knows the facts and conclusions made in the main affidavit to be true and correct. Without a full rendition of the facts and circumstances of why and how the affiant knows the facts contained in the main affidavit to be true, the corroborating affidavit is of no import and will not serve to make admissible the affidavit of the interested party. More importantly, if the party giving the corroborating affidavit is familiar with the facts such that he can confirm the main affidavit, why is not that party giving the main affidavit to the exclusion of the interested party? Over the years it has become apparent to the author that, in many instances, only a family member has the knowledge to be able to give an affidavit on family history. There simply are no third parties available with the requisite family knowledge. Given that the affidavit will be taken from a potentially interested party, and that no corroborating affidavit will be available, does the affidavit have any use? Of course it does. However, that use is only to answer the immediate question raised by the examining attorney concerning family history. Even when used for that purpose, it is also only as accurate as the facts contained in it. That is, ultimately the client will be faced with the business decision of whether or not to accept the facts as set forth in the affidavit as being accurately stated. No affidavit is any better than the truth of the facts sworn to be the affiant. Further, the affidavit will probably not be admissible if the question of heirship has to be tried. Or can it? If there is a passage of more than five years after the filing of the affidavit in the pertinent deed records in “ any county in this state in which such real or personal property is located at the time the suit is instituted, or in the deed records of any county of this state in which the decedent had his domicile or fixed place of residence at the time of his death ...”, the affidavit may very well stand as prima facie evidence of the facts stated therein. § 52. Recorded Instruments As Prima Facie Evidence, Texas Probate Code. See also Wood v. Paulus, 524 S.W.2d 749 (Tex.Civ.App. — Corpus Christi 1975) Directed Verdict I. How Does an Affidavit “Cure” Title? The author debated where this part of the article should be placed. The title of this article is “Curing Title With
Affidavits”. It fits quite nicely at the beginning of the article but, after reading, could easily negate the reader’s interest in understanding the uses and pitfalls of affidavits. An affidavit is, in the end, the client and title examiner’s last hope of bringing into focus the facts and circumstances surrounding a title requirement made in a title opinion. Most title examiners assume (often with the dreaded negative result of “assuming”) that the abstractor has looked into all possible documents of record or otherwise available in an attempt to find out the pertinent facts and circumstances raised by the title examiner. The affidavit obtained from a person with knowledge of the important facts and circumstances can rise no higher than the true knowledge of the affiant coupled with their interest in revealing the full and complete truth. It is the author’s opinion that no affidavit “cures” a title problem. It presents to the examiner a set of facts, which if true and accurate, may be made the basis of advice from the examiner that the particular title requirement is deemed satisfied. However, the decision to accept the facts as accurate is one to be made NOT by the examiner but by the client. It may be, depending on the significance of the title requirement, a very serious risk decision which could have dire consequences if the affidavit is not correct. The author has seen numerous affidavits which, in light of subsequent litigation, have proven to be totally incorrect but which were relied on when “curing” the title to the drillsite tract. Juries, the penalty of actual perjury, a judge’s ruling, the availability of additional persons with knowledge etc. all play a role where the facts as initially set forth in an affidavit are distinguished or overruled. In the end, affidavits are an aid to the title examiner/ client in evaluating title requirements. There is only one “cure” - trespass to try title litigation. Anything short of a trespass to try title case places risk on the client that the facts set out in the affidavit are not correct. It is appropriate, in the author’s opinion, to always place that risk in writing in any supplemental title opinion which analyzes the submitted affidavit(s) and renders a decision of whether a particular title requirement has been satisfied.
II. Selected Affidavits and Their Title Requirement Antecedents
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N a t i o n a l A s s o c i a t i o n o f D i v i s i o n O r d e r A n a l y s t s
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