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Texas Limitations to File Suit on Forgery of Warranty Deed & POA
My grandfather adopted me at 6 months old from my mother, who was his daughter. The family recently found out that my Aunt, forged my grandfathers signature on a warranty deed and my aunt's sister in law notarized the deed and power of atty (POA). My grandfather had Alzheimers. MY grandmother was still alive when the forgery took place but in a rest home. I consulted 2 atty's and for a fee, they could file suit against the present owners, but I got a second opinion also , and I was told that the limitations had run out for me to sue as an heir. My grandfather dies without a will. My aunt handled the funeral and claimed that the house was sold to pay off debt and expenses. The house had been already sold before my grandfather passed away.
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- 8 Comments
- That's certainly the law as recited in the South Carolina decision you cut and pasted. But we're discussing Texas. I haven't researched the issue - I've simply presented something that needs to be explored. But please, be very cautious about presenting an excerpt from a South Carolina case and asserting it as decisive on the question of BFP status or the validity of deeds in Texas.#1; Tue, 25 Jul 2006 22:46:00 GMT
- A forged deed can effectively divest a person of interest in the land, depending upon state law, if the property is sold to a person who takes the property for fair value without notice of any defect in the deed. The normal remedy when that is the case is to pursue the proceeds of the transaction. There are also issues of standing (the legal right to sue) and timing, the outcome of which could depend upon whether an estate was opened with heirs properly notified and whether timely objections were made to the final distribution of the estate. These situations are sticky enough that Consumer01 really will be best served by working with one of the lawyers he contacted.
You're absolutely right to suggest that the value of the land (or perhaps more specifically Consumer01's likely share of any property or money recovered by the estate) should be considered, as litigation could be costly.#2; Mon, 24 Jul 2006 21:31:00 GMT
- It's applicable in Texas because a court will take it seriously if somebody comes in and says, "My legal authority is that there's a guy on the Internet who says so"? Or because you actually have actual Texas legal authority to share (but are choosing not to share it)? You do understand that the law of adverse possession is not the same as the law of the bona find purchaser?
If what is important is what happened to the money, as I previously stated, none of this should change the poster's ability to pursue the proceeds of the transaction.#3; Wed, 26 Jul 2006 06:09:00 GMT
- It is black-letter law which provides that a fraudulent deed is void ab initio and constitutes a nullity. 26A C.J.S. Deeds 114 (2001). As a result, a forged deed cannot be the basis for superior title against an original grantor, even under the equitable doctrine of a bona fide purchaser. Concord Corp. v. Huff, 355 P.2d 73, 76 (Colo. 1960) (holding that void deeds do not convey title); Andre v. Hoffman, 95 S.E. 84, 87 (W. Va. 1918) (holding that the grantee of a forged deed cannot acquire title under the forged instrument).#4; Tue, 25 Jul 2006 19:33:00 GMT
- A forged deed cannot divest a person of an estate in land. If the land was sold before his death, your statute of limitations to contest the will would not apply. You should be able to reopen probate, get yourself declared personal representative, and seek to have the land placed in your Grandfather's estate, where it rightfully belonged.
You do not mention the time frame. If they have been in possession more than ten years you are out of luck due to adverse possession.
The other question is how much is the land worth and is your share worth fighting over.
Also, can you prove the signature was a forgery?#5; Mon, 24 Jul 2006 20:04:00 GMT
- I'll have to admit you are good to find the cite, especially in a dissenting opinion. However, this is applicable in Texas and the Texas statute of limitations on the five year adverse possession specifically excludes a forged deed. That is why I included the ten years. A forged deed cannot transfer title. A court can award title in equity, but the deed itself cannot transfer the property.
However, all of this is really not revelant to the OP. What is revelant is what happened to the money. If it was sold at fair market value and used to pay debt and expenses as the Aunt claims, then there is no case. Another issue is that I think Notaries in Texas have to post a bond. If the deed was forged, their might be an action against the bond. There is a four year SOL on fraud in Texas.#6; Wed, 26 Jul 2006 05:55:00 GMT
- Consider consulting the first two lawyers again, specifically asking about the statute of limitations, and see if (a) they disagree with lawyer number three, or (b) they know of a way to avoid the application of the statute of limitations.#7; Mon, 24 Jul 2006 08:31:00 GMT
- Doing some digging into the statutes and Texas law, although I have not found anything I would regard as definitive on all points, I agree that if somebody purchases a property based on a forged deed, Texas forbids them from asserting adverse possession under the five year statute. However, there is no similar prohibition under the ten year adverse possession statute, which effectively means that any claim of forgery should be raised within ten years.
Also, a purchaser from a bona fide purchaser without notice takes title free of existing equities, even though the subsequent purchaser had actual or constructive notice of such equities. See Hunley v. Bulowski, 256 S.W.2d 932 (Tex.Civ.App., Texarkana 1953). (An exception - somebody who takes title with notice of infirmities sells to a BFP and later regains title to the property.)
QuotingSec. 16.025. ADVERSE POSSESSION: FIVE-YEAR LIMITATIONS PERIOD.
(a) A person must bring suit not later than five years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who:
(1) cultivates, uses, or enjoys the property;(b) This section does not apply to a claim based on a forged deed or a deed executed under a forged power of attorney.
(2) pays applicable taxes on the property; and
(3) claims the property under a duly registered deed.
Sec. 16.026. ADVERSE POSSESSION: 10-YEAR LIMITATIONS
(a) A person must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.
(b) Without a title instrument, peaceable and adverse possession is limited in this section to 160 acres, including improvements, unless the number of acres actually enclosed exceeds 160. If the number of enclosed acres exceeds 160 acres, peaceable and adverse possession extends to the real property actually enclosed.
(c) Peaceable possession of real property held under a duly registered deed or other memorandum of title that fixes the boundaries of the possessor ’s claim extends to the boundaries specified in the instrument.
So it appears that in most circumstances the true owner of the property should try to act before the property is reconveyed, or within ten years. (Or sooner, depending upon other provisions of Texas law I haven't uncovered.)#8; Wed, 26 Jul 2006 07:19:00 GMT