The term “deed” is defined in early Indiana law:

In its legal sense, a “deed” is an instrument in writing, upon paper or parchment, between parties able to contract, subscribed, sealed and delivered; but by an act approved December 23d, 1858, a seal or ink scroll is no longer necessary to the validity of a deed, in this State.^[1]

The full history of the document is a subject of some debate in scholarly works. However, regardless of the actual provenance of the deed, like many things in real property, the deed has a long history in the common law of England and the United States. For instance, a brief search produced a pre-revolutionary case, which discussed a deed as follows:

This defendant admits that Thomas Bordley and Thomas Larkin in the information mentioned, did, for the consideration of 16,000lbs. of tobacco, purchase from Lancelot Todd, heir at law of the said Thomas Todd, a tract of land called Todd’s Pasture, also the tract of land called Todd’s Harbour, also the tract of land surveyed in 1651, and granted as aforesaid to the said Bordley and Larkin, and also another tract of land called Todd’s Range, by a deed bearing date the 10th of March, 1713, duly executed, acknowledged and recorded….^[2]

There are characteristics of the deed discussed in this excerpt that will continue to be important, namely that the deed in question was “executed, acknowledged, and recorded.” In his famous Commentaries on American Law, first published in 1826, James Kent states that a “deed, duly executed, must be written on paper or parchment and signed, sealed, delivered, and recorded.”^[3]

In Indiana, deeds formed part of property law since the founding of the State. For instance, a question as to whether recording a deed affects its validity was considered by the Supreme Court of Indiana in 1822:

The legal title to the land was vested in Shepherd by the execution of the deed agreeably to the laws of Virginia and did not depend on any act of Congress for its validity. The design of recording a deed is not to vest a title in the grantee; and a neglect on his part to have it recorded, does not destroy or make void a title once vested.^[4]

[1] Am. Ins. Co. of Chicago v. Avery, 60 Ind. 566, 572 (1878)

[2] Dulany v. Jenings, 1 H. & McH. 92, 112 (Md. Ch. 1738) (emphasis added)

[3] Kent, James. Commentaries on American Law. United States, vol. IV, p. 449, 1844.

[4] Henthorn v. Doe ex dem. Shepherd, 1 Blackf. 157, 162 (1822)

As noted in the Am. Ins. Co. case, supra, Indiana defines the requirements for a valid deed by statute.  Pursuant to Indiana Code § 32-21-1-13:

Except for a bona fide lease for a term not exceeding three (3) years, a conveyance of land or of any interest in land shall be made by a deed that is: (1) written; and (2) subscribed, sealed, and acknowledged by the grantor (as defined in IC 32-17-1-1) or by the grantor's attorney.

You will note that these statutory requirements are very similar to those set forth in Kent’s Commentaries, early Indiana cases, and even colonial cases predating the Revolution. Not a great deal has changed regarding deed requirements in three hundred or so years.

In the following sections, we will discuss ownership of land taken by five types of deeds: warranty deed, special warranty deed, quitclaim deed, trustee / executors deed, and finally, sheriff’s deed. There are several other types of deed, but these are the most common, and therefore, the types you may be asked to review or draft in practicing as a paralegal, especially in real estate practice, estate planning, or assisting in title searches or related work. Finally, the person who transfers land to another may be known by various names (conveyor, seller, etc.), but such a person will be referred to by the generic term “grantor” for the remainder of this book. Similarly, a person getting title to land is known by other terms (purchaser, etc.), but such a person will be referred to by the generic term “grantee” for the remainder of this book.

As you might guess if you think about it, there are different types of deeds for different situations. In this section, we will look at general warranty deeds, special warranty deeds, quitclaim deeds, trustee's and executor's deeds, and sheriff's deeds. 

Ownership by warranty deed gives the owner of property the most security in the property. The term “warranty” should give you a clue here, as the sense in which it is used in real property is not far off that in which it is used related to purchase of merchandise. For instance, in the sense with which you may be the most familiar, a “warranty” is an “” Similarly, a “warranty deed” (sometimes called a “general warranty deed”) means that the grantor makes certain guarantees about the title of the land.

In order to transfer by warranty deed, the deed must be in the form set forth in statute; in Indiana, this is also called “conveyance in fee simple”. Indiana Code § 32-17-1-2(a) states:

A conveyance of land that is: (1) worded in substance as “A.B. conveys and warrants to C.D.” (insert a description of the premises) “for the sum of” (insert the consideration); and (2) dated and signed, sealed, and acknowledged by the grantor; is a conveyance in fee simple to the grantee and the grantee's heirs and assigns with a covenant as described in subsection (b).

The term “covenant” here refers to certain guarantees given by a grantor when transferring by “conveyance in fee simple.” Such a deed represents a promise that:

[T]he grantor: (1) is lawfully seized of the premises; (2) has good right to convey the premises; (3) guarantees the quiet possession of the premises; (4) guarantees that the premises are free from all encumbrances; and (5) will warrant and defend the title to the premises against all lawful claims.^[1]

It is worthwhile to explore each of these in some detail, so you are familiar with the meanings which lie behind the warranties. However, you should note that, as we review the covenants, they somewhat run together; in other words, while separate in name, these covenants really refer to the idea of complete ownership of land, and a guarantee that the new owner owns the land without interference.

Lawfully Seized of the Premises

In legal history, someone was said to be “seized” or “seised” of land when they had possession of that property. The term is ancient, potentially coming into the English language via either Middle English or Old French; certainly, it has existed in American law since the Founding. For instance, John Adams argued for inclusion of the following regarding senatorial election:

Provided, nevertheless, that no person shall be capable of being elected as a senator, who is not of the Christian religion, and seised in his own right of a freehold within this commonwealth, of the value of three hundred pounds at least...[2]

While originally this term had many implications for feudal law and ceremony, at present, it simply means that the person selling or conveying the land in question owns legal title to it and has not stolen or otherwise acquired interest in the property illegally.

Good Right to Convey the Premises

“Good right to convey” means that the present owner, in addition to being the lawful owner, also has the legal right to sell or convey the property in question. This is closely linked to lawful seisen, as the former will usually imply the latter.

Quiet Possession of the Premises

Upon first reading the term “quiet possession” (sometimes also called “quiet enjoyment”) some assume that it has something to do with noise. It does not.  Quiet possession means that the new owner will not be challenged by any other person with claims to the property. Black’s Law Dictionary states that “quiet enjoyment” means:

A covenant, usually inserted in leases and conveyances on the part of the grantor, promising that the tenant shall enjoy the possession of the premises in peace and without disturbance, is called a covenant “for quiet enjoyment”.

There are few, if any, Indiana cases which deal with a breach of the covenant of quiet possession, at least in covenants of title. However, there are several cases which deal with the breach in a lease. Essentially, a breach of this covenant in a lease means that the landlord takes an action which interferes with the rightful lease of the property so that the tenant is evicted.

What will constitute a breach of the covenant for quiet enjoyment was defined in Upton v. Townend, 17 C. B. 64: “I think it may now be taken to mean this: not a mere trespass and nothing more, but something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises.^[3]

In essence, the covenant of quiet possession is a guarantee that the owner will keep possession of the land, not title of the land, though the challenge to possession may come under a challenge to title. As noted in another Indiana case:

However, it has long been held that the covenant of warranty is a future covenant which is not breached until the grantee is evicted from the property, buys up the paramount claim, or is otherwise damaged. Nothing is more generally or more truly said then that ‘An eviction is necessary to a breach of the covenants for quiet enjoyment and of warranty.’^[4]

Convey Unencumbered Title

This covenant is essentially that the title to land, upon transfer, will be free from any claims against the land, such as liens, mortgages, etc. In a day and time when most real property is purchased using mortgages, and when judgment and tax liens freely attach to land without difficulty, this is an important covenant. For instance, the Court of Appeals dealt with this question in terms of IRS tax liens, concluding that:

From the moment the tax assessments were made on November 11, 2002, the real property in question became encumbered. See 26 U.S.C. §§ 6321, 6322. It is a breach of warranty to convey title that is not free from all encumbrances. See I.C. § 32–17–1–2(b)(4) ...Accordingly, the undisputed facts show Kelly breached his warranty to convey unencumbered title to the Grays, and National is entitled to judgment as a matter of law.^[5]

As noted above, the encumbrance in question could take many forms. For instance, in the following case, the Court of Appeals held:

It is undisputed that the Hudsons conveyed the real estate to McClaskey by warranty deed. Under a warranty deed, the transferor guarantees that the real estate is “free from all encumbrances and that he will warrant and defend the title to the same against all lawful claims.” IND.CODE 32–1–2–12.1 The existence of a highway easement constitutes a breach of a covenant against encumbrances. In the present case, the real estate was encumbered by a highway easement in favor of the State. The Hudsons' deed failed to reveal the existence of this easement. Thus, as a matter of law, the Hudsons breached their warranty of title.^[6]

Will Warrant and Defend

This covenant essentially means that the grantor will be part of any court case where she, he, or it may have breached another covenant. This may also result in the grantor paying part of the attorney fees of the grantee as well; whether or not this happens depends on how the case proceeds. For instance:

Because the Buckners were successful on their adverse possession claim, it follows that the Weyhriches breached their warranty of title to the Rieddles. The transferor by means of a warranty deed guarantees that the real estate is free from all encumbrances and that he will warrant and defend the title to the same against all lawful claims….Because the Weyhriches refused to defend the Rieddles' title against the Buckners' adverse possession claim, the Rieddles argue that they are entitled to reimbursement of $16,225 in attorney's fees, $720 in legal expenses, and $182.68 in personal litigation expenses, to defend their title against the Buckners….we adopt the result in Rauscher, and hold that only the reasonable attorney's fees and expenses the grantee expended in defending title are recoverable from the covenantor for breach of warranty of title.^[7]

In essence, the grantor refused to defend against their own breach of the warranty of freedom from encumbrances, the Court of Appeals awarded “reasonable” attorney fees to be paid from the grantor to the purchaser. However, note that the statute requires the grantor to defend against “lawful claims;” therefore, bad or unlawful court actions do not require the grantor to defend title.

[1] Ind. Code § 32-17-1-2(b).

[2] Adams, Charles Francis, editor. “Chapter II - On Government.” The Works of John Adams, Second President of the United States, by John Adams, vol. 4, Little, Brown, 1851.

[3] Avery v. Dougherty, 102 Ind. 443, 2 N.E. 123, 126 (1885)

[4] Outcalt v. Wardlaw, 750 N.E.2d 859, 863 (Ind. Ct. App. 2001)

[5] Kelly v. Nat'l Attorneys Title Assur. Fund, 955 N.E.2d 224, 227-28 (Ind. Ct. App. 2011)

[6] McClaskey v. Bumb & Mueller Farms, Inc., 547 N.E.2d 302, 304 (Ind. Ct. App. 1989).

[7] Rieddle v. Buckner, 629 N.E.2d 860, 864 (Ind. Ct. App. 1994)

The grantor may also choose to limit the above warranties by using specific language excluding them. When reading or drafting a deed, it is important that one be aware of whether all warranties are intended, or whether the grantor only wishes certain guarantees. This is important in potential litigation. For instance, as one Indiana case has noted:

Centex conveyed the property to House by special warranty deed. A warranty deed normally contains covenants of seisin, right to convey, freedom from encumbrances, quiet enjoyment, and warranty. If the usual covenants are limited, the deed is known as a “special warranty deed.” Centex's deed contains only the covenant of warranty: The Grantor [Centex], herein and its successors shall warrant and defend the title to the above described real estate to Grantee [House], [his] successors and assigns, against the lawful claims and demands of all persons claiming by, through or under Grantor but against none other.^[1]

So, whenever you see some, but not all, of the statutory deed warranties, you are dealing with a “special” warranty deed. When you are drafting a deed or comparing one against a sales agreement, it is important to note whether the deed language and the sales agreement match.

[1] House v. First Am. Title Co., 883 N.E.2d 197, 200-01 (Ind. Ct. App. 2008)

You will often see quitclaim deeds in situations where the grantor and grantee are related, have been in a prior relationship (such as former co-owners), or in other situations where the history of the property is known to both parties. This is because a quitclaim deed has no guarantees, whatsoever. Therefore, if the grantee ended up with a property with an unknown tax lien, the grantee would be out of luck with regards to property warranties.

Succinctly, a quitclaim deed transfers whatever interest the grantor has in the property, without any guarantees as to the nature of that interest. Therefore, if the grantor has previously sold the property to another, the quitclaim deed does not even transfer ownership. As noted in this Indiana case:

That a quitclaim deed conveys only the estate or interest held by grantor at the time of its execution, is a principle so well established as to broach no argument. It is equally established that such a conveyance executed after the grantor has parted with title vests no interests or title in the quitclaim grantee. Such deed does not even convey color of title.^[1]

There is one exception to this rule, which is called the “bona fide purchaser for value” rule. Essentially, this rule gives some protections to someone who purchases land without knowing that it has been previously sold to another, and who has paid consideration (“value”) for it.

[1] Coons v. Baird, 148 Ind. App. 250, 257, 265 N.E.2d 727, 731-32 (1970)

A trustee is the entity (be it an individual or business) that manages a trust. As a quick detour, a trust is a legal entity that is defined in several (related) ways in Indiana law, namely:

A trust is a fiduciary relationship between a person who, as trustee, holds title to property and another person for whom, as beneficiary, the title is held;^[1] (or)

A trust may be defined as a property right held by one party for the use of another;^[2] (or)

[A]n equitable right, title, or interest in property real or personal, distinct from the legal ownership thereof; that the legal owner holds the direct and absolute dominion over the property, but the income, profits, or benefits thereof, though in his hands, belong wholly or in part to others).^[3]

Basically, a trustee manages the property owned by a trust for the benefit of other people or entities. Therefore, a trustee’s deed is a deed transferring ownership of real property out of a trust.

An executor is an individual who is charged with collecting assets of a deceased individual after that individual’s death and transferring those assets pursuant to a will or intestacy statutes. In Indiana, this individual is more commonly known as a personal representative, and therefore, the instrument of transfer is a personal representative’s deed.

[1] Ind. Code § 30-4-1-1

[2] Keplinger v. Keplinger, 185 Ind. 81, 113 N.E. 292, 293 (1916)

[3] Holsapple v. Schrontz, 65 Ind. App. 390, 117 N.E. 547, 549 (1917)

A sheriff’s deed is usually issued when a legal process results in seizure and sale of property for some reason. This is required by statute as set forth Indiana Code § 34-55-6-14:

(a) Upon the sale of real estate, by virtue of an execution, and the payment of the purchase money, the sheriff making the sale (or in case of the sheriff's death or going out of office, the sheriff's successor) or any officer authorized to discharge the duties of the office shall execute and deliver to the purchaser a deed of conveyance for the premises. (b) A deed of conveyance delivered under subsection (a) is valid and effectual to convey all the right, title, and interest of the execution debtor to the purchaser, except any right of redemption, as provided by law. Ind. Code § 34-55-6-14.

This definition sets forth what the purchaser of the property is receiving, namely “all the right, title, and interest of the execution debtor to the purchaser, except any right of redemption.” Here are a few examples of when the sheriff’s deed may show up in “real life:”

Kenneth and Kathy Clarke owned the Property until June 7, 2000, when it was sold at a sheriff's sale pursuant to a decree of foreclosure in favor of the mortgage holder, Beneficial. On September 1, 2000, a sheriff's deed was issued in favor of Beneficial…days later, Beneficial recorded the sheriff's deed with respect to the Property.^[1]

Thereafter, Spicklemire defaulted on his loan with Apex, and in September 2001, Apex filed a foreclosure action on the Site. The trial court issued a foreclosure judgment decree in April 2002. Following a sheriff's sale in September 2002, Apex obtained title, via the sheriff's deed, to the Site.^[2]

[1] Puente v. Beneficial Mortgage Co. of Indiana, No. 45A03-1304-PL-159, 2014 WL 1873704 (Ind. Ct. App. May 9, 2014)

[2] Filmcraft Labs., Inc. v. 5200 Keystone Ltd. Realty, LLC, 969 N.E.2d 632 (Ind. Ct. App. 2012).

Earlier, we noted that deeds have minimal requirements in order to be “legal,” pursuant to statute. While this is true, Indiana courts have held that:

An instrument, having otherwise the formalities of a deed, will be construed to operate as a deed whenever it appears therefrom that it was the intent of the maker to convey any estate or interest whatever, to vest upon the execution of the paper.[1]

In the interest of refusing to test these limits, most deeds have certain clauses that describe important things about the parcel to be transferred, such as the grantor, the premises to be conveyed, the size of the estate being conveyed (fee simple, life estate, and so on), any reservations, etc. These clauses have Latin names which you eventually may learn for your employment, but for the time being, we will use common terms. Some key clauses that most Indiana deeds contain include:

1. Key Number – This may also be a “parcel number” – it is essentially a unique identifier for any given piece of property in a county. A key number “means a number assigned to a tract of land in a county by a county auditor that:(1) identifies the taxing district in which the tract is located;(2) is a number that is not assigned to any other tract in the county; and (3) is listed in the transfer book or records maintained under IC 6-1.1-5.^[2]
2. Name of the Grantor – This is the name of the current owner or agent of the owners of the property, usually with the name of their county of residence, and matches the signature on the deed. For instance, in a warranty deed or quitclaim deed, this is usually the current owner. In a sheriff’s deed, the grantor is technically the Court, and it would likely be signed by a sheriff pursuant to court order. In a trustee or personal representative’s deed, the grantor is the trust or estate in question, and would be signed by the trustee or personal representative, respectively.
3. Name of the Grantee – This is the name of the individual or business taking ownership of the property, along with their county of residence.
4. Way in Which Title is Taken – Here, you will see statement concerning how the grantee will take title, such as “fee simple,” “tenants in common”, and so forth. Remember, if it is warranty deed to one person, it is most likely, “fee simple.” However, if to more than one person, it will be as tenants in common, joint tenancy, or tenancy by the entireties.
5. Consideration – This is the amount for which the property was transferred. This is not required to be the real amount – often a deed will state something like “$10.00 and other good and valuable consideration. This is because deeds are public record, and many people do not wish to disclose to the public the amount paid or received for property.
6. The Legal Description – This is an extremely important part of the deed. The legal description provides the precise location and delineation of the parcel of property in question. While the Key Number provides a unique identifier for the county records, the legal description describes where the land is located, the boundaries of the land, and size of the land (directly or indirectly). We will discuss legal descriptions at greater length in the chapter on legal descriptions.
7. The Common Name – This is usually the street address of the property. While this is sometimes omitted, especially on older deeds when there may have been no street address, it can be extremely useful in the day and age of electronic maps to find the property in question to get a satellite or aerial photograph view. Therefore, if you can include this when drafting a deed, and there is no reason not to do so, it should be included.
8. Limitations or Exceptions Clause – This clause sets forth any rights, easements, licenses, or any other limitations on ownership. For instance, one will often see “subject to any and all easements, agreements and restrictions of record.” We will get more into this when we discuss the recording process, but one example of a “easement…of record” would be a right by a utility company to use part of the land to run a utility line (such as power) and the additional right to use the property to access that utility.
9. Tax Bills – Most deeds have either have an address where tax bills should be sent or a reference that the address should be the common address listed on the deed. This is particularly important where the billing address for taxes is different than the address on the deed, such as when the property is commercial (rental, warehouse, etc.) and the tax payor is located at another address.
10. Signature – As we noted previously, a deed must be signed by the grantor(s) in order to be valid. It usually contains a reference to the fact that the deed is signed in front of a notary. It also usually contains the date the deed was signed, if not set forth independently.
11. Notary Acknowledgement –To be recorded, a deed must be witnessed by a notary. Indiana statutes set forth requirements to become a notary, establish a bond to be given by a notary, and so forth.
12. Drafter – To be recorded in Indiana, the deed must contain the name of the individual or business who drafted the deed.
13. Return Address – this is the location where the deed, after it has been recorded and stamped, should be mailed. It usually matches the tax bill location, though not always.
14. Tax Bill Address – if not set forth previously.

In addition to these requirements, Indiana sets forth certain statutory requirements which must be in place on any deed before it may be recorded. These additional statutory requirements are found in Ind. Code § 36-2-11-16(c). However, a deed that does not completely meet these requirements may still nonetheless be recorded if a number of additional requirements, as set forth in Ind. Code § 36-2-11-16(d), are met.

Still more, Indiana also imposes requirements for documents presented to be recorded (with certain exceptions) which are:

1. The instrument or document consists of at least one (1) individual page measuring not more than eight and one-half (8 ½ ) inches by fourteen (14) inches that is not permanently bound and is not a continuous form;
2. The instrument or document is on white paper of at least twenty (20) pound weight and has clean margins: (A) on the first and last pages of at least two (2) inches on the top and bottom and one-half (½) inch on each side; and (B) on each additional page of at least one-half (½) inch on the top, bottom, and each side; and
3. The instrument or document is typewritten or computer generated in black ink in at least 10 point type.^[3]

Moreover, in any Indiana document submitted for recording, any social security number must be removed unless otherwise required by law (Ind. Code § 36-2-7.5-4), and must contain a sworn statement that all social security numbers have been removed, in approximately this form:

I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law (name).^[4]

and must contain a statement indicating who prepared it in approximately this form:

This instrument was prepared by (name).”^[5]

Lastly, there may be additional requirements we will discuss in other parts of this text, such as the filing of a sales disclosure form with the County Assessor. While this seems like a great deal of information, most of it will be contained in forms maintained by law firms and title companies. It is good for you to know the generalities, as set forth above, in the event you are ever asked.

[1] Spencer v. Robbins, 106 Ind. 580, 5 N.E. 726, 729 (1886)

[2] Ind. Code § 6-1.1-1-8.5

[3] Ind. Code § 36-2-11-16.5(b)

[4] Ind. Code § 36-2-11-15(d)

[5] Ind. Code § 36-2-11-15(c)