So You Write Title Opinions? Have You Read, Understood and Incorporated Into Your Title Opinions the Case of:
Texas
Broadway National Bank, Bank of the Mary Frances Evers Trust, Et Al. v. Yates Energy Corporation ET AL., 631 S.W.3d 16 (Tex.2021) By Terry E. Hogwood, Attorney
to reconcile the rules of statutory interpretation of the Correction Deed Statutes found in the Court’s opinion with present run sheet/title examination procedures in an attempt to formulate a new set of title examination procedures that will allow a landman/attorney to be able to locate a correction deed filed out of time. The Court had the advantage in Broadway of knowing all of the title facts. A title examiner attempting to build an accurate run sheet which fully locates all correction deeds pertaining to the lands at issue will not know any such title facts. These title facts will have to be located in the pertinent county deed records and made a part of a completed run sheet. The question being explored in this article is how and at what cost will the new title examination procedures regarding correction deeds lead to increased title examination costs for client companies. Title Opinions - Title opinions are based on run sheets (defined as (i) a compilation of all instruments filed in the pertinent county deed records; (ii) commencing with the sovereignty of the soil down to the close of the examination period; (iii) put in file date order [as distinguished from date of instrument order] and (iv) which is represented by its compiler to be a complete listing of all title related documents for a specific tract of land). The run sheet is examined by a by a competent title attorney and, after such examination, should yield the present status/ownership of the fee simple title to at least the mineral estate of the lands at issue. The ownership status of the lands under examination is premised on all instruments filed of record in the county deed records through the closing date of the run sheet as well as all title related problems raised by such examination.
“ Using similar reasoning, courts have applied the discovery rule to a property owner’s fraudulent- lien claims despite the lien’s filing in the property records. E.g., Vanderbilt Mortg. & Fin., Inc. v. Flores, 692 F.3d 358, 369-70 (5th Cir. 2012) (applying Texas law). Such an injury is nevertheless inherently undiscoverable where the property owner has “no reason ... to believe that any adverse claim has been made on his property, and no reason to be checking regularly to see whether such a filing has been made.” Id. at 368. This is consistent with the well-settled principle that one who “already owns the land ... is not required to search the records every morning in order to ascertain if something has happened that affects his interests or deprives him of his title.” Cox v. Clay, 237 S.W.2d 798, 804 (Tex.Civ.App.— Amarillo 1950, writ ref’d n.r.e.); cf. Leonard v. Benford Lumber Co., 110 Tex. 83, 216 S.W. 382, 384 (1919) (noting that “registration of an instrument carries notice of its contents only to those bound to search for it, among whom are subsequent purchasers” (emphasis added) . Archer v. Tregellas, 566 S.W.3d 281, 291 (Tex. 2018). Interesting quote, is it not? It is unless you have read the Broadway National Bank Case (“ Broadway ”). The following is an analysis of the factual underpinnings of the case, examples of some of the title examination procedures which could be impacted, how abstracts of title are prepared, examined and how title opinions may have to be written post Broadway . As poorly written/reasoned as this case is, this is only the first of what the author expects will be several articles on the impact of this case on title examination in Texas.
It must be remembered throughout the reading of this article that the following analysis is an attempt
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N at i onal A ssociation of D i v i s i on O rder A nalys t s
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