Tuesday, August 18, 20206
Land, Title and Ownership in America at 250 Series
The public recordation system had done exactly what Americans asked it to do. It had grown; it had successfully scaled while remaining local.
As land changed hands across the growing nation, each generation added to the one before it. Deeds were recorded. Estates passed property to heirs. Easements were granted. Judgments attached. Parcels were divided, combined and described in new ways.
While those public records were preserving the literal history of the land, understanding that history and what it meant in practical terms required a growing level of skill.
I think of it a little like learning to read music. The notes on the page are available for anyone to see. Once you learn the language, those same marks begin to reveal instructions, relationships and patterns. You understand what belongs together, and with experience, you recognize when something doesn’t fit.
Land records developed their own kind of language and grammar; their own equivalency of musical scales and phrases.
A deed gained additional meaning from its place in a succession of conveyances. A mortgage reflected the ownership interest against which it was given. A release extinguished an earlier interest. Names, dates, legal descriptions and gaps, everything in the record became pieces of a larger story, each one a stanza stacked together to complete a song.
Someone had to learn to read it, to write the song or story of a property. Searching, conveyancing, abstracting and legal examination developed alongside one another, and the people doing the work did not always occupy the distinct roles we would recognize today.
An early history of the abstract business described the abstract itself as an evolution from the work of the lawyer. A client wanted to know the condition of the property’s title. The lawyer gathered the original documents that were available, went to the public records for what was missing, and made notes or copies of what was found. Over time, those compilations developed into the abstract of title.
The abstract took a property’s history, scattered across public books and indexes, and assembled it into a single and comprehensive record that could travel with the property.
I still have several old abstracts from properties that belonged to my own family. If you’ve ever held one, you know they don’t feel like temporary and ultimately disposable closing paperwork. They can be substantial records, filled with decades (sometimes centuries) of transactions, legal descriptions, notes and continuations. One owner passed the physical abstract to the next, and new transactions could be added as the title progressed forward.
There was very good reason to protect it. Someone had already paid for the substantial work required to reconstruct that history. If the abstract was lost, damaged or unavailable, an owner could face the cost of having that work reconstructed from the public records. Continuing an existing abstract was considerably easier and less expensive than rebuilding the history from scratch.
As the record grew, so did the knowledge required to work with it. The roles weren’t yet as neatly divided as they would later become. Lawyers might search and abstract their own titles, while experienced abstractors and conveyancers necessarily acquired considerable knowledge of real estate law. Over time, the work began to specialize. Reconstructing the title from the public record became an expertise of its own, as did examining that history, identifying defects and determining what was necessary to cure them.
And curing those defects had consequences beyond the transaction at hand. In a recent Keys to Real Estate conversation, TJ Harrington used a phrase for this work that has stuck with me. Title professionals, he said, are “keeping the streets clean.”
I like that description. When someone identified a defect and properly cured it, the problem stopped traveling with the title. The next buyer, lender or title professional inherited a cleaner chain because someone earlier had done the work.
Over time, thousands upon thousands of those individual acts of examination and cure became part of the integrity of the larger property system. Someone writing right in the middle of this development understood where things were headed.
In 1868, Pennsylvania Supreme Court Justice George Sharswood described conveyancing as a business of “great importance and responsibility.” He wrote that it required an understanding of real property law along with substantial practical knowledge acquired through experience. As American titles became more complex, he anticipated a growing need for educated people with specialized study to devote themselves to the work.
More than 150 years later, his observation holds up pretty well. The work continued to specialize, while the tools for doing it kept evolving. Typewriters joined the courthouse books and handwritten abstracts. Title plants gathered records and prior work in one place. Microfilm made mountains of paper more manageable. Computers changed searching again, followed by digital records and today’s increasingly sophisticated search technology. We can’t yet imagine how AI will change the process.
Yet through all those changes, title professionals continued learning the language of the record, applying the law and experience to it, and cleaning up problems along the way.
There is one more interesting detail about Justice Sharswood’s observation.
He made it while writing the opinion in an 1868 Pennsylvania case called Watson v. Muirhead. The case involved a conveyancer, a title search, a judgment lien and a professional conclusion that turned out to be wrong.
That story will take us into the next chapter of how the modern American title industry came to be.
Until Next Time,
Mary Schuster
Chief Knowledge Officer
October Research, LLC