Individuals Separated by a Common Language

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

I’ll classify this real property question under “Tricky Diction,” but it could fit just as easily under “Confusion.”

A homeowner, just before going on an overseas trip, gave his brother a power of attorney to sell his house, which stated: “My brother is specifically empowered to sell and convey all or any part of the real property owned by me as of this date.” Several weeks later, the brother sold the homeowner’s house to a buyer and conveyed to her a customary deed containing convenants of title. A year later, when the homeowner returned from his trip, he was served with a complaint by the buyer, who was suing him for breach of covenant because it turned out that the homeowner’s ex-wife owns one-half interest of the house that the brother had sold on his behalf.

In this suit, the buyer should:

I added the italics, and before reviewing the answer choices, let me rant: What the heck is a “customary deed”?

I don’t know about other law school real property courses, but I was taught there are three types of deeds:

1. General Warranty Deed that includes all present and future covenants;
2. Special Warranty Deed that includes only present covenants;
3. Quitclaim Deed that is limited to whatever interest, if any, the grantor may have.

I did not ever learn about something called a “customary deed,” nor did I encounter that term in any of the cases that accompanied my real property course or bar review.

In the cosmic scheme of things, this illustrates an important aspect of the human condition: our vulnerability to the limitations of language as understood by each of us, and the fact that each of us really speaks our own individual language. Hopefully, that language is based on a common root language, and for the most part meanings among individual languages will overlap enough that so that we won’t blow ourselves up as a result of translation confusion — though wars, fisticuffs and verbal offence are common enough from simple language differences and misunderstandings.

Law, of course, depends on language, and understanding the inherent dangers of language limitations is one reason legal documents are so tediously detailed: they attempt to define all the terms so everyone understands the words to have one specific meaning in that specific context.

However, with respect to the MBE and test preparation, the translation confusion such as is presented in the above question is merely a means to muddle the test takers. Is this a serious, legitimate method of testing or is it just that somewhere, in some room, some formulator was having a bad day or is just normally sadistic and thought: “Let’s just rattle their cages by using nonstandard language in this subject area; some will panic and get it wrong.”

And yes, it gets more irritating, because here is the correct answer:

Not prevail, unless the power to “sell and convey” is construed to include the power to execute a usual form of deed used to convey real property.

Here we go again: intentional attempts to muddle our minds with meaningless doubletalk.

Each of the three type of deeds mentioned above ARE, as far as I know, a “usual form of deed,” depending on the circumstances and exactly what the grantor wants to convey. And by definition — assuming we all have the same or closely similar understanding of these words — “customary deed” is perforce a “usual form of deed.”

Also, prospective MBE takers are well acquainted with the negative form of answer, but it is still the most common device used to confuse. If your mind doesn’t automatically translate, and nagging doubts remain, then take the extra few seconds to rephrase into a positive, in this case: “Prevail because the power of the brother to sell and convey homeowner’s real property is valid.”

Too Simple

As long as we’re on real property, try this, though not really a nit:

A landowner gratuitously conveyed his interest in land to a friend by quitclaim deed. The friend promptly and properly recorded her deed. Six months later, the landowner conveyed his interest in the same land to an investor for $50,000 by warranty deed, which was promptly and properly recorded.

As between the friend and the investor, who has the superior right of title to the land?

A.   The friend, regardless of the type of recording statute.

B.   The friend, because she recorded prior to the investor recording.

C.   The investor, regardless of the type of recording statute.

D.   The investor, because it took by warranty deed rather than quitclaim deed.

If everyone is really “promptly and properly” with their quitclaim and warranty, respectively, who wins?

Correct choice: A. It harks back to a basic common law principle still often good law that first in time is first in right. But this is one of those answers where test takers might be tempted to think, “That’s so simple it must be wrong.” One had to remember that a properly recorded conveyance cannot be snatched away through use of recording statutes, and it makes no difference if the grantee was a donee or buyer. Recording provides notice and prevents anyone — in this case, the investor — from later becoming a bona fide purchaser for value or BFP.

One major clue here was that the fact pattern did not mention what type of recording statute, which by deduction indicates that was of no importance.

If the editor in me really wanted to pick nits: some sloppy construction that uses extraneous and unnecessary words, a strange use of a neuter pronoun, and an incorrect pronoun antecedent. But who’s keeping score?

-------------------------------------------

Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.