Title Examination Series: Recitals and Ancient Documents

RECITALS AND ANCIENT DOCUMENTS

I was recently confronted by an uninformed attorney about my lack of reliance on recitals in a document. He complained that my refusal to withdraw the related requirement included in the title opinion was malpractice. In this situation, the interest was a substantial mineral interest that was subject to numerous gaps in title, conflicting trusts, missing probates, and referenced but not provided conveyances. This attorney wanted to rely upon vague recitals included in a deed from the mid ‘90s.

I was not completely surprised by his unsubstantiated reliance on the recitals. I often see title attorneys making the same mistake, assuming that if it is in a deed over 20 years old, then it must be true. It seems that title attorneys often forget that different evidence carries different probative values. While a recital in an ancient document may be some evidence of the truth, it is subject to rebuttal.

Texas Title Standard 13.40 Reliance Upon Recitals provides as follows:

Recitals are statements of fact made in deeds, leases, mortgages and other documents. Because documents containing recitals are not typically sworn statements, recitals should generally be regarded as having less probative force than affidavits; however, an examiner having no reasonable basis for doubt or suspicion may rely upon recitals as establishing the recited facts.

The comments to 13.40 provide, in part, as follows:

Recitals are not sworn statements, however, and are often much less thorough than affidavits intended to establish similar facts. They should therefore be appraised somewhat more critically than affidavits, although the indicia of reliability the examiner should consider are much the same as those mentioned for affidavits in the Comment to Standard 13.20. Reliance on a recital is particularly warranted if it occurs in an ancient document (one in existence at least twenty years, in a condition that arouses no suspicion, and in a place where it would likely be if authentic). See Tex. R. Evid. 803(16) & 901(b)(8). Recitals in an ancient document are prima facie evidence of the facts recited. Zobel v. Slim, 576 S.W.2d 362, 365 (Tex. 1978); Moses v. Chapman, 280 S.W. 911, 913–14 (Tex. Civ. App.—Texarkana 1926, no writ).

In addition, the“Caution” following the comments on Standard 13.40 are replete with warnings about reliance upon recitals.

This standard is intended to recognize the examiner’s latitude in accepting the truth of a recital whose source appears to be reliable; nevertheless, some degree of subjective judgment is required to appraise the likelihood that a person in the declarant’s position would misstate the pertinent facts, either from lack of knowledge or from self-interest.

. . .a prudent examiner will not treat recitals, although admissible into evidence, as established facts against all the world without sufficient indicia of their reliability.

Further, the existence and contents of necessary written documents may not rest on a mere recital. . . . It should go without saying that a recital of the existence of an essential deed should not take the place of the deed itself.

For example, recitals even in ancient documents should not be relied upon if they consist of mere conclusions that are uncorroborated and self-serving, such as a grantor’s bare recital of heirship in a deed. See, e.g., Slattery v. Adams, 279 S.W.2d 445, 451–52 (Tex. Civ. App.—Beaumont 1954), aff’d on other grounds, 295 S.W.2d 859 (Tex. 1956).

Where the primary source of the grantor’s recited authority is presumably readily available, as from court records, the primary source must be examined. Jobe v. Osborne, 97 S.W.2d 939, 940 (Tex. 1936); Tucker v. Murphy, 1 S.W. 76 (Tex. 1886).

While recitals in ancient documents are admissible as evidence of the facts recited, they are not conclusive proof. Bruni v. Vidaurri, 166 S.W.2d 81, 90–91 (Tex. 1942).

Generally, the ancient document rule is an evidentiary rule that applies to the authentication of documents over 20 years old and is an exception to the hearsay rule. (See Texas R. Evid. 803(16) and 901(b)(8)).

One of the key elements to understanding the “Ancient Document” rule is that it does not provide that the information included in the document is conclusively established. It provides that the information is admissible as evidence. “The recital of the power is not to be regarded as conclusive evidence. The presumption that arises from the recital is a true presumption which places on the party against whom it operates the burden of producing evidence to rebut it.” W. v. Hapgood, 141 Tex. 576, 582, 174 S.W.2d 963, 967 (1943), citing Stooksbury v. Swan, 85 Tex. 563, 22 S.W. 963; McCormick & Ray's Texas Law of Evidence, pp. 57-61, Secs. 31-38.

In addition, it should be noted that recitals in documents that have been of record for more than 5 years are prima facie evidence as to facts concerning the family history, genealogy, marital status, or the identity of the heirs of a decedent. However, even in those situations, the recitals are not conclusively established, but only treated as prima facie evidence, “Prima facie proof is necessarily subject to rebuttal.” W.T. Carter & Bro. v. Rhoden, 72 S.W.2d 620, 627 (Tex. Civ. App. 1934), writ dismissed.

RELIANCE BY TITLE EXAMINERS ON RECITALS

As indicated above, the Title Standards provides that a title examiner “may” rely upon recitals as establishing the recited facts, if there is no reasonable basis for doubt or suspicion. It should be noted that this is not a mandatory provision, requiring a title examiner to rely upon such recitals, but merely a provision permitting such reliance if so desired. In addition, the standard provides that recitals should be treated as having less probative force than affidavits, and affidavits are not automatically relied upon and taken as undisputable fact. The reliance upon affidavits is also allowed, but not required by a title examiner. In addition, as provided in the Caution to Standard 13.20, “Title based upon an affidavit may not be marketable. An examiner should be very hesitant to rely upon an affidavit in lieu of more reliable and readily obtainable proof, such as a conveyance or the existing proceedings of a court of record.”

Therefore, it is clear that the “ancient document” title standard (13.40) does not provide for conclusively establishing the facts recited therein, but merely provides a justification for relying upon such statements, if so desired. This is necessarily a risk analysis that must be made on a case-by-case basis, evaluating all of the pertinent information, and based upon the risk tolerance of the examining attorney and the client based upon the current situation.

If a title examiner chooses to rely upon recitals in an “ancient document,” such reliance may be justified and supported by the Ancient Document rule, but said rule does not require or mandate that you rely upon such recitals. The Ancient Document rules are shields/exceptions to the normally strict evidentiary rules. These rules are designed to allow reliance upon ancient documents in certain circumstances, and are always subject to rebuttal. They are not mandatory guidelines to be followed in title examination.

In the situation I first referenced above, because of (i) the size and nature of the interest, (ii) the litigious and contentious nature of the parties, (iii) the prior and subsequent title issues, and (iv) the nature and content of the recitals, it was necessary to not rely solely upon the recitals in the documents and require further proof of the chain of title. Each situation is unique. The recitals in an ancient document may be a very critical chapter in the history of the land; however, they are not the end of the story. ​​