personal property” may be recorded if it is properly acknowledged. The first legal hurdle to recordation is thus whether the instrument concerns or affects real property. Do heirship affidavits concern real property? Yes, see Turrentine v. Lasane, 389 S.W.2d 336. 337 (Tex.Civ.App. —Waco 1965) Mandamus . How about affidavits of adverse possession? Probably. See Stone v. Brown , 621 S.W.2d 182 (Tex. Civ.App. —Texarkana 1981) Trespass to try title . It will be up to the examining attorney to initially determine if an affidavit sought to be recorded concerns real property and thus meets statutory compliance. Although not discussed here, it should be noted that there are other statutes which authorize the recording of specific instruments which may/should be consulted prior to sending a document to record. If a document was not entitled to be recorded, but is accepted by the county clerk and recorded, its recordation is NOT constructive notice to third persons. Sweeney v. Vasquez, 229 S.W.2d 96 (Tex.Civ.App. —San Antonio 1950) Appeal from instructed verdict Regrettably, whether a document was legally entitled to recordation and thus stands as notice to third parties (in the chain of title) is only conclusively determined when that document is offered into evidence as such in a legal proceeding dealing with title to the lands under examination. It is absolutely incumbent on the examining attorney to confirm, prior to recordation, that the affidavit sought to be recorded contains a proper acknowledgment. Without a proper acknowledgment, any instrument concerning real property may not be recorded. Onwuteaka v. Cohen, 846 S.W.2d 889, 894 (Tex.App. —Houston [1 Dist.] 1993) Sufficiency of evidence TEX. PROP.CODE ANN. § 12.001 (b) (Vernon 1984 and Supp.1997). As stated by the court in Boswell v. Farm & Home Savings Ass’n, “ An instrument that is properly recorded in the proper county is notice to all persons of the existence of the instrument. TEX.PROP.CODE ANN. § 13.002 (Vernon 1987). However, an instrument conveying real property is not even eligible
for recording unless it is signed and acknowledged by the grantor in the presence of two or more subscribing witnesses or a notary. TEX.PROP.CODE ANN. § 12.001(b) (Vernon Supp.1994).” 894 S.W.2d 761, 766- 67 (Tex.App.--Fort Worth 1994, writ denied). The general purpose of an acknowledgment is to authenticate an instrument as being the act of the person executing the instrument. Onwuteaka v. Cohen, 846 S.W.2d 889, 895 (Tex.App.--Houston [1st Dist.] 1993, writ denied), citing Punchard v. Masterson, 100 Tex. 479, 101 S.W. 204, 205 (1907); Shelton v. Swift Motors, Inc., 674 S.W.2d 337, 342 (Tex. App.--San Antonio 1984, writ ref’d n.r.e.). In order to be recorded in the real property records, an acknowledgment is necessary. Cohen, 846 S.W.2d at 895, citing TEX. PROP. CODE ANN. § 12.001 (Vernon Supp.1997). A contract for the sale and purchase of real estate which is not acknowledged by the grantor is not notice to subsequent purchasers , though it be acknowledged by the purchaser and recorded. Sweeney v. Vasquez, 229 S.W.2d 96, 97 (Tex.Civ.App.--San Antonio 1950, writ ref’d); Grossman v. Jones, 157 S.W.2d 448 (Tex.Civ.App.--San Antonio 1941, writ ref’d w.o.m.). Sanchez v. Telles, 960 S.W.2d 762, 767 (Tex.App. —El Paso 1997) (emphasis added) Summary Judgment If properly acknowledged and pertaining to and concerning real property, an affidavit will be entitled to recordation and will stand as constructive notice to third parties (in the chain of title). Sanchez v. Telles, 960 S.W.2d 762, 767 (Tex. App. —El Paso 1997) (emphasis added) Summary Judgment 2. How records are indexed The following is a short note on the filing of affidavits not only as constructive notice to third parties but also as a help or assistance for future title examiners in curing the problem(s) addressed by the affidavit. Texas county clerks have two indexes in which they note the filing of
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G r o w t h T h r o u g h E d u c a t i o n - A p r i l / M a y / J u n e 2 0 2 1
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