The Mad Genealogist

Deeds form the bulk and backbone of American land records. They are fairly uniform in format and content, can normally be located in routinely predictable jurisdictions—usually the county—and generally present few difficulties for the average researcher. Being one of the most important components of the workaday civil law (as opposed to criminal law), deeds contain a fair measure of legal terms. Genealogy Encyclopedia provides definitions of land of legal terms.

The term “deed” can be used broadly to mean a legal document of transfer, bargain, or contract, or narrowly for a warranty deed by which the seller warrants (guarantees) the title to the land being sold. Deed books contain many types of title conveyances and contracts: deeds in fee simple granting absolute ownership, mortgages transferring property rights as security for a debt, dower releases waiving a wife’s rights, quitclaim deeds releasing whatever title or right is held whether valid or not, deeds of gift transferring land without a reciprocal consideration except perhaps “love and affection,” powers of attorney appointing legal agents, marriage property settlements between spouses either before or after the marriage, bills of sale transferring property that is usually not land, and various forms of contracts, such as leases, partnerships, indenture papers, and other performance bonds. These last four were not ordinarily recorded, though probate bonds were common in probate volumes. Deed books from before the Civil War and especially in colonial years were more miscellaneous in their contents, even including animal brands, occasional wills, slave manumissions, apprentice papers, petitions, depositions, tax lists, and whatever else the clerk decided to preserve on a convenient page.

European settlers and their governments brought to the colonies the principle that before land could be privately owned the government had to pass title into private hands. Thus, for any tract of land there should be a first-title deed, which is normally called a grant or patent. Usually the authorities sought from the local Indian tribes a cession of Indian title, though this concept of owning land was foreign to the Indian view of communal occupancy. Once the Indian title was terminated to the satisfaction of the whites, the government could grant title for a tract to an individual, corporation, or, in the case of federal grants, even to a state. All subsequent transfers of a tract are by deed or analogous conveyance, or by inheritance.

In the United States, responsibility for guaranteeing legal title rests with the buyer and seller, who nowadays usually employ professional title searchers and lawyers to trace the chain of title back to the first-title grant if possible, attempting to verify a valid, unencumbered title transfer at each step. The government limits itself to the role of a referee—supplying the rules, recording the results, and adjudicating disputes brought to court. To simplify such title searches, title abstract and insurance companies have arisen to make professional searches and sell insurance against defective titles. Such companies have compiled indexes to title transfers in their local areas. If a genealogist can afford the high expense, such a title company could compile an ancestor’s local land records. Also, there are cases where the local deed office has been destroyed recently but abstracts survive in the private title company records.

An important fact follows from the American system of deed registrations: The records are usually sought by the names of the buyer or seller rather than the tract name or number. This means that a break in the chain of recorded owners can complicate a genealogist’s understanding of why, in the absence of a deed, John Smith now owns land that Mary Smith owned ten years ago. The land could have passed from mother to son by will with proof only in the probate records, or it could have passed by intestate probate and not be recorded at all. It could also be that the two persons are unrelated and that Mary sold the land to Paul Williams, who then sold it to John Smith, neither of the deeds being recorded, perhaps to save the cost of the clerk’s fees. Or perhaps the deed from Mary Smith to John Smith was by sheriff’s sale and indexed under the sheriff’s name as seller. Such a sheriff’s sale for delinquent taxes raises the point that tax foreclosures affecting the land would be in court records, while a bankruptcy suit might be processed in another county entirely.

A registry system called Torrens attempts to resolve some of these problems. Named for Robert Richard Torrens, the South Australian legislator who developed it in the late 1850s, Torrens ideally records in one place under the title of the tract all former owners and all rights, interests, and liens to which the property is subject. Having established the registry as mandatory and complete, the government can then issue guaranteed certificates of title to a new owner. While available in about twenty states, Torrens has not operated in the United States as intended for several reasons, including constitutional questions of right of appeal to the courts, the great expense of the registration, inadequate insurance funds to insure title guarantees, the statutory exclusion of certain encumbrances from the Torrens records, and—it is said—sabotage by private title companies and lawyers fearing loss of business.

For the genealogist, the advantage of a Torrens chain of title may be offset where the deed indexes are by tract rather than buyer and seller, a situation said to operate in parts of Iowa. Usually there are two sets of indexes, one by tract and one by buyer and seller. If there are no buyer and seller indexes, the genealogist would need to search each tract record to insure comprehensive coverage of an ancestor’s land transactions in the county. However, Torrens has never flourished in the United States, so the chances are small that the researcher will encounter this particular problem.

The variety of records in deed books requires the user to develop certain searching and abstracting skills. Because few researchers have the time to read, page by page, the forty, fifty, or one hundred volumes of deeds in an average county or independent city, the user usually turns to the index. Seller indexes are also called direct and grantor indexes; buyer indexes are indirect and grantee indexes. Some counties have alphabetical indexes only for sellers, which requires reading all index entries from A to Z to check the buyers (for example, the buyers would be listed next to the sellers, but only the sellers are alphabetized). Before relying on a deed index, it is wise to make an informal sampling of the contents of the deed volumes to see if they contain records significantly different from deeds and if these different sorts of records are indexed along with the deeds. There actually exist deed volumes containing wills omitted from the deed index and not found in the probate indexes either.

While cumulative deed indexes are usually in alphabetical order (“alpha” order), running indexes cannot be because more names are continually being added. Some running indexes merely group surnames under their first letter (initial order), so all A surnames are together (unalphabetized), all B surnames together, etc., with special pages for Mc and O’. Occasionally, a clerk ignored the patronymic prefix and indexed MacDonald, for example, with D surnames and O’Carroll under C. More elaborate running indexes were sold commercially by companies vying for sales by inventing unique, eye-catching systems. Such complicated indexing systems must be mastered when encountered, though usually there are instructions in the front of the volume. Some allocate separate pages for vowels (surnames Ba, Be, Bi . . .), some for consonants (the l-m-n-r-t system brings Chalkley, Cullison, and Czeskleba to the same page, because each has an l as the first internal “key” letter). Some running indexes use an initial surname order subdivided by initial letters of the given name (so Gregory Buck, Gary Ball, and Gertrude Brown are all on the same page).

Other problems with indexes are sins of omission—creating only a grantor index, mistakenly omitting a name, or ignoring non-deed items. This last problem is fairly common, especially in alphabetized master-deed indexes compiling all the deed volumes of the last one hundred or two hundred years. Whether the indexer will consider the barrel brand of Thomas Forehall, cooper, worth indexing is doubtful, especially because it was recorded 150 years ago and can serve no contemporary purpose. The researcher must always choose between trusting the index or checking the book or needed years page by page. Deeds with more than one buyer or seller may be indexed under the first’s name only, another reason to take the time to read page by page if the problem warrants it. There is also the occasional deed that provides information on a surname different from either the seller or buyer. On 7 May 1763, William and Betty Eskridge of Northumberland County, Virginia, sold land to Thomas Williams and, in passing, the deed gave a beautiful account of the Neale family, former owners of the land.

Having found an actual entry in the deed volume, either by using the index or by page-by-page scanning, you should have a fairly standard format for abstracting entries. It is wise to train yourself to first write down the source (or, if you have photocopied the entry, to immediately write the source on the photocopy). The source includes the archive or library where you found the record, as well as the record type, volume, and page. Below are three examples. Printed notekeeping forms help some people remember to copy such sources. Be sure also to include your name and the date when you found the record.

As for abstracting a deed, the style is up to the researcher. Find a format you like and try to standardize it within adaptable limits. Records tend to follow standard formats, which makes abstracting easier.

Some users forget that the deed book is a copy of an original paper and that, therefore, the deed book signatures are usually in the clerk’s handwriting—they are not holographs. Some jurisdictions, however, did require a signature on the copy they retained, so watch for them. Likewise, the seal—in wax and later in paper—beside the seller’s signature was real on the original; but, in the deed book, the clerk drew a stylized circle surrounding the word “seal.” The use of personal wax seals has long been out of fashion; but in the colonies, men were expected to have or borrow some sort of sealing device, which usually supplemented the illiterate’s mark. Even English peasants as early as the thirteenth century were required by law to seal their signatures; in fact, there was a time when the seal was the official attestation and the person’s mark was auxiliary. By the late seventeenth century, the seal was merely a traditional ornament. Consequently, heraldic devices on colonial seals probably do not prove a signer had a coat or arms. In fact, George Washington had a seal with a device different from the family coat of arms, a fairly typical situation.

Seals and signatures are, however, minor problems compared to late recording. Since running indexes show names in chronological order, a 1735 deed recorded in 1802 is so out of place that the researcher may not carry the search far enough to spot it. Actual examples include a deed dated 31 March 1800 and recorded 21 March 1896 in Montgomery County, Georgia, with another in the same place dated 30 December 1791 and recorded 110 years later on 30 July 1901. In the same general category are deeds re-recorded after a courthouse or town hall burned. Also be alert to indexes that show only the recording date, because behind the 1827 date could be an 1818 deed. If the ancestor died in 1823, the researcher might mistakenly conclude from the index that an 1827 deed could not be the ancestor’s.