Request By:
Mr. James D. Wheeler
Crittenden County Clerk
Courthouse
Marion, Kentucky 42064
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Shortly you will be presented a quitclaim deed for recording which does not contain a source of title. You ask whether KRS 382.110 applies to quitclaim deeds as well as general warranty deeds.
KRS 382.110(2) and (3) reads:
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"(2) No county clerk or deputy county clerk shall admit to record any deed of conveyance of any interest in real property equal to or greater than a life estate, unless the deed plainly specifies and refers to the next immediate source from which the grantor derived title to the property or the interest conveyed therein.
"(3) If the source of title is a deed or other recorded writing, the deed offered for record shall refer to the former deed or writing, and given the office, book and page where recorded, and the date thereof. If the property or interest therein is obtained by inheritance or in any other way than by recorded instrument of writing, the deed offered for record shall state clearly and accurately how and from whom the title thereto was obtained by the grantor. "
The failure to recite the source of title in a deed does not prevent the title in a deed from passing from the grantor to the grantee. Blackburn v. Pond Creek Coal & Land Company, Ky., 287 S.W.2d 610 (1956) 613. However, where KRS 382.110, where applicable, is not complied with, the proffered deed is not recordable. And it is generally established that an unauthorized recording of an instrument will not operate to give constructive notice of the contents of that instrument. Brannaman v. Black Tam Mining Company, Ky., 446 S.W.2d 573 (1969) 575.
"The law is well settled that a quitclaim deed is as effectual to convey land as any other deed; the only difference being that the former does not contain covenant of warranty." Hosman v. Willett, Ky., 107 S.W. 334 (1908) 336. There is no difference in their efficacy and operative force between conveyances in the form of a release and quitclaim and those in the form of grant, bargain, and sale. If the grantor in either case at the time of the execution of his deed possesses any claim to or interest in the property, it passes to the grantee. Hosman v. Willett, above. See also Smith v. Graf, 259 Ky. 456, 82 S.W.2d 461 (1935) 468. Thus whatever interest the grantor in a quitclaim has, it passes to the grantee in an appropriately worded instrument.
An instrument which merely purports to convey the right, title, and interest of the grantor is a quitclaim deed and the vendee is not a bona fide holder. As a corollary rule, "a deed, which is only quitclaim in form, is sufficient to put the grantee upon notice that his grantor has doubts concerning the sufficiency of his title, and the deed itself is notice to him that he is getting a doubtful title." (Emphasis added). Arnett v. Stephens, 199 Ky. 730, 251 S.W. 947 (1923) 951. In addition, such a quitclaim deed grantee is not clothed with the protection afforded a bona fide purchaser with respect to outstanding equities not evidenced by a recordable writing. See Form 31.22, Caldwell's Kentucky Form Book (third edition).
Generally, under KRS 382.110, if the interest in the real estate is equal to or greater than a life estate, the deed must plainly specify and refer to the next immediate source of title as required by KRS 382.110(2). If the grantor's interest was obtained by inheritance or in any other way than by a recorded instrument of writing, then KRS 382.110(3) requires the grantor in his deed offered for recording to state clearly and accurately how and from whom the title thereto was obtained by the grantor.
The big problem here is: Just how is the clerk, looking at the face of the quitclaim deed, to determine whether the interest transferred is equal to or less than a life estate?
"The distinguishing characteristic of a quitclaim deed is that it conveys the interest or title of the grantor in and to the property described, rather than the property itself." 23 Am.Jur.2d, Deeds, § 191, p.p. 237-238. Thus if no definite interest is specified, "the grantor is considered to have plainly manifested an intention to convey only such title as he may then have, and the deed is a mere quitclaim. " (Emphasis added). Id., p. 238. The complexity of the quitclaim deed is reflected in the fact that "a quitclaim deed will convey an equitable remainder, an equity of redemption in mortgaged land, the right to redeem land sold for delinquent taxes, the rights of a mortgagee, dower rights in land, or covenants running with the land." 23 Am.Jur.2d, Deeds, § 292, p.p. 324-325.
Now, realizing the complexity posed by a quitclaim deed as to the interest conveyed [very often neither the grantor nor the grantee knows precisely just what the grantor's interest is, if anything], it remains that the county clerk is basically a ministerial officer. "A specific duty to be performed by a public officer, arising upon stated existing facts, is ministerial, and even though necessity may arise or exist for ascertainment of those facts, such does not operate to convert the act into one judicial in character." Renaker v. Thompson, 287 Ky. 241, 152 S.W.2d 575 (1941).
If the deed in question merely transfers whatever right, title or interest the grantor may have in the subject land, the county clerk is not required to perform the judicial act of determining precisely whether the interest transferred is equal to or less than a life estate. In many cases that would have to be determined by the courts. The point is that since the clerk will be unable to determine precisely from the quitclaim deed on its face whether the interest conveyed is equal to or less than a life estate, then it is our opinion that the clerk would have to record the deed, provided it meets the test of KRS 382.010, 382.130 [acknowledgment etc.], KRS 382.335, or of any applicable section in KRS Chapter 382, other than 382.110.
Because of the complexity, mystery, vagueness, and uncertainty surrounding quitclaim deeds generally, as relates to any interest conveyed, if any, it is our view that KRS 382.110, which imposes special conditions on the recordability of deeds and mortgages, etc., was apparently not intended to apply to quitclaim deeds. While extrinsic information by way of an affidavit of grantor or grantee of a quitclaim deed bearing on the precise nature and extent of grantor's interest, if known, would be helpful to title examiners, KRS 382.110 contains no such requirement.