How can you grant title and rights to a trustee

[Patriotdiscussions]

At the closing table if you do not already own the title?


Remember me telling you that the house was paid for at the closing table with your promise to pay note(promissory note)?

How do I know this you ask? Look at your paperwork that gives the bank the right to take the house back...... Notice how it says your "lawfully seised" of the property?

Deeds usually contain covenants concerning seisin, good right to convey, quiet enjoyment, against incumbrances, followed by a general warranty. The deed under consideration contained no other covenants than the above quotation from it, but it is believed that it contains, under a proper construction, all of the usual covenants, only one of which, however, if any, was broken, that is, according to the allegations of the complaint, and that is the covenant of seisin. The authorities are all to the effect that "lawfully seised" Includes right to convey, and none of them go quite so far as to say that the idea of possession, actual or constructive, is eliminated. So, with no other covenant of possession, the term "lawfully seised," as used In the deed herein, ought to be construed to include it "Livery of seisin" at common law, from which term the word "seisin" In our deeds is unquestionably derived, meant delivery of actual possession; and to divorce the word "seisin" from all idea of possession, as contended for, would be contrary to ordinary legal rules of construction. Webster defines "seisin" by the one word, "possession." The authorities distinguish between seisin in deed or in fact, which they call actual possession, and seisin in law, which they define as the right to immediate posses
sion.

In Jenkins v. Fahey (N. Y.) 11 Hun, 35L it is said that seisin at common law signifies possession. In the case of North. Pac. R. R. v. Cannon (C. C.) 46 Fed. 222, 232, it is said that seisin means possession. The word seisin, under the authorities, includes, also, the covenant of "right to convey," but, as this deed contains a separate covenant of the right to convey, it seems plausible that the words, "lawfully seised," were intended to refer to possession alone

. Devlin on Deeds (3d Ed.) § 889, says:
"Unless there is some statutory regulation to the contrary, the rule is that a covenant of seisin, where the grantor has no possession, either actual or constructive, is broken as soon as made."

This text is supported by decisions disclosing the weight of authority of the present day, among which is the case of Hayden v. Patterson, 39 Colo. 15, 18, 88 Pac. 437, 438, in which it Is said:

"Where a grantor conveys land to which he has no title, particularly if he is out of possession, his covenants of seisin and right to convey are broken as soon as made."

The same was held in Adams v. Schiffer, 11 Colo. 15, 36, 17 Pac. 21, 32, 7 Am. St. Rep. 202. There it is said:
"The covenant of right to convey amounts to a covenant of seisin; they are synonymouB. The principles and practice applicable to the one apply to the other. 3 Washb. Real Prop. 448; Will. Real Est 415; Rickert v. Snyder, 9 Wend. (N. Y.) 421. There was no breach of this covenant, as, at the time of the conveyance, Adams was in possession of the property conveyed, and had a right to convey, within the meaning of the covenant 3 Wttshb. Real Prop. 449."

The same was held in a later case (Seyfried v. Knoblauch, 44 Colo. 80, 90, 96 Pac. 993). In the case of Allen v. Allen, 48 Minn. 462, 51 N. W. 473, the court said:
"A covenant of seisin is broken if the covenantor has not the possession, the right of possession, and the complete legal title."

The above language is taken from the case of Fitzhugh v. Croghan, 2 J. J. Marsh. (Ky.) 429, 19 Am. Dec. 139, cited in Rawle on Covenants for Title, page 58. In the case of Pierce v. Johnson, 4 Vt. 247, the court said:

"That the covenant of seisin is satisfied by possession without title cannot well be reconciled to sound reason, except when applied to the naked covenant of seisin, without any words that imply any other right but mere possession."

[Pottapaug1938]

I'm not going to dignify this word salad of antique citations and cases with a detailed analysis; but here is how things work in Massachusetts. When my wife and I bought our house in 1983, we bought it as "tenants by the entirety", which is a peculiarity of Massachusetts law giving married couples a right of ownership much like that of joint tenants. The deed from the seller came with "quitclaim covenants (like the special warranty covenants in other states), verifying that the seller would warrant and defend the granted title against defects during their period of ownership only; and it conveyed legal title in fee simple. Subsequently, we granted legal title to the lender for our mortgage; but this was a defeasible title, in that we could take title away from them by satisfying the conditions of the mortgage and note, which we have since done. Throughout the term of the mortgage, we retained an equitable title to the extent that we had repaid the money lent under the term of the mortgage note.


During the term in which the mortgage note had yet to be paid off, the lender or its successors had no right to convey the property elsewhere, or exercise any incident of ownership, unless we failed to satisfy the terms of the mortgage and note, thus triggering the rights to foreclosure and power of sale granted by us to the lender. My wife and I retained full control over the property; and our only duty to the lender was to keep the property in good repair and to pay all taxes due on it. We now own the property outright, since the mortgage note has long since been satisfied.

[arayder]

Over on the Sui Juris Club Forum http://www.suijurisforum.com/banks-coll ... ra-f7.html, PD is busy pumping members for case cites and theory on mortgages, medical bills, car loans and credit scores.

It seems PD is trying to start a "side business getting things removed off peoples credit report's". God help the poor souls who engage our visitor.

Eventually PD will get to the point either here or over on Sui Juris.

[Patriotdiscussions]

I'm not going to dignify this word salad of antique citations and cases with a detailed analysis; but here is how things work in Massachusetts. When my wife and I bought our house in 1983, we bought it as "tenants by the entirety", which is a peculiarity of Massachusetts law giving married couples a right of ownership much like that of joint tenants. The deed from the seller came with "quitclaim covenants (like the special warranty covenants in other states), verifying that the seller would warrant and defend the granted title against defects during their period of ownership only; and it conveyed legal title in fee simple. Subsequently, we granted legal title to the lender for our mortgage; but this was a defeasible title, in that we could take title away from them by satisfying the conditions of the mortgage and note, which we have since done. Throughout the term of the mortgage, we retained an equitable title to the extent that we had repaid the money lent under the term of the mortgage note.


During the term in which the mortgage note had yet to be paid off, the lender or its successors had no right to convey the property elsewhere, or exercise any incident of ownership, unless we failed to satisfy the terms of the mortgage and note, thus triggering the rights to foreclosure and power of sale granted by us to the lender. My wife and I retained full control over the property; and our only duty to the lender was to keep the property in good repair and to pay all taxes due on it. We now own the property outright, since the mortgage note has long since been satisfied.

So you granted them legal title before you paid off the note.

How did you gain legal title before the note was paid? You can grant titles you do not legally own?

[Patriotdiscussions]

"Where a grantor conveys land to which he has no title, particularly if he is out of possession, his covenants of seisin and right to convey are broken as soon as made."
- in Cases Argued and Determined in the Court of Appeals of the State of Colorado and 2 similar citations


http://scholar.google.com/scholar_case? ... as_sdt=4,6

[Famspear]

So you granted them legal title before you paid off the note.

How did you gain legal title before the note was paid? You can grant titles you do not legally own?

You are totally confused, PD. That's not what the material says.

The text dumped by PD in his initial post in this thread appears to have been copied from the case of Stearns v. Jewel as reprinted on pages 390 through 399 of “Cases Argued and Determined in the Court of Appeals of Colorado,” volume 27 (1915), or from some other source that was copied from that source.

I’ll try to re-phrase PD’s question so that it makes more sense:

“How can you [the person acquiring a piece of real estate] grant title and rights to a trustee [meaning, the trustee under a deed of trust, which is similar to a mortgage instrument] at the closing table [when you acquire the real estate] if you do not already own the title?”

And the answer of course, is that this is a meaningless question, because this is not what you’re doing at a real estate closing.

Here’s what happens.

Let’s say that you’re buying a piece of real estate. At the closing ceremony, you as the buyer receive title to (that is, ownership of) the property. The transfer of ownership from the seller to you as the buyer is often done by having the seller sign and deliver a piece of paper called a “deed” to the buyer. The seller is often called the “grantor” and the buyer is often called the “grantee”.

If the buyer is borrowing part of the funds for the purchase, the buyer signs a piece of paper called a “promissory note” to evidence the debt owed to the lender.

The lender also requires that the buyer sign a piece of paper evidencing a lien that the buyer is granting -- in favor of the lender -- in the property being purchasing. In “mortgage” states, this is done by having the borrower or “mortgagor” sign a piece of paper called a “mortgage” in favor of the lender, who is called a “mortgagee.” Somewhat confusingly, the lender or mortgagee is called the “lienor”, while the borrower (the mortgagor) is called the “lienee.” A lienor is someone who has a right of lien on the property of another person. A lienee is someone whose property is subject to (is encumbered by) a lien. A lien is a charge on, or security on, or encumbrance of, property -- generally for the purpose of securing the payment of a debt.

In a “deed of trust” state, the borrower signs a “deed of trust” instead of a “mortgage.” In this situation, the lender is called the “beneficiary” and a person called the “trustee” is really a sort of agent for the lender.

Conceptually, we can think of the “deed of trust” as being executed AFTER the “deed” is delivered to the buyer. So, at the time you as buyer “grant title and rights to a trustee” (as PD put it), you already hold the “title and rights”. Because you already hold the “title and rights,” you are now able to “carve out” a portion of the “title and rights” and transfer a portion to the trustee, for the benefit of the lender (keeping a large part of them for yourself, of course). Once you pay the debt in full, the rights of the trustee and of the beneficiary under the deed of trust (and the rights of the holder of the promissory note) are extinguished.

Although the documents may or may not be signed in precisely the order I have described, that probably does not matter. All these documents are signed at (or, in the case of the deed, perhaps shortly before) the closing ceremony.

[arayder]

So you granted them legal title before you paid off the note.

How did you gain legal title before the note was paid? You can grant titles you do not legally own?

You are totally confused, PD. That's not what the material says . . .

So just a few posts into the thread we have clarity.

Now comes the part where PD asks more questions, moves the goal posts and changes the subject.

[Patriotdiscussions]

As we can see

https://www.google.com/search?q=lawfull ... ent=safari

Everyone is lawfully seised of the property at closing.

Lawfully seised comes from the doctrine of livery of seisin, which you can read more about here

http://deadlyclear.wordpress.com/2013/0 ... -mortgage/

Or google it yourself.

[Famspear]

PD wrote:

So you granted them legal title before you paid off the note.

No, you granted the lender a PART of the title that you DID own before you paid off the note.

How did you gain legal title before the note was paid? You can grant titles you do not legally own?

Wrong. You grant title that you DO own. At the closing, you acquire what can be thought of as a "bundle of sticks." Each of the sticks in the bundle is a component of title. A few seconds after you acquire the bundle of sticks, you take a few of the sticks and give them to the lender.

This is not rocket science, PD.

What part of "everyone is lawfully seised of the property at closing" do you not understand?

We don't need to "google it." It's obvious that we understand it, and you don't.

[Pottapaug1938]

So you granted them legal title before you paid off the note.

How did you gain legal title before the note was paid? You can grant titles you do not legally own?

Easy. We got legal title from the sellers. We then granted it to the lender, with "mortgage covenants"; but as I said before this is a defeasible title, which we did indeed defeat by paying off the mortgage note, thus entitling us to receive a discharge of the mortgage, conveying legal title back to us, which we then recorded at the Registry of Deeds. Between the date of the closing and the date on which the mortgage not was fully paid and the discharge was issued, we had equitable title.

In "lien theory" states, the homeowner retains legal title but a lien is imposed on the property by the lender, which is released once the mortgage not is paid off.

[arayder]

Wait I think I get it!

According to our friend the federal government has no authority outside D.C., the states steal you car title when you go the DMV and when the banks foreclose on a house they are really stealing the house.

[Patriotdiscussions]

So you granted them legal title before you paid off the note.

How did you gain legal title before the note was paid? You can grant titles you do not legally own?

You are totally confused, PD. That's not what the material says.

The text dumped by PD in his initial post in this thread appears to have been copied from the case of Stearns v. Jewel as reprinted on pages 390 through 399 of “Cases Argued and Determined in the Court of Appeals of Colorado,” volume 27 (1915), or from some other source that was copied from that source.

I’ll try to re-phrase PD’s question so that it makes more sense:

“How can you [the person acquiring a piece of real estate] grant title and rights to a trustee [meaning, the trustee under a deed of trust, which is similar to a mortgage instrument] at the closing table [when you acquire the real estate] if you do not already own the title?”

And the answer of course, is that this is a meaningless question, because this is not what you’re doing at a real estate closing.

Here’s what happens.

Let’s say that you’re buying a piece of real estate. At the closing ceremony, you as the buyer receive title to (that is, ownership of) the property. The transfer of ownership from the seller to you as the buyer is often done by having the seller sign and deliver a piece of paper called a “deed” to the buyer. The seller is often called the “grantor” and the buyer is often called the “grantee”.

If the buyer is borrowing part of the funds for the purchase, the buyer signs a piece of paper called a “promissory note” to evidence the debt owed to the lender.

The lender also requires that the buyer sign a piece of paper evidencing a lien that the buyer is granting -- in favor of the lender -- in the property being purchasing. In “mortgage” states, this is done by having the borrower or “mortgagor” sign a piece of paper called a “mortgage” in favor of the lender, who is called a “mortgagee.” Somewhat confusingly, the lender or mortgagee is called the “lienor”, while the borrower (the mortgagor) is called the “lienee.” A lienor is someone who has a right of lien on the property of another person. A lienee is someone whose property is subject to (is encumbered by) a lien. A lien is a charge on, or security on, or encumbrance of, property -- generally for the purpose of securing the payment of a debt.

In a “deed of trust” state, the borrower signs a “deed of trust” instead of a “mortgage.” In this situation, the lender is called the “beneficiary” and a person called the “trustee” is really a sort of agent for the lender.

Conceptually, we can think of the “deed of trust” as being executed AFTER the “deed” is delivered to the buyer. So, at the time you as buyer “grant title and rights to a trustee” (as PD put it), you already hold the “title and rights”. Because you already hold the “title and rights,” you are now able to “carve out” a portion of the “title and rights” and transfer a portion to the trustee, for the benefit of the lender (keeping a large part of them for yourself, of course). Once you pay the debt in full, the rights of the trustee and of the beneficiary under the deed of trust (and the rights of the holder of the promissory note) are extinguished.

Although the documents may or may not be signed in precisely the order I have described, that probably does not matter. All these documents are signed at (or, in the case of the deed, perhaps shortly before) the closing ceremony.

I absolutely agree with everything you said. About the bolded part, how did we get the totle and rights if the bank is the one actually paying for the property? One would think the bank would own the title from the get go and hold it for us until the debt was paid.

When does the seller transfer his rights and title fully to me so that I can grant them to someone else? Is that at the closing table? Seems kind of a round about way don't you think?

[Famspear]

So you granted them legal title before you paid off the note.

How did you gain legal title before the note was paid? You can grant titles you do not legally own?

Easy. We got legal title from the sellers. We then granted it to the lender, with "mortgage covenants"; but as I said before this is a defeasible title, which we did indeed defeat by paying off the mortgage note, thus entitling us to receive a discharge of the mortgage, conveying legal title back to us, which we then recorded at the Registry of Deeds. Between the date of the closing and the date on which the mortgage not was fully paid and the discharge was issued, we had equitable title.

In "lien theory" states, the homeowner retains legal title but a lien is imposed on the property by the lender, which is released once the mortgage not is paid off.

I doubt that PD has any understanding of the distinction between title theory states and lien theory states.

Also, part of PD's problem might be that he cannot grasp the concept that a legal term has more than one meaning, just as ordinary every day words have more than one meaning.

[Patriotdiscussions]

So you granted them legal title before you paid off the note.

How did you gain legal title before the note was paid? You can grant titles you do not legally own?

Easy. We got legal title from the sellers. We then granted it to the lender, with "mortgage covenants"; but as I said before this is a defeasible title, which we did indeed defeat by paying off the mortgage note, thus entitling us to receive a discharge of the mortgage, conveying legal title back to us, which we then recorded at the Registry of Deeds. Between the date of the closing and the date on which the mortgage not was fully paid and the discharge was issued, we had equitable title.

In "lien theory" states, the homeowner retains legal title but a lien is imposed on the property by the lender, which is released once the mortgage not is paid off.

You of course got back your wet ink note when you paid off the loan correct?

[Pottapaug1938]

As we can see

https://www.google.com/search?q=lawfull ... ent=safari

Everyone is lawfully seised of the property at closing.

Lawfully seised comes from the doctrine of livery of seisin, which you can read more about here

http://deadlyclear.wordpress.com/2013/0 ... -mortgage/

Or google it yourself.

Your point -- IF you have one?

[arayder]

Now comes the part where PD asks more questions, moves the goal posts and changes the subject.

. . .how did we get the totle and rights if the bank is the one actually paying for the property? One would think the bank would own the title from the get go and hold it for us until the debt was paid.

When does the seller transfer his rights and title fully to me so that I can grant them to someone else? Is that at the closing table? Seems kind of a round about way don't you think?

You of course got back your wet ink note when you paid off the loan correct?

[Pottapaug1938]

So you granted them legal title before you paid off the note.

How did you gain legal title before the note was paid? You can grant titles you do not legally own?

Easy. We got legal title from the sellers. We then granted it to the lender, with "mortgage covenants"; but as I said before this is a defeasible title, which we did indeed defeat by paying off the mortgage note, thus entitling us to receive a discharge of the mortgage, conveying legal title back to us, which we then recorded at the Registry of Deeds. Between the date of the closing and the date on which the mortgage not was fully paid and the discharge was issued, we had equitable title.

In "lien theory" states, the homeowner retains legal title but a lien is imposed on the property by the lender, which is released once the mortgage not is paid off.

You of course got back your wet ink note when you paid off the loan correct?

Correct. More importantly, I got the mortgage discharge, which I recorded with the Registry of Deeds. In that mortgage, the lender acknowledges that the conditions of the mortgage were wholly satisfied.

[Famspear]

I absolutely agree with everything you said.

Really?

About the bolded part, how did we get the totle and rights if the bank is the one actually paying for the property?

What in the world is wrong with you? Forget about the mechanics of the transaction. The economic substance is that the bank is lending you the money, and YOU are paying for the property. YOU YOURSELF ARE PAYING 100% OF THE PURCHASE PRICE OF THE PROPERTY -- AT THE CLOSING CEREMONY.

One would think the bank would own the title from the get go and hold it for us until the debt was paid.

You are hopeless.

When does the seller transfer his rights and title fully to me so that I can grant them to someone else? Is that at the closing table? Seems kind of a round about way don't you think?

Yes, it's at the closing table. This "round about way" makes perfect sense, don't you think?

[Patriotdiscussions]

So you granted them legal title before you paid off the note.

How did you gain legal title before the note was paid? You can grant titles you do not legally own?

Easy. We got legal title from the sellers. We then granted it to the lender, with "mortgage covenants"; but as I said before this is a defeasible title, which we did indeed defeat by paying off the mortgage note, thus entitling us to receive a discharge of the mortgage, conveying legal title back to us, which we then recorded at the Registry of Deeds. Between the date of the closing and the date on which the mortgage not was fully paid and the discharge was issued, we had equitable title.

In "lien theory" states, the homeowner retains legal title but a lien is imposed on the property by the lender, which is released once the mortgage not is paid off.

Who split the title and on what document can you point to that backs up your theory of granting just legal title to the lender?

[arayder]

So you granted them legal title before you paid off the note.

How did you gain legal title before the note was paid? You can grant titles you do not legally own?

Easy. We got legal title from the sellers. We then granted it to the lender, with "mortgage covenants"; but as I said before this is a defeasible title, which we did indeed defeat by paying off the mortgage note, thus entitling us to receive a discharge of the mortgage, conveying legal title back to us, which we then recorded at the Registry of Deeds. Between the date of the closing and the date on which the mortgage not was fully paid and the discharge was issued, we had equitable title.

In "lien theory" states, the homeowner retains legal title but a lien is imposed on the property by the lender, which is released once the mortgage not is paid off.

Who split the title and on what document can you point to that backs up your theory of granting just legal title to the lender?

What's your theory, PD?