Q: Any Alabama real estate lawyers in the house. I need a question answered.
i gave my mother some property through a quit claim deed. The deed was simple.The wording in the deed said sell or convey..quitclaim,etc to my mother. A few months later we found out alabama says a quitclaim deed shouldnt have this wording in it. My question is does this make it invalid?
A:
No, that alone would not make the deed invalid. However, without seeing the deed its not possible to tell for certain whether there's anything else wrong with it, or exactly what kind of title was passed. Assuming that the deed is in proper form and was executed and acknowledged or witnessed in the manner required by law, what you appear to have created may be a warranty deed. The use of certain words in the granting clause determine whether a deed is a warranty deed or a quitclaim deed. This is the Alabama statute implicated by your question.
Section 35-4-271, Code of Alabama, 1975
Construction of words "grant," "bargain," or "sell"; when covenants of warranty implied.
In all conveyances of estates in fee, the words "grant," "bargain," "sell," or either of them, must be construed, unless it otherwise clearly appears from the conveyance, an express covenant to the grantee, his heirs and assigns, that the grantor was seised of an indefeasible estate in fee simple, free from incumbrances done or suffered by the grantor, except the rents and services that are reserved; and also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by the express words of such conveyance; and the grantee, his heirs, personal representatives, and assigns may, in any action, assign breaches, as if such covenants were expressly inserted.
So the use of the word sell (or the word 'grant', or the word 'bargain') would create the warranties (the statute uses the word 'covenant', which is the same thing for purposes of this discussion) set forth in the statute, but the addition of the word 'quitclaim' makes the instrument ambiguous as to whether warranties were intended. But ambiguous or not, if you had title and all the other formalities of deeds were complied with, then your mother now has whatever title you had, if any. The issue will only arise if the title is defective and your mother sues you for that reason. If that occurs the court, after considering all the facts surrounding the execution of the deed, will determine whether it is a warranty deed or a quitclaim deed. If its a warranty deed, your mother would probably win such a suit. If its a quitclaim deed, you would probably win.
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