Real Property

p BRIEF ON REAL PROPERTY PROBLEM

p ISSUE : Does a good faith purchaser for value of land conveyed to the purchaser '92s seller under an unrecorded deed from a prior grantor creating a fee simple subject to a condition subsequent take ahead of a successor in interest of the original grantor where the successor knew that his right of entry was unrecorded but took no steps to create record notice of his interest ANALYSIS : O '92s deed , with its language , '93on the condition that if said use does not commence within

6 months from this date , or having commenced , ceases , the conveyance to be null and void '94 created a fee simple subject to a condition subsequent . Although the deed speaks of X county '92s interest in the land being null and void , as if this would be automatic , X county '92s estate continued after it breached its condition until the holder of the right of entry asserted that right

This leads to the question of who has the right of entry : David or Henry ? As O '92s heir . Henry took only the interest which O held at his death : nothing . Indeed , O deeded the two acres away twice , once to X county , subject to the right of entry on the breach of the condition and again to David . Given that David has paid for the two acres is if he owned them outright , David '92s interest is clearly better than Henry '92s

Is David '92s right cut off by a good faith purchaser for value ? If X county had recorded the deed from O , the matter would be resolved simply in D '92s favor . As a purchaser , Paul takes subject to any condition of which he has notice . Notice could take any of three forms : he could have had actual notice , such as if someone from X county told him of the condition under which X county held the two acres . He could have constructive notice , such as fences , occupancy of the property , or some other condition on the property which would alert a reasonable buyer of a need to inquire . He could have had record notice , for the recording of a deed gives the world notice of the contents thereof . We must assume therefore that X county did not record its deed , otherwise Brief on Real Property Problem Page he would have been foolish to purchase

But David knew of the condition , otherwise , how would he know that he had any right to retake the land ? If David knew of the condition , he should have realized the error in his own deed : O purported to convey a present estate in 80 acres , but O did not have such an estate . Knowing that there was the flaw in his deed , David should have taken steps to correct it . He should have realized that a title search of the two acre parcel would show only that there was an unrecorded deed in that chain but only if the title search carefully...