Title Examination Standards
Chapter 1, App.
Chapter 7. Marital Interests
§7.2. Marital Interests and Marketable Title.

1. A. The body of the instrument contains the grantor's recitation to the effect that the individual grantor is unmarried; or B. The individual grantor's spouse, identified as such in the body of the instrument, subscribes the instrument as a grantor; or C. The grantee is the spouse of the individual grantor and that fact is recited by the grantor in the body of the instrument.

   Comment: 1. There is no question that an instrument relating to the homestead is VOID unless both husband and wife subscribe it. Grenard v. McMahan, 441 P.2d 950 (Okla. 1968). It is also settled that husband and wife must execute the same instrument, as separately executed instruments will both be void, Thomas v. James , 84 Okla. 91, 202 P. 499 (1921). It is essential to make the distinction between a valid conveyance and a conveyance vesting marketable title when consulting this standard.

2. 2. While 16 O.S. § 13 states that "The husband or wife may convey, mortgage or make any contract relating to any real estate, other than the homestead, belonging to him or her, as the case may be, without being joined by the other in such conveyance, mortgage or contract," joinder by husband and wife must be required in all cases due to the impossibility of ascertaining from the record whether the property was or was not homestead or whether the transaction is one of those specifically permitted by statute. See 16 O.S. §§ 4 and 6 and Okla. Const. Art. XII, §2. A well-settled point is that one may not rely upon recitations, either in the instrument or in a separate affidavit, to the effect that property was not the homestead. Such recitation by the grantor may be strong evidence when the issue is litigated, but it cannot be relied upon for the purpose of establishing marketability. Hensley v. Fletcher, 172 Okla. 19, 44 P. 2d 63 (1935).

3. 3. If the individual grantor is unmarried and the grantor's marital status is inadvertently omitted from an instrument, or if two grantors are married to each other and the grantors' marital status is inadvertently omitted from an instrument, a title examiner may rely on an affidavit executed and recorded pursuant to 16 O.S. § 82 which recites that the individual grantor was unmarried or that the two grantors were married to each other at the date of such conveyance.

   Caveat: The recitation may not be relied upon if, upon "proper inquiry", the purchaser could have determined otherwise, Keel v. Jones, 413 P.2d 549 (Okla. 1966).

4. 4. A non-owner spouse may join in a conveyance as part of a special phrase placed after the habendum clause, yet be omitted from the grantor line of a deed, and still be considered a grantor to satisfy paragraph B. of this title standard.Melton v. Sneed, 188 Okla. 388, 109 P. 2d 509 (1940).

Except as otherwise provided in Standard 7.1, no deed, mortgage or other conveyance by an individual grantor shall be approved as sufficient to vest marketable title in the grantee unless:

Adopted November 4, 1983, by House of Delegates on recommendation of the 1983 Committee on Title Examination Standards, 54 O.B.J. 2379-80 (1983), and approval of the Real Property Section, November 3, 1983. Section B added to the standard by recommendation in the Report of the 1986 Title Examination Standards Committee, 57 O.B.J. 2677-78 (1986), approval of the Real Property Section, November 20, 1986, and adoption by the House of Delegates, November 21, 1986. The 2003 Report of the Title Examination Standards Committee, 74 O.B.J. 2801 (10/11/03) recommended amending this standard for clarification and to reflect the finding in Melton v. Sneed, 188 Okla. 388, 109 P.2d 509 (1940). The Real Property Section approved the recommendation on November 13, 2003, and the House of Delegates adopted the amendment on November 14, 2003, 74 O.B.J. 3231 (11/22/03).