Title Examination Standards
Chapter 1, App.
Chapter 30. Marketable Record Title Act
§30.4. Matters Purporting to Divest.

Matters "purporting to divest" within the meaning of the Marketable Record Title Act are those matters appearing of record which, if taken at face value ' warrant the inference that the interest has been divested.

Authority: 16 O.S. § 72(d); L. Simes & C. Taylor, Model Title Standards, Standard 4.4, at 26-27 (1960). Similar Standard: Mich., 1.4. Comment: The obvious case of a recorded instrument purporting to divest is a conveyance to another person. A is the grantee in a deed recorded in 1915. The record shows a conveyance of the same tract by A to B in 1925. Then B deeds to X in 1957. Although B had a thirty-year record chain of title in 1945, the deed to X purports to divest it, and B, thereafter, does not have a title. A recorded instrument may also purport to divest even though there is not a complete chain of record title connecting the grantee in the divesting instrument with the thirty-year chain. Suppose A is the last grantee in a recorded chain of title, the last deed of which was recorded in 1915. A deed of the same land was recorded in 1925, from X to Y, which recites that A died intestate in 1921 and that X is A's only heir. There is nothing else on record indicating that X is A's heir. The deed recorded in 1925 is one "purporting to divest" within the terms of the Act. This is the conclusion to be reached whether the recital of heirship is true or not. Or suppose, again, that A is the last grantee in a chain of title, the last deed of which was recorded in 1915. A deed to the same land from X to Y was recorded in 1925, which contains the following recital: "being the same land heretofore conveyed to me by A." There is no instrument on record from A to X. This instrument is nevertheless one "purporting to divest" within the terms of the Act. Suppose that in 1915, A was the last grantee in a recorded chain of title, the deed to A being recorded in that year. A deed of the same land was recorded in 1925, signed: "A by B, attorney-in-fact." Even though there is no power of attorney on record, and even though the recital is untrue, the instrument is one "purporting to divest" within the terms of the Act. Suppose that A is the last grantee in a recorded chain of title, the last deed of which was recorded in 1915. In 1955 there was recorded a deed to Y from X, a stranger to the title, which recited that X and X's predecessors have been "in continuous, open, notorious and adverse possession of said land as against all the world for the preceding thirty years." This is an instrument "purporting to divest" A of A's interest, within the terms of the Act. On the other hand, an inconsistent deed on record, is not one "purporting to divest" within the terms of the Act, if nothing on the record purports to connect it with the thirty-year chain of title. The following fact situations illustrate this. A is the last grantee in a recorded chain of title, the last deed of which was recorded in 1915. A warranty deed of the same land from X to Y was recorded in 1925. The latter deed is not one "purporting to divest" within the terms of the Act. A is the last grantee in a recorded chain of title, the last deed of which was recorded in 1915. A mortgage from X to Y of the same land, containing covenants of warranty, is recorded in 1925. The mortgage is not an instrument "purporting to divest" within the terms of the Act. Although the recorded instruments in the last two illustrations are not instruments "purporting to divest" the thirty-year title, they are not necessarily nullities. The marketable record title can be subject to interests, if any, arising from such instruments, 16 O.S. § 72(d).

History: Adopted December 1964. Printed as a part of Proposal No. 12 of 1964 Real Property Committee, 35 O.B.A.J. 2045, 2046 (1964); and see Exhibit H, id . at 2053-54. Approved, upon recommendation of Real Property Section, by House of Delegates, 36 O.B.A.J. 179, 182 (1965). All references to prior 40-year period deleted, 30 years substituted, and dates in "Comment" corrected to agree with 30year period as per direction of House of Delegates, see Minutes of House for 1977, at 93-96.