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GENEALOGY WITH DEEDS, MORTGAGES AND PROBATE RECORDS

February 6, 1991

GENEALOGY WITH DEEDS, MORTGAGES AND PROBATE RECORDS

     By: Jonesborough Genealogical Society        

Persons who live in Northeast Tennessee tend to know about its history – but somehow often overlook the fact that the names of their relatives are part of the recorded pioneer experience. In my opinion, as a Washington County Sessions Judge, the Washington County Court House in Jonesborough has a dual purpose: first as a place to settle the disputes and record the activities of all persons who live in the county at the present time; and secondly, to preserve the experiences of the past.

     Nowhere is the record of the people preserved in more exact fashion than in the Office of the Register of Deeds under the direction of Charles R. Beard and his staff. For those interested in genealogical research, a visit to this county office is a must. Among my duties as a Sessions Judge is jurisdiction that includes Probate Court. Probate records in Washington County are maintained by the County Clerk Roy Phillips and his staff. Phillips is responsible for some of the most valuable, extant records located in Tennessee. His office contains records recording activities of the founders of the state and in some instances, as with President Andrew Jackson, the leaders of the nation.

     I mention both the County Clerk and Register of Deeds records because in Tennessee, you should consult both offices in doing genealogical research. Probate involves the administration through judicial proceedings of a person’s last will and testament, or of his or her estate, and related matters including conservatorships and guardianships. Since real estate in Tennessee passes to survivors by operation of law, deed records contain the evidence of ownership of a parcel of land conveyed from generation to generation. Personal property, on the other hand, is transferred by probate in the County Court with the records in the County Clerk’s office. And the County Clerk has the claims filed against an estate in probate. Sometimes what a person owed and to whom it was owed is as interesting as what property he or she attempted to pass by will.

     Land records were an important part of the formation of a civilization in East Tennessee. This area was a birthplace of The Watauga Association, which produced the first articles for government of a free and independent people in America. In the excellent text of History of Washington County Tennessee 1988, compiled by the Watauga Association of Genealogists – Upper East Tennessee, the article on “The Transylvania Purchase” states: “The Wataugans opened a land office on April 1, 1775 for selling land under a master deed of Charles Robertson, trustee.” The same year in the fall, the Wataugans changed their name to “Washington District – the first geographical division in this country to be named for George Washington.” This same history tells us that the first County Court Clerk was John Sevier (1778-1785) and the first Register of Deeds was John McMahon (1778-1789). Besides the Wataugans, the State of North Carolina and the State of Franklin have a heritage in Washington County.

     To understand Probate and Deed records for purposes of genealogical research, the following guidelines are offered. I think you will find the staffs in Register Beard’s and County Clerk Phillips’ offices very helpful. Remember, these are working offices with a duty to record the county’s present commercial and personal activities. They are not curators not archivists in the manner of persons employed in a museum – but in a very real sense both offices are responsible for preserving the history of Tennessee.

     The history of Tennessee includes, as mentioned earlier, the history of numerous persons who live in this area and throughout the United States. Unlike reading a written history text, however, persons interested in these records need a basic understanding of some legal terms and of the methods of genealogical research. Because of my duties as probate judge, I have become interested in genealogy, and try to be of service to persons attempting to perform research in Washington County.

     The methods of conveying land in Tennessee is described in the Tennessee Code in this language: “The following or other equivalent forms,  varied to suit the precise state of facts, are sufficient for the purposes contemplated, without further circumlocution:

(1)    (A) For a deed in fee with general warranty: ‘I hereby convey to A.B. the following tract of land (describing it), and I warrant the title against all persons whomsoever.’

      (B)  Covenants of seizing, possession, and special warranty: “I covenant that I am seized and possessed of the said land, and have a right to convey it, and I warrant the title against all persons claiming under me.’

(2) For a quitclaim deed: ‘I hereby quitclaim to A.B. all my interest in the following land (describing it);

(3) For a mortgage: ‘I hereby convey to A.B. the following land (describing it), to be void upon condition that I pay,’ etc.; and

(4) For a deed of trust: ‘For the purpose of securing to A.B. a note of this dated, due at twelve months, with interest from date (or as the case may be), I hereby convey to C.D., in trust, the following property (describing it). And if the note is not paid at maturity, I hereby authorize C.D. to sell the property herein conveyed (stating the manner, place of sale, notice, etc.), to execute a deed to the purchaser, to pay off the amount herein secured, with interest and costs, and to hold the remainder subject to my order.”

     To understand the above information, you must understand the following concept – ownership of property involves the ownership of a bundle of rights, part of which can be taken from an owner with the result that the rights in the bundle are divided among several persons or institutions. That is exactly what happens with a mortgage – the legal right, including the right of possession, stays with the deedholder. That individual can bargain away the right to possession – rent the property, for example, by use of a lease. The equitable right – in the case of a mortgage, is given to the holder of a financial interest in the property. With a deed of trust, title is given to a third individual who can foreclose on the property if the payments on the indebtedness are not paid when due.

     The deeds mentioned previously – warranty deed and quit claim deed also involve different concepts. In a warranty deed, the conveyance is made with the guarantee that the person who is selling the property has the title to the property and will defend that title if called upon by the buyer to do.  The concept of a quitclaim deed involves the notion that I will sell you whatever interest, if any, I have in a piece of real estate. For example, I will quit claim my interest to the Brooklyn Bridge  to anyone who reads this article. Of course, I have no legal title to the Brooklyn Bridge and my quit claim deed will not obligate me to defend the title to the bridge in any way whatsoever. The corporate form of a warranty deed is called a Special Warranty deed and does involve a guarantee of title by the corporation.

     The word seizing in the quotation on conveyances refers to the ceremonial method by which property at one time was transferred from one owner to another. It also refers to possession and is related to the concept of “seizing,” that is the process by which we take something away from another person. Once upon a time, in medieval days, a person might be seized of property as a result of knight’s service – or military tenure. You can see that from this notion, we have a modern concept of a VA or Veterans Administration mortgage.

     Today the method of seizing is controlled by laws which have public recording of deeds, deeds of trust and mortgages. In Tennessee, deeds are not good against third persons until noted for recordation in the Office of Register of Deeds. That is why if your ancestors owned property in Washington County, the evidence of its recording is still on file in the Register’s records.

     One of the exciting features of deeds, deeds of trust and mortgages is that they must be signed by the makers and acknowledged (notarized) in order to be recorded. That means that when you find one of these documents in the Register of Deeds office, you have the official and actual signature of one of the ancestors in exactly the manner he or she signed their legal name. You might discover that your ancestor could not read or write and that the signature consists of nothing more than a mark or “x”.

     In this state, mortgages are seldom used. However, in the Office of the Register of Deeds, you will find recorded Chattel Mortgages, which are mortgages on personal property. This kind of instrument has often been used to finance the purchase of livestock, for example. The Chattel Mortgage has now been replaced by the security instruments contained in Tennessee’s Uniform Commercial Code. You should also look at the personal property listings in the Probate inventories contained in the County Clerk’s office. Antique dealers, in addition to genealogists, are often interested in authenticating items of personal property.

     Instead of a mortgage, real property is usually held in trust by virtue of a trust deed with a note representing the indebtedness. Trust Deeds, in my opinion, are used because by virtue of such an instrument it is possible in Tennessee: (a) to foreclose property without a period of time during which the legal owner can redeem (that is get back the property), and (b) such proceedings are non-judicial, that is they are held on the courthouse steps and not in the court room where the proceeding would be supervised by a judge.

     In my generation, we were told stories of how our relatives had lost the farm during the Great Depression or some other period of economic hardship. That has happened time and time again in Tennessee, with the courts of little assistance as the people had their property taken away from them. These trust deeds include a power of sale. If the instrument lacks the power of sale, compulsory foreclosure requires a bill of chancery. Likewise, in Tennessee, a mortgage or deed of trust would have a two year period of redemption that is a period of time during which the legal owner could buy the property back. This right of redemption was placed in the law during an era when agriculture was the basis of our economic system – and a legislature dominated by farmers realized there would be bad crop years and economic hardship. People were given a couple of years to have a better crop or to make arrangements to move on to obtain a fresh start. In a deed of trust, the two-year period of redemption can be waived and is waived in most modern legal documents. This may explain why a cousin or uncle or greatgrandfather lost title to the ancestral “farm.” By the way, the loss of your home can occur today in much the same manner if you miss paying your monthly house payment.

     To summarize, deeds and mortgages are two –party legal documents. A deed of trust is a three-party instrument in which a trustee is given the power to foreclose on the legal ownership of real estate if certain payments or conditions of the deed of trust are not met. Title of the real estate is then conveyed by the trustee to the lender, the equitable owner of the property.

     The material in this article is intended for purposes of genealogical research only. It is not legal advice, and I urge you to consult your lawyer if you are interested in the purchase or sale of real property. I hope I have given you an introduction, however, to some of the records in the court house. There are other records there also, and perhaps they can be the subject of another article.

     The records in both the Offices of the County Clerk and the Register of Deeds are indexed. You should, with a little practice, be able to use these records for genealogical research. You need not be a lawyer or a real estate agent to use the records. These records belong to the people, the taxpayers of Washington County who have had them maintained at their expense through some 200 years of the existence of organized government in Northeast Tennessee. We have been fortunate in this area that records, for the most part, have not been lost to war or court house fires or other disasters. Instead, they await your inspection. I hope you make a visit to these court house records soon.

 

                                                                                                          John L. Kiener

                                                                                                          Judge of the Court of General Sessions

                                                                                                          Washington County, Tennessee

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