If the seller’s attorney made a mistake on the legal descriptionon theproperty deeds, do I have recourse to get my mortgage money back?

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If the seller’s attorney made a mistake on the legal descriptionon theproperty deeds, do I have recourse to get my mortgage money back?

Bought 2 parcels:1-acre with house, and 5-acre lot. The 5-acres sold for 1 dollar when house lot bought at full price. The atty that made the deed made a mistake- put the legal description of the 1-acre lot to be sold for $1. Then 2 years later, I noticed the error. The realtor got a new (back-dated) deed with correct legal description for 5-acres – sold for $1. I now have 2 deeds, each signed by the sellers, the attorney and notary- that both lots were purchased for $1 each. Do I have any recourse for money paid and/or money owed on my mortgage, as it appears I purchased both parcels for $2?

Asked on January 25, 2012 under Real Estate Law, South Dakota

Answers:

Joseph Gasparrini

Answered 9 years ago | Contributor

If I understand you correctly, you are saying that you originally received a deed that was supposed to contain the legal description of the 5 acre lot, but by mistake it contained the legal description of another property, namely the acre lot with a house.  Thus, you did not actually receive title to the 5-acre parcel at the time of that closing because that property was not described in the deed.  Nonethless, you say that two years later a new deed was signed and delivered to you, which properly included the legal description of the 5-acre parcel.  This corrected the error that was made at the time of the original closing.  You also state that at the time of the original closing you put a mortgage on one or both of these properties (not clear whether just on the house or on both properties).  Regardless: assuming that the mortgage deed that you signed at the closing contained the correct description of the property that was intended to be mortgaged, the mere fact that the deed states (erroneously) that you bought the property for $1 does not have any effect on the validity or enforceability of the mortgage.  Therefore, in my opinion you will not be able to take advantage of the error in the original deed for the purpose of avoiding any of your obligations under the mortgage and the promissory note that it secures.


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