Request By:
Hon. Alfred S. Joseph, III
Middleton & Reutlinger
501 South Second Street
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Asst. Deputy Attorney General
You raise a question about the recording of a deed. The essential facts and question were stated as follows:
"I seek your opinion as to the following fact situation: A owns Blackacre and wishes to convey same to B by general warranty deed. The only description A proposes to use in such deed is the date and recording information (deed book, deed page and county) relating to the deed by which A took title to Blackacre. I have encountered some resistance from county clerks in recording a deed such as that I describe: they have taken the view that the reference to the date and recording information is not a sufficient description to allow recording. Specifically, my question is whether a deed containing only the above referenced information (and no metes and bounds) is in valid form for recording, and whether it must be recorded by a clerk, assuming all other statutory requirements are fulfilled."
In 23 Am Jur. 2d, Deeds, § 220, pp. 263-264, we find this about the requirement for a sufficient description in a deed:
"In is essential, in order that a deed may be operative as a legal conveyance, that the land granted and intended to be conveyed be described with sufficient definiteness and certainty to locate and distinguish it from other lands of the same kind. If the land intended to be conveyed is not identifiable from the words of the deed, aided by extrinsic evidence explanatory of the terms used or by reference to another instrument, the deed is inoperative. So too, if the description in a deed is in such indefinite terms that the property intended to be conveyed cannot be identified or located by a surveyor, the instrument will not convey title, although exceptions are made in cases of transfers of parts of designated tracts."
Also in 23 Am. Jur. 2d, Deeds, this is written in § 232, p. 274:
"It is not essential that a deed in and of itself set out a complete description or designation of the land which it is intended to convey. On the principle that that is certain which may be made certain, real estate is sufficiently described in a deed by reference for identification to a map, another deed, or patent in which such land is sufficiently described to be identifiable. Such a reference to another instrument for description of the subject matter has the effect of incorporating such instrument into the description so that that which is described will pass. When reference is made to a map or other document as describing the land, the description appearing in such map or document is made a part of the deed as fully and effectually as if copied therein, provided the deed and the document of reference together yield such description as would have been sufficient if set forth entirely in the deed. "
The court, in
Loeb v. Conley, 160 Ky. 91, 169 S.W. 575 (1914) 579, recognized the rule of law that the description of the land in a deed is an essential part of the instrument; and if the description is so insufficient that the land cannot be identified, the instrument will not furnish the constructive notice necessary to charge innocent purchasers, and will indeed be void as to them. This simply means that a competent surveyor must be able to examine the description in the deed and then go out on the land and locate the land conveyed. See
Casteel v. Pennington, 228 Ky. 206, 14 S.W.2d 753 (1929) 754. The description must be certain and identifiable.
Justice v. Justice, 239 Ky. 155, 39 S.W.2d 250 (1931).
The Kentucky court has adopted the principle set forth in American Jurisprudence, above. We find this written in
Ken-Tex Exploration Co. v. Conner, Ky., 251 S.W.2d 280:
"Courts are liberal in construing descriptions in deeds with a view of determining whether a description is sufficiently definite and certain to identify the land and make the instrument operate as a conveyance. They apply the maxim, 'That is certain which can be made certain,' and if a surveyor with the deed before him can with the aid of extrinsic evidence locate the land and establish its boundaries, the description is held to be sufficient. 16 Am. Jur. "Deeds, " § 262, p. 585;
Casteel v. Pennington, 228 Ky. 206, 14 S.W.2d 753;
Culton v. Napier, 272 Ky. 384, 114 S.W.2d 480."
The doctrine that an antecedent recorded deed may be relied upon as extrinsic evidence to show description was adopted in
Bland v. Kentucky Coal Corporation, 306 Ky. 1, 206 S.W.2d 62 (1947) 63, in which the court wrote:
"It is likewise well settled that, where a deed refers to an antecedent, recorded deed for a particular description of the property, the description contained in the recorded deed must be read into the description contained in the deed under examination to identify the property conveyed. "
See also
Carter's Adm'r v. Quillen, 239 Ky. 583, 39 S.W.2d 1012 (1931) 1013, of similar import and stressing that the description in the deed referred to becomes a part of the description of the deed under examination, and the purchaser must look to the reference deed to determine the precise extent of his acquisition.
KRS 382.110 deals with the county clerk's recording of deeds and the basic requisites thereof. Implicit in this statute is the requirement that the deed contain an adequate description or a deed book and page number reference in the deed indicating a recorded deed in the chain of title wherein the adequate description is given.
The answer to your question is that although A's deed to B does not indicate the description of the land conveyed to B, but does refer to the immediate source of title by deed book and page number in the clerk's office, which source of title contains a full or adequate description as described above, it is our opinion that A's deed to B is in valid form for recording and must be recorded where other requisites mentioned in KRS Chapter 382 are met. When reference is made in such deed to the immediate source of title which source fully describes the land, the deed offered for recording, skeletal though it is standing alone, is valid for recording since the deed plus the immediate source of title deed together yield the desired information.