Chaper 49 Ancient Deeds

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Chapter 49

Ancient Deeds


 In the case of Busken v. AmSouth Bank, 504 So. 2d 231 (Ala. 1987), the Alabama Supreme Court considered the presumptions that arise from ancient deeds and the admissibility predi­cates that must be laid for those deeds. Busken involved a title dispute over severed coal interests, where neither claimant was in actual possession of the coal. Both claimants derived their interests from deeds that were dated prior to 1935, with AmSouth Bank claiming under a 1934 receiver’s deed. That deed was attacked on the grounds that there was no evidence of a judicial confirmation of the sale by the receiver. AmSouth produced the court order that gave the receiver the authority to transfer the interests to AmSouth's predecessor in title, and the receiver’s deed recited the confirmation of sale. The court held that the order establishing the power of the receiver to sell the property and the deed recitation of the confirmation of sale were sufficient to allow the admission of the deed and to give effect to the conveyance. The court further listed the following matters involving ancient deeds:

(1) An ancient deed must be thirty years old or older.
(2)The recitals of ancient deeds that have not been executed under judicial authority are prima facia evidence of the recited facts.
(3) Ancient deeds that have been executed under judicial authority are admitted only if record proof of the authority is produced.
(4) Ancient deeds executed under a power of attorney are admitted only when the power is recorded or where the power is produced.
(5) Although courts of other jurisdictions require production of an order confirming a judicial sale, Alabama will admit a deed arising from a judicial sale where: (i) the deed is ancient; (ii) a copy of the order authorizing the sale is introduced; and (iii) the deed recites the confirmation of the sale.

 Busken illustrates the problems that can arise in following generations where the lawyer does not record all the documents necessary to validate a judicial sale of property. Recording the order authorizing a sale, the order confirming a sale, and a deed containing recita­tions of the orders will eliminate the necessity for a lawsuit such as Busken.

 Busken also involved an ancient tax deed. The revenue act that was in force at the time of the tax sale required thirty days' notice before the day of sale. The thirty day period commenced upon the first day of publication. The tax deed in Busken showed on its face that the tax sale occurred twenty-seven days after the decree for the sale. Finding that the thirty days' notice was not given, the Court held that the tax deed was invalid.


Copyright 2011 by Edward G, Hawkins. All rights reserved.