Telling the deeds apart
Reader Francine Crowley is having some trouble figuring out what kind of deed a particular document is based on the language in the deed.
“Where could I find more information that will help me determine what type of deed I am looking at based on verbiage it contains?,” she asked, thinking of course of quitclaim, warranty, and grant.
So… let’s first define terms here.
A deed is a “sealed instrument, containing a contract or covenant, delivered by the party to be bound thereby, and accepted by the party to whom the contract or covenant runs.”1
Yeah, right. Sure it is.
It’s a lot more useful to look at its “ordinary modern meaning”: “a written agreement, signed, sealed, and delivered, by which one person conveys land, tenements, or hereditaments to another.”2
In plain English, a deed is the written document by which one person usually transfers ownership of land to someone else.
But there are three basic types of deeds, and that’s what Francine is struggling with.
The one we see most often in ordinary land transactions we come across in genealogy is a warranty deed. That’s defined, simply, as a deed “which contains a covenant of warranty.”3 And that, in turn, is a “real covenant by the grantor of lands, for himself and his heirs, to warrant and defend the title and possession of the estate granted, to the grantee and his heirs…”4
The usual language you’ll see in a warranty deed is some language where the seller says, in legal terms, that he really does own this property, free and clear, and will defend the buyer’s right to it if it’s ever challenged down the road.
These representations are called covenants of title and they’re usually set out specifically in the deed.5
Now there will be times when the deed is simply labeled as a warranty deed or general warranty deed, and that label by itself carries with it the promise that the seller actually owns the title to the land he’s selling, free and clear, and will defend it against any claims by anybody else.
But the warranty deed isn’t the only kind of deed you’ll see. Today’s modern residential real estate sales often use what’s called a grant deed, or deed of grant. That’s a “deed to real estate containing an implied promise that the person transferring the property actually has good title and that the property is not encumbered in any way, except as described in the deed.”6
The key difference between a warranty deed and a grant deed is that the warranty deed includes the promise to defend the buyer’s title to the land if it’s ever challenged down the road, while the grant deed doesn’t have that promise. In both cases, though, the seller is representing that he does have good title to the property. In the grant deed, any encumbrance (any debt against the land or any claim anyone else might have to it) is spelled out in the deed itself.
And, occasionally you’ll also see what’s called a quitclaim deed. That’s a deed “operating by way of release; that is, intended to pass any title, interest, or claim which the grantor may have in the premises, but not professing that such title is valid, nor containing any warranty or covenants for title.”7
Notice the key difference for a quitclaim: it doesn’t have those promises. It simply says, “whatever I have, I give or sell to you.” This is the kind of deed that’s often used in family land transfers, the kind you’ll see, for example, when an estate is settled and all the younger kids are giving up their rights to the oldest brother.
Sometimes — and in fact usually — a quitclaim says it’s a quitclaim. If it doesn’t, then the seller will usually use the term quitclaim in saying what he’s doing with the land (“sell, grant, quitclaim…”).
But the real giveaway that a deed is a quitclaim and not a warranty deed or a grant deed is what isn’t there: you won’t find those covenants; you won’t find that promise to defend the buyer’s title down the road.
So… if the deed says it’s a warranty deed or if it contains a promise to defend the title against any challenges down the road, it’s a warranty deed. If it says the seller has good title but it doesn’t have that promise to defend, it’s likely a grant deed. And if it doesn’t have any promises at all, and simply transfers whatever the seller has, it’s likely a quitclaim.
And the difference genealogically? The warranty or grant deed is more likely to have been used between strangers (ordinary buyers and sellers) and the quitclaim more likely to have been used within a family. That’s not 100%, of course. Lots of family members bought and sold land among themselves by warranty deed. But a quitclaim may suggest some relationship among the people involved; it’s at least worth considering the possibility.
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 343, “deed.” ↩
- Ibid. ↩
- Ibid., 1235, “warranty deed.” ↩
- Ibid., “warranty.” ↩
- See Judy G. Russell, “Covenants of title,” The Legal Genealogist, posted 17 Dec 2012 (https://www.legalgenealogist.com/blog : accessed 10 July 2016). ↩
- Wex, Legal Information Institute, Cornell Law School (http://www.law.cornell.edu/wex : accessed 10 July 2016), “grant deed.” ↩
- Black, A Dictionary of Law,986, “quitclaim deed.” ↩