The most fundamental and essential step in performing property surveys is to read the vesting deed or deeds of the land to be surveyed, and the vesting deeds for each adjoining tract.  If this is not done (and many surveyors do not do it), nothing else the surveyor does as far as surveying the property is likely to be correct.  In addition, the surveyor needs to research the title to the property to be surveyed to pick up easements and restrictions that affect the property.

          An obvious corollary to consulting the vesting deeds for performing surveys is to know how to interpret deed descriptions.  Part of the process of interpreting deed descriptions is knowing what constitutes a valid description and what does not constitute a valid description.  Another corollary is knowing, generally, what constitutes a properly executed deed and what does not.  A deed that is not properly executed for recording, though it may be valid as between the parties, does not provide constructive notice even if it is recorded.  The doctrine of constructive notice is one of the most important underpinnings of performing property surveys.  If a deed or other instrument does not provide constructive notice but the surveyor is aware of the deed or instrument, either because it is on record in the courthouse but improperly executed for recording, or because it is not recorded at all but a landowner informs the surveyor that he/she has it in their possession, the surveyor should acknowledge that it exists, but, necessarily, has to be in a position to deal with it from the standpoint that it does not provide constructive notice.

          I will give this simple, hypothetical example, using insufficient attestation, to illustrate:  Suppose Adam owns a lot that is square, is oriented in the cardinal directions, and that, according Adam’s deed, measures 200 feet by 200 feet.  Adam conveys the eastern part of the lot to Betty.  The deed from Adam to Betty describes the portion conveyed as “beginning at the southeast corner of [the lot], thence due west 100 feet, thence due north 200 feet to the back line [of the lot], thence due east 100 feet to the northeast corner of [the lot], thence due south 200 feet to the point of beginning.”  This description is drawn up without the benefit of a survey, no monuments are placed on the ground, and the deed contains only one witness signature.  Betty immediately records this deed in the courthouse.

          A week later Adam conveys the western part of his original lot to Connie.  The deed from Adam to Connie describes the portion conveyed as “beginning at the southwest corner of [the lot], thence due east 100 feet, thence due north 200 feet to the back line [of the lot], thence due west 100 feet to the northwest corner of [the lot], thence due south 200 feet to the point of beginning.”  This description is drawn up without the benefit of a survey, no monuments are placed on the ground, and the deed meets all the technical requirements for recording, including an official witness and an unofficial witness.  Connie, who is without actual notice of Betty’s deed, immediately properly records her deed in the courthouse.

          A week after the deed from Adam to Connie was recorded, Betty hires a surveyor to survey what she purchased from Adam.  As it turns out, Adam’s original lot, on the ground, measures only 195 feet east and west, and measures 200 feet north and south.  There is an obvious overlap between Betty’s description and Connie’s description.  If the surveyor gives Betty, his client, what her deed calls for--a lot measuring 100 feet east and west and 200 feet north and south--he is taking 5 feet of land that belongs to Connie.  This is because Betty’s deed, though recorded, failed to provide either actual or constructive notice to Connie of her (Betty’s) deed, as a result of the incomplete attestation.  The consequence is Connie’s deed takes precedence over Betty’s deed, and Betty winds up with a lot that is only 95 feet wide.

          Assume all the same circumstances except that Betty’s deed is fully validly executed, including an official witness and an unofficial witness, and except that Betty fails to record her deed altogether.  The results are the same--Betty failed to provide either actual or constructive notice to Connie so that Connie’s deed takes precedence over Betty’s deed as to the overlapping descriptions.

          In the real world the surveyor, of course, should not dogmatically survey the land based on the fact that Betty did not provide actual or constructive notice of her deed, while Connie did provide notice of her deed.  Instead, the surveyor should bring all the facts to the attention of the parties and get them to work something out.  The point is it is essential that surveyors be familiar with, among other things, the requirements for the validity of deed descriptions and the basic standards deeds must meet to provide actual and/or constructive notice, so they can recognize problems such as the one illustrated above and bring them to the attention of the parties so the matter can be addressed and resolved.

          It is very well established that an instrument not properly attested for recording but that is on record in the courthouse anyway is, legally, not recorded, and, legally, does not provide constructive notice.  If an instrument contains an insufficient description, or is improperly executed, I would have no hesitancy whatsoever about testifying to that, under oath, in court; and, in fact, I have given depositions and testified in court, under oath, as to the validity and invalidity of various deeds (none yet on proper and improper attestation, though).  In each case in which I have done so, I was asked by the attorneys to appear at a deposition or in court to testify, the attorneys specifically asked me, while I was on the witness stand, if, in my opinion, certain deeds contained sufficient or insufficient descriptions or were properly or improperly executed, and I answered “Yes” or “No”.  They usually then went on to have me explain what factors formed the basis of my opinion.  The conference room, in the case of depositions, or the courtroom, in the case of law suits, was full of lawyers, and none objected to my so testifying.

          Contrary to “land surveyors, should not ... attempt to make the legal determination that due to ... various flaws ... the right of way deed ... ‘legally, is not recorded’"--determining flaws in deeds, to the extent they exist, is part and parcel of what we do.  We could not do our job of surveying land without so doing.  For example, if we rely on a recorded deed that is flawed in such a way that it does not provide constructive notice, our survey is likely to be incorrect.  Contrary to “The fact that it [a deed] came from the deed records makes that [a flaw in the deed] an embarrassing argument to try to stand behind in court,”--it is not embarrassing at all.  Again, it is something we as professionals have to apply in our daily practice, and can and are called on to testify to in court.  Indeed, the very reason we are sometimes requested to act as expert witnesses in court is to testify that a deed or deeds "from the deed records" are flawed in such a way as to make them invalid.  Speaking generally, surveyors are the most experienced entities in applying written descriptions to the facts on the ground.  They thus are the best source for determining certain flaws in instruments dealing with land.  The courts readily and universally recognize that there are standards deeds and other instruments must meet to be legally recorded so as to provide constructive notice, and will readily accept testimony, from surveyors and other qualified expert witnesses such as title abstractors, as to whether a given instrument meets or does not meet those standards.

          Though none of the Georgia decisions put it this way, in many states the stated standard for determining the sufficiency of a description in a deed or any other writing regarding real property is: Can a surveyor, with the deed or other instrument before him, with or without the aid of called-for extrinsic evidence, locate the land and establish the boundaries?  This is the way the standard is stated in Bogard v. Barhan, 52 Ore. 121, 96 P. 673, 132 Am.St.Rep. 676 (1908), online at: https://cite.case.law/or/52/121/   Other random cases that state this standard are:

Black v. Pratt Coal & Coke Co., 85 Ala. 504 (1888),

online at https://cite.case.law/ala/85/504/

McCullough v. Olds, 108 Cal. 529, 41 P. 420 (1895),

online at: https://casetext.com/case/mccullough-v-olds

Connelly v. Smith, 97 So.2d 865 (Fla. 3d D.C.A. 1957), certiorari denied, 101 So.2d 811 (Fla. 1958),

online at: https://casetext.com/case/connelly-v-smith

Day v. Benesh, 139 So. 448 (Fla. 1932),

online at: https://www.courtlistener.com/opinion/3388836/day-v-benesh-et-ux/

Boley v. McMillan, 66 Fla. 159, 63 So. 703 (1913),

online at: https://cite.case.law/fla/66/159/

Smiley v. Fries, 104 Ill. 416 (1882),

online at: https://cite.case.law/ill/104/416/

Pennington v. Flock 93 Ind. 378 (1884),

online at: https://cite.case.law/ind/93/378/

Paynesville Land Co. v. Grabow, 160 Minn. 414, 200 N.W. 481 (Minn. 1924),

online at: https://case-law.vlex.com/vid/200-n-w-481-617914079

Swartzfager v. Saul, 213 So. 3d 55 (Miss. 2017),

online at: https://casetext.com/case/swartzfager-v-saul

Romero v. Garcia, 89 N.M. 7, 546 P.2d 66 (1976),

online at: https://law.justia.com/cases/new-mexico/supreme-court/1976/10116-0.html

Grace Building Co. v. Parchinski, 467 A.2d 94 (Penn. Comm. Ct. 1983),

online at: https://casetext.com/case/grace-bldg-co-inc-v-parchinski-et-al

Marks v. Ligonier Borough, 233 Penn. 372, 82 A. 477 (1912),

online at: https://app.midpage.ai/document/marks-v-ligonier-borough-6250915?refG=true

Yankton County v. Klemisch, 11 S.D. 170 (1898),

online at: https://cite.case.law/sd/11/170/

Harris v. Iglehart, 113 S.W. 170, 52 Tex. Civ. App. 6 (1908),

online at: https://cite.case.law/tex-civ-app/52/6/

and

Boon v. Hunter, 62 Tex. 582 (1884),

online at: https://casetext.com/case/boon-v-hunter

          What better source can be obtained as to whether a deed or other land instrument meets this standard than the expert testimony of qualified surveyors?  In most or all of the cases above, surveyors served as expert witnesses as to whether the descriptions in the instruments under consideration were sufficient to locate the land on the ground.  The basis they gave for their opinions were not “an embarrassing argument to try to stand behind in court.”  With regard to the county road right of way, it is very appropriate that a surveyor testify that the deed is insufficiently witnessed, and, in addition, testify that it is invalid due to the fact that it fails to describe the right of way with sufficient certainty for it to be located.

          Courts depend on expert testimony from many types of professionals so as to enable them to reach the best possible verdict.  Accountants provide expert testimony as to whether circumstances indicate accounting fraud or tax evasion; realtors provide expert testimony as to the value of land in condemnation cases; builders, electricians, plumbers, and structural engineers provide expert testimony as to whether a house or building has been constructed in conformity with building codes and the plans; mechanics and mechanical engineers provide expert testimony as to whether a used automobile is, mechanically, in the condition represented by the dealer; doctors provide expert testimony about the validity of medical insurance claims and medical malpractice; etc.  In each case, these professionals have to know the laws that govern their professions.  For example, accountants have to know the laws governing taxation both to carry out their routine functions and to testify in court about tax matters.  Surveyors, likewise, have to know the laws dealing with their profession.

          Mark states “[C]ompetent title attorneys who could grasp and talk about matters like this [the defective deed for the county road] are almost nonexistent in most parts of the state, so we are often doing our clients and the public a disservice when we send them to consult with an attorney.”  If the parties--the landowner and the county in this case--are not going to get an attorney to draw up corrective deeds in proper form and to otherwise do the steps necessary to get this road properly defined, then who is?  If the parties--the landowner and the county or whoever--do not know a competent attorney, they might ask the surveyor for recommendations.  Surveyors deal with real estate attorneys all the time and know which ones are competent and which ones are incompetent, so they are in a good position to make recommendations.  In my own experience, hardly a week passes that someone doesn’t call and ask me for recommendations for attorneys to do closings and to handle other real estate matters.  It happens so often that I have lists of attorneys, broken down by counties, along with their respective contact info, in my computer, that I e-mail to the persons who request such information.  Every attorney on the lists is someone I have personally dealt with and therefore know something of their qualifications.  Given all of its defects, it is likely that this deed for the county road right of way was drawn up WITHOUT the assistance or supervision of an attorney.

          With regard to this deed for the county road right of way, the first thing that caught my eye about it when I looked at it in the Samsog Message Forum post was its lack of an unofficial witness signature.  Here are the recent Georgia cases dealing with the specific issue.  All of them concern improperly attested security deeds, but the same standard applies to all types of deeds, whether warranty deeds, limited warranty deeds, security deeds, quitclaim deeds, etc.:

In re Fleeman, 81 B.R. 160 (Bankruptcy M.D. Ga. 1987), online at: https://casetext.com/case/matter-of-fleeman

          This case involved a security deed recorded in the courthouse that had the signature of an official witness, but no other witness signatures (the same situation as the deed for the county road right of way that is in the Samsog Message Forum post).  The court held: “[T]o be admitted to record, a deed to secure debt must be attested by one official witness and one unofficial witness. O.C.G.A. § 44-14-33 (1982).  Under Georgia law, a recordation on insufficient attestation is equivalent to no recordation at all and the recording of an improperly attested deed is a mere nullity.  [Cites cases.]  Recordation of an improperly attested deed to secure debt does not provide constructive notice of the contents or existence of the deed. [Cites cases.].”

Wells Fargo Bank, N.A. v. Gordon, 292 Ga. 474, 749 S.E.2d 368 (2013), online at: https://casetext.com/case/wells-fargo-bank-617

          This case involved a recorded security deed that had the signature of an official witness, but no other witness signatures (the same situation as the deed for the county road right of way that is in the Samsog Message Forum post).  The court held: “In order for a security deed to be in recordable form, it must be attested by an official witness and an unofficial witness. O.C.G.A. §§ 44–14–61 and 44–14–33.  Specifically, O.C.G.A. § 44–14–33 provides that a security deed ‘must be attested by or acknowledged before an officer as prescribed for the attestation or acknowledgment of deeds of bargain and sale; and, in the case of real property ...  must also be attested or acknowledged by one additional witness.’ ...  A deed that is not properly attested is ineligible for recording....  The recording of a properly attested security deed serves as constructive notice to all subsequent bona fide purchasers. O.C.G.A. § 44–14–33.  In this case, because the eight-page security deed lacked the signature of an unofficial witness, it was not in recordable form as required by O.C.G.A. § 44–14–33 and did not provide constructive notice. [Cites cases.].”

Trauner v. First Tennessee Bank National Association, 544 B.R. 913 (N.D. Ga. 2016),

online at: https://casetext.com/case/trauner-v-first-tenn-bank-natl-assn-in-re-simpson

          The security deed at issue had the signature of an unofficial witness and had a defectively drawn acknowledgment that contained the signature of a notary, along with the notary seal.  The defect in the acknowledgment was that it did not have a date.  The instrument was recorded in the courthouse.  An acknowledgment that is valid in form and properly signed and sealed can serve the same purpose as an official witness.  In this case, however, because the acknowledgment was defective as a result of the omission of the date, the signature and the notary seal it contained could not serve the purpose of an official witness, and thus the instrument was held insufficient to provide constructive notice.

          This gets rather technical, but, given the matter under discussion, it should be mentioned.  With regard to notice, the courts draw a distinction between a recorded deed that contains a patent defect and a recorded deed that contains a latent defect.  A patent defect is a defect that is apparent on the face of the instrument, such as the lack of witness signatures.  A latent defect is one that is not apparent on the face of the instrument, such as “witness” signatures that are proper in form but were made by fictitious or disqualified persons.  A recorded instrument that contains a patent defect does not constitute constructive notice.  A recorded instrument that contains a latent defect does constitute constructive notice.  I won’t get into the specifics as to the reasoning behind this.  The question came up only fairly recently in Georgia, and here are the two cases, to date, that deal with it:

Sears Mortgage Corporation v. Leeds Building Products, 219 Ga.App. 349, 464 S.E.2d 907 (1995); certiorari to Supreme Court Leeds Building Products v. Sears Mortgage Corporation, 267 Ga. 300, 477 S.E.2d 565 (1996),

online at: https://casetext.com/case/leeds-building-products-inc-v-sears-mortgage-corp

          A builder purchased construction materials on credit for homes it was building.  It secured the purchases with a series of security deeds on the homes.  The security deeds were executed in the presence of an official witness who signed and attached a notary seal, but no unofficial witness signed.  Later, and out of the presence of the parties, a company official had a person to sign each of the security deeds as an “unofficial” witness.  The instruments were recorded in the courthouse.  For a person to be a proper witness to a signing, they must actually see the person sign the instrument.  In this case, because the “unofficial witness” did not see the party sign the instruments, there was improper attestation--a latent defect.  The instruments were held to constitute constructive notice, however, because they were recorded and the defect was latent, not patent.

U.S. Bank National Association v. Gordon, 289 Ga. 12, 709 S.E.2d 258 (2011),

online at: https://casetext.com/case/us-bank-natl-ass-v-gordon

          The recorded security deed in question had no witness signatures at all.  The court held that it thus did not constitute constructive notice.  The question of patent defects and latent defects in attestation is discussed.

          For a detailed overview of the doctrine of notice in Georgia with regard to recorded but improperly attested deeds see: Lesley Rowe, "Casenote: The Decline and Fall of Constructive Notice," Mercer Law Review 65 (2014): 1203-23,

online at: https://ursa.mercer.edu/bitstream/handle/10898/9533/65_65MercerLRev1203%28Summer2014%29.pdf?sequence=1&isAllowed=y

          With regard to Mark’s statement “I don't think that your client ‘will have to get the road properly defined...’"--the reason most people get their land surveyed is so they can know where their boundaries are on the ground.  What if this landowner plans to put up a fence along the county road, or build a building close to or at the right of way line?  The surveyor is doing a disservice by not pointing out the problems about locating this right of way and pointing to solutions.

          With regard to the suggestion that the right of way shown on the 1957 plans be denoted with “a light dashed line, properly noted” on the surveyor’s plat, the deed is dated two years BEFORE the date of the plans, and the deed does not call for the plans.  It is a fundamental rule of law that a plat or other extrinsic matter not called for or referred to in a deed cannot be considered in interpreting the deed.  Although the courts are very liberal as to what language in deeds is admissible so as to incorporate plats and other extraneous matter into the deeds, I don’t think in this case the 1957 right of way plans can possibly be admissible.  How can a deed that is dated two years before the plans were drawn up possibly call for the plans?  Showing “light dashed lines” on a plat based on those right of way plans, given the defects described in the post for the plans, is guessing at matters.  More importantly, it is unprofessional to rely on right of way plans that are inadmissible in the first place.  As stated in my previous post, the deed and plans should be referenced on the plat, along with a note as to their defects, but this is mainly to indicate that the surveyor was aware of them, and, necessarily, rejected them.

          Mayor &c. of Athens v. Gregory, 231 Ga. 710, 203 S.E.2d 507 (1974), online at  https://law.justia.com/cases/georgia/supreme-court/1974/28434-1.html  deals specifically with one of the issues involved in the attempted conveyance of the right of way for the road in Fannin County, described in the post "Right-of-way Deed" dated 11/1/2021, and described in the post above.  In the Gregory case, Gregory signed a deed that purported to convey an easement to the city of Athens for a sewer line.  The deed itself gave an insufficient description but referred to an "attached plat."  There was no plat attached.  About the time the deed was signed, a plat for the sewer easement had been prepared by the city, it was revised several weeks after Gregory signed the deed, and the revised plat was then recorded by the city in the courthouse.  The plat was not attached to the deed at the time of the signing and it seems Gregory knew nothing of the plat until sometime later.  The court held the attempted conveyance to be entirely void because the description in the deed was insufficient and the plat could not cure it because the plat was not attached to or made a part of the deed.

          In Washington v. Brown, 290 Ga. 477, 722 S.E.2d 65 (2012), online at https://casetext.com/case/washington-v-brown-29  Brown acquired a piece of land by a warranty deed.  When Brown recorded her deed, she also recorded, at the same time, a plat that encompassed the land described in her deed and also encompassed a small sliver of land that was not described in her deed but that was included in the description of the deed of the adjoining landowner.  Brown's deed did not call for or refer to the plat.  A dispute erupted over the ownership of the sliver of land included in the plat but not included in Brown's deed description.  Among other things, Brown attempted to claim title to the disputed area by adverse possession under color of title.  The court held:

"[I]t is undisputed that the legal description of the property contained in Brown's deed does not include the disputed property.  As such, she could not be the owner of this disputed property by deed, nor could she claim to have held color of title to the property through this deed....  [T]he description in a deed to realty introduced as color of title will not be extended beyond its terms because of a belief by the holder under it that it covered land not embraced in that description, nor because of any unexpressed intention in the mind of the grantor that it should cover land not described in the deed itself....  The fact that a plat was filed with Brown's ... deed does not change the result, as the filing of a plat does nothing to change the actual legal description of property contained within a deed itself....  At most, the plat filed with the deed here would only represent evidence that Brown was led to believe that the deed 'covered land not embraced in [the legal] description' contained in the deed....  Again, this is insufficient ... to show that Brown could make any claim to the disputed property--even under color of title."

          The main relevance of this case to the Fannin County road situation is that, though Brown's deed was entirely valid, a plat not called for in a conveyance is inadmissible.