractor does not guarantee immunity from potential mechanics' lien issues.

The lien on the property begins when the initial work starts, but the obligation to provide notice only commences after the final work or material has been supplied.

319 Thom v Barringer, 81 S.E 846 (W Va 1914) (Syllabus Points 2 through 5 succinctly state this aspect of the law:

2 A mechanic's lien attaches and dates from the time the first work is done or the first materials are furnished under the contract giving rise to it

3 One purchasing premises on which buildings are in the process of erection must make inquiry and take notice of any mechanic's lien right that has attached prior to his purchase.

4 A conveyance of the property, or an incumbrance placed thereon after a mechanic's lien attaches by a beginning of performance under the contract, does not cut off or affect the right to the mechanic's lien for the whole, though a part of the execution of the contract is before and a part after the time of the convey- ance or incumbrance.

5 When a mechanic's lien arises and attaches by reason of the beginning of performance under a contract with the owner, the lien is properly filed under Code

1906, ch 75, sec 2, though before the time the contract is completed and the lien is filed the owner who made the contract has conveyed the property to another.).

This article defines that all materials supplied, work performed, and services rendered by any individual, company, or corporation related to a single building or its improvements, as well as the real property it occupies or may be relocated to, will be regarded as a single contract This holds true regardless of whether all materials were purchased simultaneously.

To perfect a mechanics' lien, compliance with statutory requirements is essential for mechanics and materialmen If a subcontractor provides work or materials to a contractor, they must notify the property owner or their authorized agent within sixty days of completing the work or supplying materials However, if the contract is directly with the owner or if materials and work are supplied directly to the owner, no notice is required, as the owner is already aware of the services rendered.

"aware" of those contractual obligations 7

A mechanics' lien notice must be filed with the county commission clerk within ninety days after completing work, providing materials, or delivering services This ninety-day window starts from the date the last work or services were performed Until the notice is filed, there is no official record of the lien; however, the lien attaches to the property when the work begins and remains valid against any subsequent deeds of trust or conveyances Importantly, these liens apply to all improvements made to real estate, not just specific types of work or services.

"new construction." The "final step" in perfecting the lien is the filing of suit to enforce the lien authorized in the mechanics' lien statute.

A lawsuit must be initiated within six months of the lien notice being filed in the clerk's office If the lien is validated through the lawsuit, it applies to all work, labor, or services rendered, regardless of whether they were contracted simultaneously or at different times.

327 Biddle Concrete Co v McOlvin, 111 S.E 843 (W Va 1922).

Unless a suit in chancery to enforce any lien authorized by this article is commenced within six months after the person desiring to avail himself thereof

In West Virginia, when a lien is established, the court can order the sale of the property and issue a personal decree for creditors Title examiners must review the appropriate index for mechanics' liens, but the challenge arises from the ninety-day window between the end of work or services and the deadline for filing the lien notice If the property owner has not utilized statutory protections, there are three primary solutions available to safeguard the purchaser.

A lawyer can confirm the absence of potential mechanic or materialman liens by verifying that no work, services, or materials have been provided related to the property in the last ninety days If work has been done within this timeframe, the attorney can ensure that all parties entitled to assert such liens have been fully compensated or that adequate funds are set aside to cover any claims Additionally, the attorney may secure a waiver of lien from all potential claimants The title examiner must investigate the index for mechanics' liens associated with both the current and previous owners over a sufficient period to ensure there are no perfected liens It is important to note that a lawsuit is required to perfect a mechanics' lien, and typically, filing a lis pendens is necessary to give constructive notice of the ongoing lawsuit, as outlined in the lis pendens statute.

A lien based on a judgment, decree, claim, contract, or other legal instrument must be properly recorded in the county clerk's office If the lienholder files a notice as required, the lien may be discharged However, if a lawsuit is initiated by any lienholder, it serves to protect the interests of all other lienholders on the same property, allowing them to intervene in the suit to enforce their liens, similar to procedures in other chancery cases.

332 See W VA CODE § 38-2-22 (1985), entitled "Limitation of owner's liability by recordation of contract and bond of general contractor."

The scope of title examination involves the verification of public records related to real estate within the county where the property is located Even if a notice of lis pendens is not filed, it does not invalidate the enforcement of any lien, right, or interest in the property against a purchaser or encumbrancer during the pending litigation.

In Rardin v Rardin, 335 a case which involved an unrecorded judgment, the court explained the basis for the proviso in Section 55-

Lis Pendens

Real estate title records are kept at the county commission clerk's office, but the results of lawsuits filed in the appropriate court can also influence real estate titles.

To ensure potential land buyers are informed of any pending lawsuits that could impact the property's title, a lis pendens notice serves as a crucial alert system This legal record addresses the need for transparency in real estate transactions by outlining the specific requirements for filing a lis pendens notice.

When initiating a legal proceeding to enforce a lien or interest in real estate, the action does not serve as constructive notice to potential buyers or encumbrancers until a memorandum of the proceeding is recorded with the county clerk This memorandum must include essential details such as the case title, court information, involved parties, a description of the property, and the nature of the lien or interest However, if the lien or interest is based on a judgment or document already recorded in public records, the lack of this notice will not prevent its enforcement against any subsequent purchasers or encumbrancers.

The clerk of each county commission is required to promptly record any memorandum or notice in the "lis pendens record," documenting the date and time of the filing, and ensuring that it is indexed under the names of the involved parties.

Each county in the state must maintain a public record known as the "lis pendens record" in the office of the county clerk.

339 W VA CODE § 55-11-2 (1994) The lis pendens notice for eminent domain pro-

If a party seeks a lien of attachment on real estate, 340

The plaintiff is granted a lien on the defendant's real estate that has been attached, effective from the moment the attachment is initiated However, this lien can be invalidated if the real estate is sold to a buyer for value who is unaware of the lien before the plaintiff files a notice of lis pendens, as outlined in Article 11, Chapter 55 of this Code.

A lis pendens filing establishes a constructive notice that remains valid for ten years This notice can be renewed for an additional ten years by submitting a compliant notice within the initial ten-year timeframe, in accordance with Section 55-11-2.342.

Therefore, a title examiner's task in examining the lis pendens record would be similar to that discussed above under executions

When reviewing property ownership, it's essential to examine any lis pendens filed within the last ten years, as those filed earlier and not extended do not provide constructive notice Additionally, if a lis pendens has been renewed, the renewal filing must also fall within this ten-year timeframe.

Federal, State and Local Taxes (Exclud-

The county commission clerk is mandated by our code to keep a federal tax lien docket, ensuring that these liens are not enforceable against any mortgagee, purchaser, or judgment creditor until proper notice is filed, as outlined in Section 54-2-4a of the West Virginia Code (1994).

340 See generally W VA CODE §§ 38-7-1 to -46 (1985 & Supp 1995).

Constructive notice of a lawsuit or proceeding, resulting from the filing of a notice as per section 55-11-2, remains effective for ten years for any potential buyers or encumbrancers of the affected real estate This notice can be renewed for additional ten-year periods by filing a similar memorandum or notice of lis pendens within ten years of the last recordation.

343 See W VA CODE § 38-10-1 (1985) (Providing, in part:

A similar provision exists for liens in favor of the State of West

Virginia, or any political subdivision thereof, or any municipality 34

If the property is served by a public service district, 345 Section

According to Section 16-13A-9, all overdue fees and charges related to water, sewer, or gas facilities established by the district are considered liens on the serviced properties, holding the same priority as state, county, school, and municipal taxes Additionally, Section 16-13A-3 reinforces this provision.

From the date the order establishing a public service district is adopted, it becomes a public corporation and a political subdivision of the state; however, it does not possess the authority to levy or collect ad valorem taxes.

Federal tax liens and their discharge certificates can be filed with the county clerk's office in various counties within the state Each county clerk is required to maintain a federal tax lien docket in a well-bound book, where they must promptly record any notice of a lien filed against a person's property by the United States for unpaid taxes, including any associated interest, penalties, and costs Additionally, these notices must be indexed under the name of the individual facing the lien It's important to note that a tax lien is not considered valid against any mortgagee, purchaser, or judgment creditor until it has been officially filed with the county clerk's office in the relevant county or counties where the property is located.

See also W VA CODE §§ 38-IOA-1 to -5 (Supp 1995); W VA CODE § 38-IOD-1 (Supp.

344 See W VA CODE § 38-IOC-1 (1985) (Providing:

In West Virginia, no lien held by the State, its political subdivisions, or municipalities, whether existing now or in the future, shall be enforceable against a purchaser, except for tax liens arising under Article 8 of Chapter 11 of the West Virginia Code.

In the context of real estate or personal property transactions, a lien creditor can acquire rights without prior notice, provided that the lien is duly docketed in the county clerk's office before the deed is recorded The term "purchaser" refers specifically to creditors whose liens were established and perfected before the docketing process.

345 See generally W VA CODE §§ 16-13A-1 to -25 (1995 & Supp 1995).

The scope of title examination includes the necessity for public service liens to be properly docketed to ensure enforceability against purchasers of real estate for valuable consideration, particularly when they have no notice of such liens, as outlined in Section 38-10C-1.

These sections outline the procedures for docketing or filing notices of various governmental liens to ensure constructive notice Typically, the statute of limitations for each lien is established as part of the substantive law governing that lien.

RELEASES

When a lien on real estate is discharged, it is essential to record a lien release with the county commission clerk to ensure the public records accurately reflect the obligation's discharge Statutory forms for these releases are available, and upon presentation of a release to the clerk, the statute outlines the necessary procedures to follow.

The clerk is responsible for recording and indexing all releases and assignments in a designated well-bound book Upon recording any instrument, the clerk must also annotate the relevant lien's record or docket in the margin, including a reference to the specific book and page where the release or assignment is documented.

Under W VA CODE § 11-10-12(a) (1995), state taxes outlined in Section 11-10-3 create a lien on both real and personal property of the taxpayer This lien remains in effect until the tax liability, including any additions, penalties, and interest, is fully paid or until ten years have passed from the due date of these amounts or the filing date of the tax return, whichever occurs later.

351 W VA CODE § 38-12-9 (1985) See W VA CODE § 38-12-12 (1985) (describing how to note the satisfaction of an executor on a judgment).

Title examiners often depend on margin notations in records to verify lien releases, as outlined in Section 38-12-9 However, since confirming a lien's release requires more than a simple clerical task, title examiners must thoroughly review the release document itself This includes ensuring the release is complete rather than partial, verifying it is signed by the appropriate individual or authorized representative, checking that it has been properly acknowledged, and confirming that it accurately describes the lien being released.

MISCELLANEOUS

The chain of title primarily includes the deed, but it can also encompass quasi-judicial proceedings related to estate administration and other judicial actions In these instances, it is crucial for the title attorney to ensure that the proceedings adhered to applicable laws While a comprehensive analysis of these various proceedings is not the focus of this article, understanding their relevance to title examination is essential for effective legal practice.

Estates

When managing an estate, a crucial aspect is accurately identifying the successor in title to the property If the deceased left a will, it is essential to examine its validity and proper execution, as these factors significantly influence the distribution of the estate.

SCOPE OF TITLE EXAMNATION is of concern 4 If the person dies intestate, then the relevant statutes of descent are important 5

In addition to the statutory changes in intestate succession law made in 1957, 1992, and 1993, several judicial decisions have significantly influenced this area Notably, in 1969, the court recognized the concept of equitable adoption, which acknowledges an informal adoption that does not comply with statutory requirements Although the court has not specifically addressed equitable adoption in title examinations, it remains a crucial legal concept for title examiners to consider when identifying the heirs of deceased individuals who own real property Furthermore, title attorneys should be aware of the implications of the court's ruling in Adkins v McEldowney regarding this matter.

States Supreme Court decision in Trimble v Gordon, 361 by holding that "Code, 42-1-5 must be applied to permit illegitimate children to inherit from both father and mother." 362 ' In Williamson v Gane, 63

354 See generally W VA CODE §§ 41-1-1 to -5-20 (1982 & Supp 1995).

355 See W VA CODE §§ 42-1-1 to -10 (Supp 1995).

356 See generally John W Fisher, II & Scott A Cumutte, Reforming the Law of In- testate Succession and Elective Shares: New Solutions to Age-Old Problems, 93 W VA L.

REV 61 (1990); John W Fisher, II, Statutory Reform Revisited: Toward a Comprehensive

Understanding of the New Law of Intestate Succession and Elective Share, 96 W VA L.

357 Wheeling Dollar Say & Trust Co v Singer, 250 S.E.2d 369 (W Va 1969) See also First Nat'l Bank in Fairmont v Phillips, 344 S.E.2d 201 (W Va 1985); Kisamore v.

358 See generally W VA CODE §§ 48-4-1 to -11 (1995).

359 See generally King v Riffee, 309 S.E.2d 85 (W Va 1983), Syllabus Point 2 of which holds:

Under intestate succession laws, an adopted child's rights to inheritance are determined by the statutes in place at the time of the ancestor's death, rather than the laws that were applicable during the child's adoption.

See also Morgan v Mayes, 296 S.E.2d 34 (W Va 1982); Transamerica Occidental Life Ins.

Co v Burke, 368 S.E.2d 301, Syl Pt 2 (W Va 1988) (construing a will, the court said

"[t]he term 'children' ordinarily does not include stepchildren, but it may include stepchil- dren when a contrary intent is found from additional language or circumstances").

The West Virginia Law Review highlights that the court's majority opinion in "Adkins v McEldowney" establishes full retroactivity, provided there is no justified detrimental reliance on the invalidated law, the property in question has not been transferred to an innocent purchaser for value, and the estate administration is still open to further resolution.

In most cases, attorneys examining title must depend on the affidavit of heirs However, if the executor, administrator, or another reliable individual provides inaccurate information, the affidavit may not accurately represent the successors to the decedent's real property It's important to note that the legal definition of heirs often differs from the general public's understanding, and typically, it is a layperson who answers the questions needed to complete the affidavit of heirs.

Determining a decedent's heirs can be complex, but other estate administration aspects are relatively straightforward It is essential for the attorney to verify that the property in question was included in the decedent's estate appraisal.

Proper administration of a decedent's estate is crucial, as the real estate may be liable for outstanding debts This ensures that creditors have the opportunity to submit their claims, allowing for the resolution of their validity.

Estate taxes create a lien on the deceased's property, making it essential to verify that all estate taxes have been settled or confirmed as non-existent Additionally, challenges may arise in situations where a valid will is present.

364 Id at 318 (citation omitted) (syllabus of the court).

368 See generally W VA CODE §§ 44-2-1 to -29 (1982 & Supp 1995).

370 See generally W VA CODE §§ 11-11-1 to -42 (1995) Section 11-11-17(a) pro- vides that the tax shall be a lien for ten years after the decedent's death and Section 11-11-

17(d) provides for the issuance of a release when the tax has been paid or it is determined that there is no tax due See W VA CODE § 11-1l-17a (1995) (respecting a nonresident

The scope of title examination is crucial when a personal representative sells property not devised in the will Real property transfers directly to the devisee or heir upon the decedent's death, meaning the executor lacks the authority to convey the title However, a 1987 amendment to Section 44-8-1 has addressed this issue for wills effective after June 12, 1987, providing clarity in such transactions.

Judicial Proceedings

Judicial proceedings can serve as a critical link in the chain of title, particularly in cases such as partition actions, judgment creditors' suits, and summary proceedings for the sale or lease of property owned by individuals with disabilities or legal incapacity It is essential for the title attorney to ensure that these proceedings align with statutory requirements to maintain the integrity of the title.

371 In 1987, the legislature added the last two paragraphs to Section 44-8-1 The stat- ute, in its entirety, reads as follows:

In cases where real estate is designated for sale in a will and no additional executor is appointed, the appointed executor is responsible for selling and conveying the property The executor or their successor will handle the proceeds from the sale, as well as any rents and profits from the real estate authorized by the will If no executor qualifies, or if the qualifying executor passes away, resigns, or is removed before completing the trust, the administrator with the will annexed will take over the sale and management of the property, receiving proceeds and profits just as an executor would.

An executor named in a will has the authority to sell the testator's real estate that is not specifically devised, unless the will states otherwise If the will instructs the sale of real estate but does not name an executor, or if the named executor is unable to act due to death or resignation, an administrator with the will annexed can be appointed to carry out the sale of the real estate.

Any conveyance made before June 12, 1987, shall remain valid and unaffected by the amendments adopted by the Legislature during its regular session in 1987.

372 See generally W VA CODE §§ 37-4-1 to -8 (1985).

373 See generally W VA CODE §§ 38-3-1 to -19 (1985).

374 See generally W VA CODE §§ 37-1-1 to -17 (1985).

To make this determination, attorneys typically review the original file at the clerk of circuit court's office Two key inquiries are standard across all related proceedings.

To ensure the validity of court proceedings, the examiner must confirm that the court had proper jurisdiction over the case and that all essential parties were appropriately present, either through valid service of process or by consenting to the court's jurisdiction.

To ensure a valid title transfer in a foreclosure scenario under a deed of trust, it is essential to adhere to the relevant statutory provisions, including the appointment of a substitute trustee, as well as the requirements outlined in the trust instrument.

Delinquent and Nonentered (Forfeited) Land

CONCLUSION

The title examination aims to identify defects that impact the quality or quantity of the current owner's interest in a property The scope of the title search is determined by the legal knowledge attributed to those interested in the property and the rights deemed superior to those acquired by the purchaser In West, the law outlines these considerations, although some issues regarding the "chain of title" remain unclear due to a lack of explicit guidance from the courts or legislature.

Virginia offers clear guidance on relevant issues, emphasizing the practicality of matters rather than their necessity This discussion aims to help professionals involved in title work make informed decisions and effectively utilize their time for the benefit of their clients.