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Volume 7 - Opinions of Counsel SBEA No. 60

Opinions of Counsel index

Tax deed (conveyance by county in name of county treasurer) (deed of confirmation or correction) - County Law, §§ 215, 550; Real Property Tax Law, § 1018:

It is proper for a county to issue a deed of confirmation when title to its property has been conveyed in the name of the county treasurer resulting in a voidable deed, if the county intended to convey its interest, no fraud has been alleged or proven, and there are no third parties who would be adversely affected.

Our opinion has been requested regarding a deed to real property issued by a county treasurer in 1938. The inquiry was prompted by a demand made by a title insurance company upon the county treasurer for a “confirmatory deed” based upon the following facts.

The County acquired title to real property by tax deed dated November 30, 1931. By resolution No. 116, dated December 13, 1938, the County Board of Supervisors authorized the County Treasurer to sell that parcel to John H. Grosvenor (misspelled in the deed as “Grovenor”). The County Treasurer thereupon prepared a deed naming himself as the grantor and Mr. “Grovenor” as the grantee. Mr. Grosvenor recorded his deed from the County Treasurer in the County Clerk’s office on October 4, 1973 and transferred title to one Vincent Agostino by a deed recorded December 24, 1973.

A title insurance company objected that the grantor in the 1938 conveyance should have been the “County” rather than the “County Treasurer”. Therefore, the Company has asked that a confirmatory deed now be issued by the County Treasurer. The County Treasurer has expressed willingness to correct the spelling error which occurred, but has objected to the demand relative to the propriety of the 1938 deed, citing the resolution of the County Board.

A deed of confirmation or correction “may be used to correct mistakes in deeds” (15 N.Y.Jur. (Rev.), Deeds, § 11 (1972)). “A confirmation is somewhat similar to a release, in that it confirms the grantee in his estate free from any claim by the grantor . . .” (id.).

The misspelling of a name in a legal document, while of great importance if it completely changes the pronunciation, is relatively unimportant if it does not, as appears to be the case her. It has been held that under the doctrine of idem sonans.

[S]trict or absolute accuracy in spelling names is not required in legal documents or proceedings. All that is required is that the name as spelled, though different from the correct spelling, conveys to the ear, when pronounced according to commonly accepted methods, a sound practically identical with the sound of the correct name when pronounced. (Sporza v. German, 119 App.Div. 172, 104 N.Y.S. 260, at 262 (1st Dept., 1907), aff’d, 192 N.Y. 8, 84 N.E. 406 (1908)).

Therefore, while the Treasurer may issue a corrective deed for the purpose of amending the spelling of “Grovenor”, as entered in the 1938 deed issued to Mr. Grosvenor, it is our opinion that it is not necessary that he do so. The more significant question is whether it is necessary or proper for the County Treasurer to issue a confirmatory deed because of the description of the County Treasurer, rather than the County, as grantor.

A deed conveying property by a grantor who is not the true owner of such property usually will be considered void and of no legal effect (Real Property Law, § 245; Hathaway v. Payne, 34 N.Y. 92 at 108 (1865), as cited in Holden v. Palitz, 2 Misc.2d 433, 154 N.Y.S.2d 302 at 308 (S.Ct., Westchester Co., 1956); In re Marsh, 152 Misc. 454, 272 N.Y.S. 807 (S.Ct., Kings Co., 1934); Hammond v. Antwerp Light and Power Co., 132 Misc. 786, 230 N.Y.S. 621 (S.Ct., Lewis Co., 1928)). In a transfer of real property, a grantor can transfer to a grantee only as much interest as he has in the property (id., 230 N.Y.S. at 627).

In most cases, it is necessary that the grantor be the owner of the land. However, there are some situations in which a grantor, while not the owner of the property, still has the authority to convey.

For example, it has been held that deeds executed by persons in their official or representative capacities will pass title to the property and bind those whom they represent in the same manner as if the deeds had been made, executed and delivered by the latter (Ryle v. Davidson, 116 S.W. 823, certified questions answered, 115 S.W. 28, 102 Tex. 227, as cited in 26 C.J.S., Deeds, § 121 (1956)). Similarly, there can be no question that an owner of real property may authorize another to act in his place with respect to that real property (i.e., by grant of a “power of attorney” – see, General Obligations Law, §§ 5-703(1), 15-301(5)).

In the deed from the County Treasurer to Grosvenor, the words of conveyance are as follows:

Whereas pursuant to the provisions of section 151 of the Tax Law [now RPTL, § 1019], the Board of Supervisors of the County . . . did on the 13th day of December, 1938, duly pass a resolution, No. 116, authorizing the County Treasurer to sell and convey the said premises unto said John H. Grosvenor.

The deed continues, however, with the following language:

this indenture Witnesseth, that the said party of the first part, [identified as the County Treasurer] by virtue of the authority vested in him by Law and pursuant to the resolution of the Board of Supervisors, of the County . . . does sell, convey and release to said party of the second part . . . the piece and parcel of land mentioned above and which is described as follows. . . .

A description of the parcel follows with a reference to a “parcel number”, acreage and boundaries. Section 1019 of the Real Property Tax Law authorizes a county to dispose of unredeemed land within the Forest Preserve which has not been purchased by the State within six months after the expiration of the general one year period of redemption. The county may do so “as provided in [§ 1018(4)]”. Subdivision 4 of section 1018 provides that if the land is sold to the county, “the conveyance shall run to and name the county as grantee and . . . may be disposed of . . . at such times and upon such terms as shall be determined by a majority of the board of supervisors at any meeting thereof”.

Subdivision 1 of section 550 of the County Law requires a county treasurer to act generally as chief fiscal officer of the county and to “perform such additional and related duties as may be prescribed by law and directed by the board of supervisors.” While we may assume that section 550 is sufficiently broad to permit a board of supervisors to direct the county treasurer to act as its agent in the disposal of county real property (see, e.g., Cooke v. Mulligan, 81 Misc.2d 1025, 367 N.Y.S.2d 204 (S.Ct., Albany Co., 1975)), it seems clear that the purported conveyance in 1938 should have run from the county and not the county treasurer as grantor. This is so because subdivision 1 of section 215 of the County Law gives the board of supervisors “custody and control” of county real property, while subdivision 2 of that section mandates that “contracts and conveyances made by . . . the county, or on its behalf, shall be made in the name of the county” (emphasis added). The conveyance in this instance was not made “in the name of the county”.

The County Treasurer could not convey in his own title to land of the County. However, he could act as agent for the County in much the same manner as an individual holding a “Power of Attorney” may act on another’s behalf. The resolution No. 116 of the County Board adopted on December 13, 1938, is written authorization and sufficiently descriptive to satisfy the requirements of the Statute of Frauds (see, General Obligations Law, §§ 5-703(1), 15-301(5); see also, Village of Lake George v. Town of Caldwell, 3 A.D.2d 550, 162 N.Y.S.2d 762 (3d Dept., 1957), aff’d 5 N.Y.2d 727, 152 N.E.2d 668, 177 N.Y.S.2d 711 (1958)).

Given this state of facts, is this an appropriate case for the issuance of a “confirmatory deed”? Our opinion is that the 1938 deed being “voidable” as opposed to “void”, a deed in confirmation should be issued.

It has been said that “[i]t is clear . . . that there can be no valid correction or confirmation of a void deed . . .” (23 Am. Jur. 2d, Deeds, § 287 (1965); 26 C.J.S., Deeds, § 31 (1956); see also, Blevins v. Manufacturers Record Publishing Co., 235 La. 708, 105 So.2d 392 (1957)). With respect to a deed, the term “voidable” connotes “a writing that is both operative to convey the property and creative of contractual obligations unless and until set aside by the court” (23 Am. Jur. 2d Deeds, § 137 (1965); Logue v. Von Almen, 379 Ill. 208, 40 N.E.2d 73 (1941)). In contrast, the word “void” implies that a deed “is invalid in law for any purpose whatsoever, such as a deed to effectuate a prohibited transaction” (23 Am. Jur.2d, Deeds, § 137).

A mistake, albeit a material one, renders a deed “not void but voidable in equity” (Tilbury v. Osmundson, 143 Colo. 12, 352 P.2d 102, at 104 (1960)). If there has been a mutual mistake and it is apparent that “the instrument does not conform to or express [the parties’] intention or agreement . . . relief may be had in equity . . .” (23 Am.Jur.2d, Deeds, § 155 (1965)). Further, it is an accepted rule that a deed of correction or confirmation is appropriate “[w]here there is no fraud and the rights of third persons have not intervened, and equity could have reformed the deed . . .” (26 C.J.S., Deeds, § 31 (1956)).

Though most of the cases cited in the area of correction or confirmation deeds involve mistakes in descriptions of property conveyed, there are those in which the name of one or more of the parties was incorrect or omitted. For example, in Cox v. Tanner, 229 S.C. 568, 93 S.E.2d 905 (1956), substantial evidence was submitted to show that an original deed to one grantee was intended to be a conveyance to him and his wife as grantees. The court concluded that such a mistake was of the type for which a confirmatory deed was warranted, noting that there were “no third, innocent or disinterested parties in this case” (93 S.E.2d, at 909).

From an examination of the facts and documentation presented, it is our opinion that a deed of confirmation could and should be issued here. It is permissible because it is evident that:

(a) the County intended to convey its interest in this property to Mr. Grosvenor;

(b) no fraud has been alleged or proven; and

(c) there apparently are no third parties who would be adversely affected by this deed of confirmation.

As well as being permissible, however, it is essential to record title that such a deed be issued. An innocent purchaser, examining title in the county clerk’s office, would be unable to locate (in the “Grantor’s Index”) any record of a conveyance from the County since the County acquired title in 1931. This is due, of course, to the fact that the County Treasurer was designated as grantor in the 1938 deed and would, therefore, appear as the only grantor of such property in the “Grantor’s Index”.

December 17, 1980