Deeds and Warranties of Title

Chapter 31 examined the executory contract by which a seller undertakes to convey and a buyer undertakes to purchase. That chapter closed with merger by deed. Chapter 32 begins where the contract ends, with the instrument that performs it.

Three propositions govern the whole of this chapter, and a reader who confuses any two of them will misanalyze nearly every problem in it. A contract for the sale of land and a deed are not the same instrument. Execution of a deed and delivery of a deed are not the same event. Delivery of a deed and recording of a deed are not the same event. A deed may pass title between grantor and grantee without ever being recorded, subject to the rights of third parties under the applicable recording statute examined in Part XI. Recording is a system of public notice and priority; it is not, in the ordinary case, the event that creates the conveyance.

1. A deed is a written instrument manifesting a present intent to convey an estate or interest in land. Its operative language, not its caption, determines its legal character.
2. The label on an instrument is not dispositive. An instrument headed “Deed” that lacks words of present grant, an identifiable grantee, or delivery may convey nothing; an instrument oddly captioned may nonetheless operate as a conveyance.
3. Validity between the parties, recordability, and priority against third parties are three distinct inquiries. A deed may be perfectly valid inter partes yet unrecordable for want of acknowledgment, and unrecorded deeds may lose priority without becoming invalid.
4. Modern conveyance ordinarily requires a writing. State conveyancing statutes descended from the Statute of Frauds displaced the ceremonial livery of seisin, but their terms vary and must be consulted.
5. The grantor must be competent and identified; the grantee must be identifiable. A deed to a nonexistent or wholly unascertainable grantee ordinarily fails, though the standard is identifiability rather than perfect naming.
6. Words of present grant are required; words of future promise are not enough. “Grant,” “convey,” and equivalents indicate present operation; a promise to convey later is a contract, not a conveyance.
7. The description must identify the land or supply the means of identifying it. Courts construe descriptions to effectuate intent and resort to established priorities among conflicting calls.
8. Consideration is generally not required for a deed to operate between the parties. Recited or nominal consideration may matter for recording, transfer tax, bona fide purchaser status, and creditor challenges, but a validly delivered gift deed can convey.
9. Notarization is not universally an element of validity. Acknowledgment ordinarily concerns recordability, authentication, and evidentiary effect; where a State makes it an element of validity, that is a statutory rule, not a general principle.
10. Delivery is a question of grantor intent, not of physical handing over. The test is whether the grantor intended the instrument to become presently operative and to surrender control over it.
11. Acceptance is required, and is ordinarily presumed where the conveyance is beneficial. The presumption may be rebutted, and a grantee may disclaim.
12. Recording without authority does not supply delivery. A deed recorded by a grantee who obtained it without a delivering intent is ordinarily ineffective, though recording raises a rebuttable presumption of delivery.
13. Escrow separates deposit from delivery. On deposit with a true escrow the grantor's power to recall is limited; on satisfaction of the condition the deed becomes operative and, where necessary, relation back may date title to the deposit.
14. General warranty, special warranty, and quitclaim deeds differ in the assurance given, not necessarily in the estate conveyed. A quitclaim of a fee simple absolute conveys as much estate as a warranty deed of the same land; it simply warrants nothing.
15. The traditional six covenants of title divide into present and future covenants. Seisin, right to convey, and against encumbrances are present; quiet enjoyment, warranty, and further assurances are future.
16. Present covenants are breached, if at all, at delivery. The statute of limitations runs from delivery, and at common law they were generally held not to run with the land in many jurisdictions.
17. Future covenants are breached only upon eviction, actual or constructive, or its equivalent. They run with the land and may be enforced by remote grantees.
18. A forged deed is void; a deed procured by fraud in the inducement is ordinarily voidable. That distinction determines whether a subsequent bona fide purchaser can take good title.
19. After-acquired title may inure to the grantee by estoppel by deed. The doctrine ordinarily applies to warranty conveyances and not to a simple quitclaim, and its effect against third parties depends on the recording system.
20. Errors are corrected by reformation or by a corrective deed, not by unilateral alteration. Altering an executed instrument after delivery does not divest title already conveyed.

1. Define a deed and distinguish it from a land-sale contract, lease, mortgage, will, power of attorney, and title policy.
2. Place execution, delivery, acceptance, and recording within the transactional sequence without collapsing them.
3. Trace conveyancing from livery of seisin through the Statute of Uses and the Statute of Frauds to modern statutory forms.
4. State the formal requisites of an effective deed and separate validity, recordability, and priority.
5. Assess grantor capacity, agency and power-of-attorney execution, entity execution, and spousal joinder requirements.
6. Evaluate whether granting language manifests a present intent to convey.
7. Apply the rules governing metes and bounds, plat, and government-survey descriptions and resolve conflicting calls.
8. Analyze delivery as a question of intent and evaluate conditional delivery, escrow, and relation back.
9. Compare general warranty, special warranty, quitclaim, and statutory short-form and special-purpose deeds.
10. Identify each covenant of title, classify it as present or future, and determine when it is breached.
11. Measure damages for breach of covenant and identify the customary limitation to consideration received.
12. Distinguish void from voidable deeds and predict the effect on a subsequent purchaser.
13. Apply estoppel by deed and after-acquired title, including their limits in the recording system.
14. Select the appropriate corrective mechanism for a defective or erroneous instrument.
15. Explain merger and identify obligations that survive the deed.

• Statute of Uses, 27 Hen. 8, c. 10 (1536)
• Statute of Enrolments, 27 Hen. 8, c. 16 (1536)
• An Act for Prevention of Frauds and Perjuries (Statute of Frauds), 29 Car. 2, c. 3 (1677)
• Real Property Act, 8 & 9 Vict. c. 106 (1845) (abolishing livery of seisin for most conveyances)
• Uniform Real Property Electronic Recording Act (Unif. L. Comm'n 2004, rev. 2005)
• Uniform Electronic Transactions Act §§ 7, 16 (Unif. L. Comm'n 1999)
• Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §§ 7001–7006
• Uniform Real Property Transfer on Death Act (Unif. L. Comm'n 2009)
• Restatement (Third) of Property: Wills and Other Donative Transfers §§ 6.1–6.2 (Am. L. Inst. 2003)
• Restatement (Third) of Property: Servitudes § 2.1 (Am. L. Inst. 2000)

• 2 William Blackstone, Commentaries on the Laws of England *295–*316 (1766)
• Sir Edward Coke, The First Part of the Institutes of the Laws of England (Coke on Littleton) (1628)
• 4 James Kent, Commentaries on American Law *440–*470 (1830)
• 2 Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I (2d ed. 1898)
• S. F. C. Milsom, Historical Foundations of the Common Law (2d ed. 1981)
• A. W. B. Simpson, A History of the Land Law (2d ed. 1986)
• John Baker, An Introduction to English Legal History (5th ed. 2019)
• 4 Herbert Thorndike Tiffany, The Law of Real Property §§ 966–1052 (3d ed.)
• 11 Richard R. Powell, Powell on Real Property ch. 81A, 81B
• 14 Thompson on Real Property (Thomas ed.) ch. 82
• 3 American Law of Property §§ 12.1–12.132 (A. James Casner ed. 1952)
• Patton and Palomar on Land Titles §§ 331–360 (3d ed.)

A deed is a written instrument, executed by a competent grantor and delivered with the intent that it operate presently, by which an estate or interest in real property is conveyed to an identifiable grantee. Each element of that definition does independent work. The writing satisfies modern conveyancing statutes. Execution authenticates the grantor's act. Present intent distinguishes conveyance from promise. Delivery makes the instrument operative. Identifiability of the grantee gives the conveyance an object.

The historical definition emphasized the seal: a deed was a writing sealed and delivered. The seal has been abolished or rendered inoperative by statute in most American jurisdictions, and its functions of authentication and deliberation are now performed chiefly by acknowledgment before a notary and by statutory execution formalities. What survives from the older definition is the emphasis on delivery, which remains the doctrinal center of the subject.

A deed is thus not merely evidence of a transaction. It is the transaction. Where a contract creates duties enforceable by an action, a deed effects a change in the state of title at the moment of its delivery, and the writing thereafter serves as the record of an accomplished legal fact.

The instruments that appear in a land file perform different legal functions, and confusion among them is a common source of error. A land-sale contract promises a future conveyance. A lease conveys a possessory estate for a term and retains a reversion. A mortgage or deed of trust conveys or encumbers an interest as security for an obligation. An easement instrument creates a nonpossessory right of use governed by Chapter 21. A declaration establishes a servitude regime for a common-interest community, treated in Chapter 24. An affidavit supplies evidence, not title. A will operates only at death and is ambulatory until then. A power of attorney confers authority to execute an instrument; it is not itself a conveyance. A title insurance policy is a contract of indemnity and conveys nothing. A transfer-on-death deed, authorized by statute in many States, is recorded during life but takes effect only at death and remains revocable.

Courts examine operative language and manifested intent rather than the caption. An instrument styled “Deed of Gift” that reserves to the maker the power to revoke and directs that it take effect at death may be tested as a testamentary instrument and fail for want of compliance with the wills act. Conversely, an instrument styled “Assignment” or “Release” may operate as a conveyance where it contains words of present grant, identifies the parties and the land, and is delivered.

The ordinary American transaction proceeds through negotiation, contract, an executory period, title examination and due diligence, closing, execution and delivery of the deed, transfer of the conveyed estate, recording, and post-closing title assurance. Each event is governed by a different body of law and fails in a different way.

Negotiation and contract are contractual events governed by Chapter 31. Execution, delivery, and acceptance are conveyancing events governed by this chapter. Recording and priority are governed by Part XI. Title insurance and marketable title acts are title-assurance devices governed by Part XII. Collapsing these categories produces the familiar errors: that an unrecorded deed passes nothing, that a notarized contract conveys land, or that a title policy operates as a covenant of title running with the land.

Medieval English conveyancing of a freehold was public, physical, and oral. Feoffment with livery of seisin required the feoffor and feoffee to come upon the land, or within view of it, and to perform a ceremony by which possession was delivered, often symbolized by handing over a clod of earth, a twig, or a key. The written charter that frequently accompanied the ceremony was evidence of the transaction rather than the transaction itself. Because the ceremony was public and the community remembered it, seisin could be proved without a register.

Livery could not create a future freehold. Because seisin had to pass at once and to someone, the medieval system produced the doctrinal constraints examined in Chapters 12 through 15, including the rule against springing and shifting interests at law and the destructibility of contingent remainders. The modern deed's capacity to create future interests directly is a consequence of the statutory reforms that displaced livery.

Conveyance to uses permitted landholders to separate legal and beneficial ownership, and with it to avoid feudal incidents and to achieve dispositions that livery could not accomplish. The Statute of Uses, 27 Hen. 8, c. 10 (1536), executed most passive uses by turning the beneficial interest into a legal one. Its unintended consequence was to make secret conveyancing possible: a bargain and sale raised a use in the bargainee, which the Statute executed into a legal estate without any public ceremony.

Parliament responded with the Statute of Enrolments, 27 Hen. 8, c. 16 (1536), requiring bargains and sales of freeholds to be enrolled. Conveyancers promptly evaded it through the lease and release, in which a bargain and sale of a one-year term (not within the Enrolments Act) was followed by a release of the reversion to the termor, who was already in possession. The covenant to stand seised achieved similar results within families upon consideration of blood or marriage. The lesson of the period, repeated later in the recording chapters, is that conveyancing formality and conveyancing ingenuity develop together.

The Statute of Frauds, 29 Car. 2, c. 3 (1677), required conveyances and assignments of interests in land to be in writing and signed, and it supplied the model for American conveyancing statutes. England completed the transition in the Real Property Act, 8 & 9 Vict. c. 106 (1845), which permitted corporeal hereditaments to pass by deed of grant and rendered livery unnecessary.

American law simplified further. Statutes in most States authorize short statutory forms in which a few words of grant carry, by force of the statute, the covenants and the estate that the older instruments spelled out at length. The result is that a modern American deed is often a single page whose legal content is supplied largely by statute and by the recording system, in contrast to the elaborate common-law conveyance recited in Coke and Blackstone. What has not changed is that the instrument must be delivered, and that the estate conveyed is the estate its operative words describe.

The traditional catalogue of requisites is: a competent grantor; an identifiable grantee; words of present grant; a sufficiently definite description of the property and interest conveyed; a writing; the grantor's signature where required by statute; delivery; and acceptance. Acknowledgment, witnesses, a seal, and consideration appear in many statutory forms but are, in most jurisdictions, not universal elements of validity between the parties.

The organizing distinction of this Part must remain explicit. Some requirements govern validity between grantor and grantee. Others govern recordability, that is, whether the recorder may accept and index the instrument. Others govern priority, that is, whether a recorded or unrecorded conveyance prevails against a third party under the applicable recording act. The same defect can be fatal in one column and immaterial in another.

Conveyances of interests in land ordinarily require a written instrument under state conveyancing statutes descended from the Statute of Frauds. The deed-writing requirement is distinct from the contract-writing requirement examined in Chapter 31: a memorandum sufficient to charge a party in an action for specific performance may be wholly insufficient as a conveyance, because it lacks words of grant, execution formalities, or delivery.

Signature is ordinarily required of the grantor. An agent may sign, but authority to convey land must generally itself be conferred in writing, and a power of attorney used for conveyancing is customarily recorded so that the chain of title shows the authority. Entities execute through authorized officers, managers, or trustees, and the instrument should recite the representative capacity and the authorizing action. A trustee conveys in that capacity and within the powers conferred by the trust instrument and applicable trust law.

Electronic signatures and electronic records are recognized for most transactions under state enactments of the Uniform Electronic Transactions Act and, at the federal level, under the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §§ 7001–7006, subject to state variations. Electronic recording is separately authorized by enactments of the Uniform Real Property Electronic Recording Act. Remote online notarization statutes have expanded rapidly and vary materially. Counsel must consult the enacting jurisdiction rather than assume uniformity.

It is not correct to say that every deed requires the grantee's signature. The grantee's execution may nonetheless be required where a statutory form so provides, where the grantee assumes an obligation such as a mortgage, where the deed imposes covenants or restrictions binding the grantee, or where local recording practice or transfer-tax administration requires it.

The common assertion that “a deed is invalid unless notarized” is, as a general proposition, incorrect. Acknowledgment is the grantor's declaration before an authorized officer that the instrument is the grantor's act; notarization is the officer's certification of that declaration. In most States these formalities go to recordability, to authentication, and to the evidentiary status of the instrument, not to its validity between grantor and grantee. Where a jurisdiction has made acknowledgment an element of validity for a particular class of conveyance, that is a statutory rule to be cited as such.

The practical consequence of a missing or defective acknowledgment is nevertheless serious. An unrecordable deed cannot be recorded; if erroneously recorded, a defectively acknowledged instrument may fail to impart constructive notice in some jurisdictions, leaving the grantee exposed to a subsequent bona fide purchaser under Part XI. Curative acts in many States validate certain defective acknowledgments after a period of years.

Signing, witnessing, acknowledgment, notarization, and recording are five separate acts. Signing is execution by the grantor. Witnessing is attestation by subscribing witnesses, required in a minority of States and for particular instruments. Acknowledgment and notarization concern official certification. Recording concerns the public record. A jurisdiction may require any combination of them, and the requirements for a deed may differ from those for a mortgage or a homestead conveyance within the same State.

Consideration performs a contract-formation function; it does not perform a conveyancing function. A deed validly executed and delivered ordinarily operates even though gratuitous, and gift deeds are a recognized and common form of conveyance. The familiar recital of “Ten Dollars and other good and valuable consideration” does not create validity, and no magic inheres in the sum recited.

Consideration nonetheless matters in four practical respects. It may support the deed's characterization for transfer-tax purposes, where statutes require declaration of true consideration. It bears on the grantee's status as a bona fide purchaser under the recording acts, since a donee is generally not protected as a purchaser for value. It bears on avoidance of the conveyance by creditors under fraudulent-transfer law. And a recital of consideration may operate evidentially, and in some jurisdictions as an estoppel, against the grantor.

The grantor must have the capacity to convey and must own or have power over the interest purported to be conveyed. Minority, adjudicated incapacity, and severe cognitive impairment affect capacity; the standard is ordinarily whether the grantor understood the nature and effect of the act. Conveyances by fiduciaries, by conservators, and by personal representatives depend upon the powers conferred and, in many cases, upon court authorization. Marital-property and homestead statutes in numerous States require spousal joinder, and a conveyance without it may be void, voidable, or ineffective as to the homestead interest depending on the statute.

The grantee must be identifiable. A conveyance to a person who does not exist, or to a corporation never formed, ordinarily fails, though courts have found sufficient identification where the description permits ascertainment, as in a conveyance to “the children of A living at my death.” A deed with the grantee's name left blank raises the difficult question of implied authority to fill it in, on which jurisdictions divide.

Words of present grant are the operative core. “I hereby grant, bargain, sell and convey” manifests present operation. “I promise to convey,” “I intend that upon my death this property shall pass,” or “this instrument shall become effective when the purchase price is paid” each raise the question whether the instrument is a conveyance at all, a contract, or an attempted testamentary disposition. Courts read the instrument as a whole and prefer a construction that gives it legal effect consistent with the manifested intent.

A deed must describe the land with sufficient certainty, or supply the means by which it may be identified. Three description systems predominate in the United States. Metes and bounds descriptions trace the perimeter by courses, distances, monuments, and calls, beginning and ending at a point of beginning. Plat or subdivision descriptions incorporate a recorded map by lot, block, and plat reference. Government survey descriptions, used in the public-land States, identify land by section, township, and range with aliquot subdivisions.

Street addresses and tax-parcel numbers are convenient but are ordinarily insufficient alone in careful practice, though many jurisdictions will sustain a deed identified by address where the land can be located with certainty. The governing question is not the elegance of the description but whether a surveyor, using the instrument and admissible extrinsic evidence, can locate the land.

A latent ambiguity, one that appears only when the description is applied to the ground, may generally be resolved by extrinsic evidence. A patent ambiguity, apparent on the face of the instrument, is treated more restrictively in many jurisdictions, and a description so uncertain that no land can be identified renders the deed void for indefiniteness.

Where calls conflict, courts apply a traditional hierarchy of preference: natural monuments, then artificial monuments, then courses (directions), then distances, then quantity or acreage, with express intent controlling throughout. The hierarchy is a rule of construction rather than a rule of law, and it yields where the instrument shows a contrary intention.

Boundary questions interact with the doctrines of Chapters 6 and 20. A description error may be cured in fact by adverse possession, by acquiescence in a practical location, by an agreed boundary, or by estoppel; and where the parties' true agreement differs from the writing, reformation is available on clear and convincing proof of mutual mistake or of unilateral mistake with inequitable conduct.

The deed conveys what its granting and habendum language describe. Absent contrary language, and under statutes in force in nearly every State, a conveyance is presumed to pass the grantor's entire interest, so that words of inheritance are no longer required to create a fee simple. The instrument may nonetheless convey a lesser estate, a defeasible estate under Chapter 10, a life estate under Chapter 11, or a future interest under Chapters 13 and 14.

An exception withholds from the grant a portion of the land or an existing interest, which therefore never passes. A reservation creates in the grantor a new interest, historically limited to interests such as a life estate or an easement, though modern authority is more flexible. A deed may also convey subject to existing encumbrances, which affects the covenants of title discussed in Part VII and the merger analysis in Part X. Mineral, timber, water, and air rights may be severed, and the omission of an intended severance is a frequent source of corrective instruments.

Delivery is the act or manifestation by which the grantor evinces an intent that the deed become presently operative as a conveyance. It is a question of intent, and physical transfer is evidence of intent rather than the legal test. A deed handed to a grantee with words showing that it is not to operate until some later event may not be delivered; a deed never physically moved from the grantor's desk may be delivered if the grantor's words and conduct show the requisite intent and relinquishment of control.

Retention of control is the classic negation of delivery. A grantor who executes a deed, places it in a safe-deposit box to which only the grantor has access, and retains the power to destroy it has ordinarily not delivered. Conversely, an unconditional handing over to the grantee, or to a third person for the grantee's benefit without reservation of recall, ordinarily establishes delivery.

Several evidentiary presumptions structure litigation. Recording raises a rebuttable presumption of delivery. Possession of the deed by the grantee raises a rebuttable presumption of delivery. Possession by the grantor after execution raises a presumption of nondelivery. Each presumption yields to proof, and the ultimate question remains the grantor's intent at the operative moment.

A conditional delivery directly to the grantee presents a recurring trap. The prevailing rule at common law is that where a deed is handed to the grantee with an oral condition, the condition is disregarded and the delivery is absolute, on the theory that parol evidence may not contradict the operative effect of a delivered instrument. Jurisdictions differ, and some admit the evidence to negate delivery altogether; the distinction between proving no delivery and proving a delivery upon condition is decisive and must be pleaded with care.

Deeds intended to operate at the grantor's death raise the boundary with the wills act. An instrument delivered with the reservation of a power to revoke and with the intent that no interest pass until death is ordinarily testamentary and fails unless executed with testamentary formalities. An instrument conveying a remainder and reserving a life estate is, by contrast, a present conveyance of a future interest and is valid, because something passes at once. Statutes enacting the Uniform Real Property Transfer on Death Act now supply a nontestamentary alternative in many States, with recording during life and revocability until death.

Acceptance by the grantee is required to complete a conveyance, for the law does not force title upon an unwilling recipient. Where the conveyance is beneficial, acceptance is ordinarily presumed, and the presumption is strong in the case of infants and other persons under disability. Acceptance may be manifested by taking possession, by recording, by paying taxes, by mortgaging, or by any conduct treating the estate as one's own.

The presumption may be rebutted where the conveyance is burdensome, as with contaminated land or property subject to onerous assessments. A grantee may disclaim, and statutes commonly prescribe the form and timing of a disclaimer and provide that the disclaimed interest passes as if the disclaimant had predeceased the transfer. The date of acceptance can matter for priority, for tax years, and for liability arising between delivery and acceptance.

In a true escrow the grantor deposits an executed deed with a depositary under instructions to deliver it to the grantee upon the occurrence of a stated condition, ordinarily payment of the price. The essential feature is that the grantor surrenders the power to recall the instrument; a deposit revocable at the grantor's whim is not an escrow but a mere agency, and the depositary's delivery in that case may be ineffective.

Upon performance of the condition the deed becomes operative. Where justice requires, the doctrine of relation back treats title as having passed at the date of deposit, protecting the transaction against the grantor's intervening death, incapacity, or, in many jurisdictions, intervening liens, although the doctrine's reach against bona fide purchasers is limited and jurisdiction-specific. Wrongful delivery by the depositary in breach of instructions ordinarily passes no title as against the grantor, though estoppel and the recording acts may protect a subsequent purchaser for value without notice.

Commercial escrow practice, in which a title company holds funds and documents and disburses at closing, layers contractual and fiduciary duties over this common-law structure. The escrow agreement, not intuition, defines the depositary's authority.

American deeds are classified by the assurance of title they give, not by the quantum of estate they convey. A general warranty deed warrants against all defects in title, whenever arising, including those created before the grantor acquired the land. A special or limited warranty deed warrants only against defects arising by, through, or under the grantor. A quitclaim deed conveys whatever interest the grantor has, if any, and warrants nothing.

It follows that a quitclaim deed from an owner of a fee simple absolute conveys a fee simple absolute. The difference between it and a warranty deed lies entirely in the grantee's recourse if the title proves defective. It also follows that a general warranty deed from a grantor who owns nothing conveys nothing at the moment of delivery, though it may later carry after-acquired title by estoppel under Part VIII and will support an immediate action for breach of the covenant of seisin.

Statutory short-form deeds in many States compress these instruments into a few operative words, with the statute supplying the covenants. Special-purpose deeds serve narrower functions: a bargain and sale deed, a grant deed with statutorily implied covenants, a trustee's or executor's deed conveying in a representative capacity, a sheriff's or tax deed issued through a judicial or administrative process, a correction deed, and a deed in lieu of foreclosure. Each carries its own customary assurances, and the grantee should not assume warranties that the instrument and statute do not supply.

The traditional English covenants, carried into American law, are six. The covenant of seisin warrants that the grantor is seised of the estate purported to be conveyed. The covenant of the right to convey warrants the grantor's power to make the conveyance. The covenant against encumbrances warrants that no mortgages, liens, easements, servitudes, or similar burdens exist other than those excepted. The covenant of quiet enjoyment warrants that the grantee will not be disturbed in possession by one holding paramount title. The covenant of warranty obligates the grantor to defend against lawful claims and to compensate for loss upon eviction. The covenant of further assurances obligates the grantor to execute such additional instruments as may be necessary to perfect the grantee's title.

The first three are present covenants: if breached at all, they are breached at the instant of delivery, because they speak to the state of title at that moment. The last three are future covenants: they are prospective assurances breached only when the grantee is actually or constructively evicted, or suffers the equivalent disturbance by paramount title.

The present-future distinction determines who may sue. Because a present covenant is breached at delivery, the majority rule treats the resulting claim as a chose in action personal to the original grantee, which does not pass to remote grantees by a subsequent conveyance of the land; a minority of jurisdictions permit assignment, expressly or by implication, and a few treat the covenant as running. Future covenants, being unbreached at delivery, run with the estate and may be enforced by a remote grantee against any prior covenanting grantor within the chain.

The consequence is a familiar examination pattern. Where a defect existed at the time of a conveyance three grantors back and the current owner is evicted, the current owner ordinarily cannot sue that grantor on the covenant of seisin, because it was breached long ago in favor of someone else, but may sue on the covenant of warranty, which was breached only now.

Constructive eviction in this context does not mean the landlord-tenant doctrine of Chapter 26. It means that the covenantee has yielded to a lawful paramount claim, has purchased the outstanding title in reasonable settlement, or has been ousted by judgment, so that the assurance of undisturbed enjoyment has failed in substance.

Damages for breach of the covenant of seisin are ordinarily the consideration received by the covenanting grantor, with interest, where title wholly fails, and a proportionate part where it fails in part. Damages for breach of the covenant against encumbrances are the cost of removing a removable encumbrance, or the diminution in value caused by an irremovable one, subject to the same ceiling. Damages on the future covenants are measured by the loss upon eviction, again ordinarily capped at the consideration the defendant grantor received, plus in many jurisdictions the costs of defending the paramount claim.

The consideration-received ceiling is the doctrine's most important practical limitation. A remote grantee who paid a modern price may recover only the modest sum a distant grantor received decades earlier. That limitation, together with the running rules and the limitations periods, explains the twentieth-century migration of title protection from covenants to title insurance, examined in Part XII.

A grantee who is sued on a paramount claim should give the covenanting grantor timely notice and an opportunity to defend, a practice known as vouching in. Failure to do so does not always bar recovery, but it commonly shifts to the grantee the burden of proving the paramount title and the reasonableness of any settlement.

A void deed is a nullity: it conveys nothing and cannot be made good by transfer to an innocent purchaser. Forgery is the paradigm, and to it are commonly added deeds executed by a person wholly without capacity, deeds never delivered, and deeds forged in a material alteration made before delivery. A voidable deed is effective until avoided: it passes title subject to the injured party's right of rescission. Fraud in the inducement, duress, undue influence, and, in most jurisdictions, conveyance by a minor produce voidable rather than void instruments.

The distinction is decisive for third parties. If A's signature is forged and the forger conveys to B, a bona fide purchaser, B takes nothing, because the forger had nothing to give. If A is tricked into signing a genuine deed and conveys to the fraudfeasor, who conveys to B, a bona fide purchaser for value without notice, B ordinarily prevails, and A is relegated to a personal claim against the wrongdoer. The rationale is the familiar allocation of loss to the party who, however innocently, enabled the wrong.

Fraud in the factum, in which the grantor is deceived as to the very nature of the instrument signed, is generally treated as producing a void deed, aligning it with forgery. Materially altering a deed after delivery does not divest the grantee of title already conveyed, though it may affect the instrument's evidentiary value and expose the alterer to liability.

Where a grantor purports to convey an estate the grantor does not then own, and afterwards acquires that estate, the doctrine of estoppel by deed, also called after-acquired title, ordinarily passes the later-acquired interest to the grantee automatically. The doctrine rests on the grantor's warranty or representation of title and on the futility of permitting the grantor to reclaim what the grantor has already purported to convey.

Two limits deserve emphasis. First, the doctrine ordinarily applies to conveyances containing warranties or an affirmative representation of title, and generally not to a plain quitclaim, which by its terms conveys only what the grantor then has. Second, the doctrine's effect against third parties depends upon the recording system: a deed recorded before the grantor acquired title is, in many jurisdictions, outside the chain of title, so that a subsequent bona fide purchaser from the now-titled grantor may prevail over the earlier grantee notwithstanding the estoppel. That interaction is developed in Part XI and is noted here only to prevent the doctrine from being stated too broadly.

An error in an executed and delivered deed is corrected in one of three ways. Reformation is a suit in equity to conform the instrument to the parties' actual agreement, available on clear and convincing evidence of mutual mistake, or of unilateral mistake coupled with fraud or inequitable conduct, and subject to the rights of intervening bona fide purchasers. A corrective or confirmatory deed is a new instrument executed by the original parties correcting a scrivener's error and recorded in the chain; it is the ordinary conveyancing remedy for a misspelled name, an omitted marital status, or a transposed digit in a call. Curative statutes validate specified classes of defective instruments, typically defective acknowledgments or witnessing, after the lapse of a stated period.

None of these devices permits unilateral alteration of a recorded instrument. Where the parties cannot cooperate, or where the defect goes to the identity of the land conveyed rather than to its description, a quiet-title action under state practice is the appropriate vehicle, and the resulting judgment is recorded as a muniment of title.

Recording neither creates nor perfects the conveyance between grantor and grantee. It places the instrument in a public index so that subsequent takers may discover it, and it invokes the priority rules of the applicable recording act. An unrecorded but delivered deed passes title; the grantee's risk is that a subsequent purchaser for value without notice may, under a notice or race-notice statute, defeat that title.

Because recordability turns on execution formalities, the conveyancing lawyer's checklist for a deed is longer than the list of validity requirements. Correct legal description, proper acknowledgment, statutory margins and formatting, transfer-tax declarations, grantee address for tax notices, and, in electronic-recording jurisdictions, conformity with the applicable submission standards are all conditions of acceptance by the recorder.

This chapter does not develop the recording acts, chain of title, wild deeds, the shelter rule, marketable title acts, or title insurance. Those subjects belong to Parts XI and XII and are cross-referenced here only so far as necessary to prevent the misstatements that arise when deed doctrine is taught in isolation.

At a conventional closing the seller executes the deed, the settlement agent verifies identity and authority, the buyer's funds are disbursed, and the deed is delivered and then transmitted for recording, often within hours by electronic submission. Where the transaction is financed, the deed and the security instrument are recorded in a sequence that establishes the lender's intended priority. Where a fiduciary or entity conveys, the file should include the authorizing instrument, the trust certification, the corporate resolution, or the letters of authority.

The recurring practice failures in this area are predictable: an unrecorded power of attorney, an omitted spousal joinder in a homestead State, a description copied from a tax bill rather than from the prior deed, a grantee name that does not match the buyer's vesting instructions, a deed delivered before a condition of the escrow agreement has been satisfied, and a corrective deed executed by only one of two grantors. Each of them is a defect in this chapter's doctrine, not in the recording system, and each is preventable by attending to the requisites set out in Parts III through V.

The doctrine of merger by deed, introduced at the close of Chapter 31, provides that upon acceptance of the deed the contract's obligations respecting title are ordinarily discharged and the grantee's rights as to title are measured by the deed. The buyer who accepted a quitclaim deed after contracting for marketable title has, under the traditional rule, lost the contractual title claim and must rely upon such covenants as the deed contains.

Merger is subject to substantial exceptions. Collateral obligations not addressed by the deed, such as promises concerning repairs, possession, prorations, or personal property, ordinarily survive. Fraud and mutual mistake are not extinguished by acceptance. Contract terms expressly stated to survive closing survive by their own force, and careful drafting now routinely so provides. Statutory duties, such as disclosure obligations, are not discharged by merger where the statute so provides.

The analytic sequence is therefore: identify the obligation; ask whether it concerns title or is collateral; ask whether the contract contains a survival clause; and only then apply merger. Reversing that sequence produces the mistaken conclusion that closing extinguishes everything.

The following questions, taken in order, resolve the great majority of deed problems.

1. Is the instrument in question a deed, or is it a contract, lease, security instrument, or testamentary writing?
2. Does the instrument contain words of present grant?
3. Was the grantor competent, and did the grantor hold or have power over the interest described?
4. Is the grantee identified or identifiable?
5. Is the description sufficient to locate the land, and do any calls conflict?
6. Was the instrument signed by the grantor, or by an agent with written authority?
7. Was spousal joinder or other statutory joinder required, and was it obtained?
8. Was the deed delivered, that is, did the grantor intend it to operate presently and relinquish control?
9. If a third person held the deed, was the arrangement a true escrow, and was the condition performed?
10. Did the grantee accept, and is the presumption of acceptance rebutted?
11. What estate or interest does the deed convey, and what is excepted or reserved?
12. What covenants of title, if any, does the deed contain, and are they general or limited?
13. If a covenant is at issue, is it present or future, when was it breached, and who may sue?
14. What damages are recoverable, and is the consideration-received ceiling controlling?
15. Is the deed void or voidable, and what follows for a subsequent purchaser?
16. Did the grantor later acquire title, and does estoppel by deed apply?
17. Is reformation, a corrective deed, a curative statute, or a quiet-title action the appropriate remedy?
18. Which contractual obligations merged into the deed, and which survive?
19. Was the deed recordable, and was it recorded, and with what consequences under Part XI?

Part X has treated the two instruments by which land changes hands: the contract that obliges and the deed that conveys. Both operate between the parties. Neither answers the question that dominates modern conveyancing practice, which is what happens when two claimants trace title to the same land from a common source.

Part XI takes up that question. It examines the recording acts and their three families, race, notice, and race-notice; the concept of the bona fide purchaser; constructive, actual, and inquiry notice; the chain of title and the problems of wild deeds, late-recorded deeds, and deeds recorded before the grantor acquired title; the shelter rule; and the mechanics of indexing on which the whole system depends. The reader should carry forward from this chapter the discipline of asking, first, whether a valid conveyance occurred at all, and only then, whose valid conveyance prevails.

1. “A deed is not valid until it is recorded.” Recording concerns notice and priority; a delivered deed conveys title between the parties without it.
2. “A deed is invalid unless notarized.” In most States acknowledgment goes to recordability and authentication, not validity, unless a statute makes it an element.
3. “The contract of sale transfers ownership.” It creates obligations; the deed conveys.
4. “Signing the deed transfers title.” Execution is not delivery; the conveyance occurs when the grantor intends the instrument to operate presently.
5. “Delivery means physically handing over the paper.” Delivery is a question of intent, of which physical transfer is only evidence.
6. “The grantee must sign the deed.” Ordinarily not, though statutes, assumptions, or covenants may require it.
7. “A deed must recite real consideration to be valid.” A gift deed validly delivered conveys; consideration matters for tax, creditor, and purchaser-status questions.
8. “$1 and other valuable consideration makes any deed enforceable.” The recital is conventional and confers no validating magic.
9. “A quitclaim deed conveys less land than a warranty deed.” It conveys the same estate the grantor holds; it merely warrants nothing.
10. “A warranty deed guarantees good title.” It gives contractual covenants and a damages remedy, ordinarily capped at the consideration received; it does not create title.
11. “A general warranty deed protects against everything.” It excepts what it says it excepts, and it does not insure against uninsurable risks or non-title defects.
12. “All six covenants are breached at the same time.” Present covenants are breached, if at all, at delivery; future covenants only upon eviction.
13. “Remote grantees can always sue on every covenant.” In most jurisdictions present covenants do not run; future covenants do.
14. “The limitations period runs from discovery of the defect.” For present covenants it ordinarily runs from delivery, whether or not the defect was then known.
15. “Damages equal the present market value of the land.” Recovery is customarily limited to the consideration the covenanting grantor received, with interest and defense costs where allowed.
16. “Title insurance is a covenant of title.” It is a contract of indemnity with its own exclusions and conditions, not a warranty running with the land.
17. “A forged deed can be cured by a good-faith purchase.” Forgery renders the deed void; a bona fide purchaser takes nothing.
18. “Any fraud makes a deed void.” Fraud in the inducement makes it voidable; fraud in the factum is generally treated as void.
19. “Recording a deed proves it was delivered.” Recording raises only a rebuttable presumption of delivery.
20. “A deed found in the grantee's possession must have been delivered.” Possession creates a presumption that may be rebutted by evidence of the grantor's contrary intent.
21. “An oral condition attached at handing over always controls.” Delivered directly to the grantee, an oral condition is commonly disregarded and the delivery treated as absolute.
22. “Any third-party holding is an escrow.” A true escrow requires that the grantor surrender the power to recall the instrument.
23. “A deed effective at death is simply a will.” A present conveyance of a future interest with a reserved life estate is valid; only an instrument passing nothing until death is testamentary.
24. “A transfer-on-death deed conveys now.” It is revocable and takes effect only at death under the enacting statute.
25. “The caption controls the instrument's effect.” Operative language and intent control.
26. “A street address is always a sufficient description.” Sufficiency depends on whether the land can be located with certainty; careful practice uses the record description.
27. “Acreage recitals control boundary disputes.” Quantity ranks last among conflicting calls.
28. “The deed can be corrected by crossing out the error.” Alteration after delivery does not divest title; reformation or a corrective deed is required.
29. “After-acquired title always protects the earlier grantee.” Estoppel by deed binds the grantor but may fail against a later purchaser because of chain-of-title rules.
30. “Quitclaim deeds carry after-acquired title.” Ordinarily they do not, because they contain no representation of title.
31. “Closing extinguishes every promise in the contract.” Merger reaches title obligations; collateral promises, survival clauses, fraud, and statutory duties persist.
32. “A power of attorney conveys land.” It confers authority; the attorney-in-fact must execute a deed, and the power is ordinarily recorded.

A deed is a written instrument by which a competent grantor, with present intent, conveys an identified estate to an identifiable grantee, and it becomes operative upon delivery and acceptance. Its history runs from the public ceremony of livery of seisin, through the Statute of Uses and the Statute of Enrolments, to the Statute of Frauds and the modern statutory short forms, a movement from ritual possession to written conveyancing.

Three inquiries must be kept apart at every step. Validity between the parties depends on writing, capacity, granting language, description, signature, delivery, and acceptance. Recordability depends on execution formalities such as acknowledgment and statutory formatting. Priority against third parties depends on the recording act. Delivery, understood as the grantor's intent that the instrument operate presently coupled with relinquishment of control, is the doctrinal center of the chapter, and escrow is the disciplined method of conditioning it.

Assurance of title is supplied by covenants, which vary with the type of deed. The six traditional covenants divide into present covenants breached at delivery and future covenants breached upon eviction, and that division determines limitations, running, and standing. Recovery is customarily capped at the consideration the covenanting grantor received, a limitation that explains the modern dominance of title insurance.

Defects are classified as void or voidable, and that classification decides the fate of a subsequent bona fide purchaser. Estoppel by deed passes after-acquired title to a warranty grantee, subject to chain-of-title limits. Errors are corrected by reformation, corrective deed, curative statute, or quiet-title action, never by unilateral alteration. Merger discharges title obligations of the contract while leaving collateral promises, survival clauses, fraud, and statutory duties intact.

Part X closes here. Chapter 33 opens Part XI with the recording system, which does not determine whether a conveyance occurred but decides which of two valid-looking conveyances prevails.

• 4 Herbert Thorndike Tiffany, The Law of Real Property §§ 966–1052 (3d ed.) (deeds, delivery, and covenants of title)
• 11 Richard R. Powell, Powell on Real Property chs. 81A–81B (execution, delivery, and warranties)
• 3 American Law of Property §§ 12.1–12.132 (A. James Casner ed. 1952)
• Patton and Palomar on Land Titles §§ 331–360 (3d ed.) (conveyancing practice and curative devices)
• A. W. B. Simpson, A History of the Land Law chs. 5–7 (2d ed. 1986) (uses, the Statute of Uses, and conveyancing evasion)
• John Baker, An Introduction to English Legal History ch. 14 (5th ed. 2019)
• Restatement (Third) of Property: Wills and Other Donative Transfers §§ 6.1–6.2 (Am. L. Inst. 2003) (gratuitous transfers of land)
• Uniform Real Property Transfer on Death Act (Unif. L. Comm'n 2009) and the enacting state statutes