EXTRINSIC EVIDENCE AND DEEDS: BOGGS V. GRIFFITH (COA 6/22/2007)

BOGGS V. GRIFFITH
PROPERTY:  Real estate deeds, extrinsic evidence, easements
2006-CA-001813
PUBLISHED: AFFIRMING
PANEL: VANMETER PRESIDING; THOMPSON, PAISLEY CONCUR
COUNTY: LAWRENCE
DATE RENDERED: 6/22/2007

COA rules that a conveyance of a "30 foot width" created a nonexclusive easement (based on the TC’s finding that the terms of the deed were ambiguous and admitted testimony of the Grantor that he intended to convey an easement). Deed was drawn by Grantee and used boilerplate language of a fee simple conveyance but contained the word "road" which is generally used in easements and that the conveyed property "crosses" the Grantor’s property further evidence of the intent of an easement. The testimony of the Grantor was a proper admission of extrinsic evidence by the TC because of an ambiguity between the boilerplate language of the deed and the portion written by the parties. Further, because the deed was drafted by the Grantee the TC was correct by not following the general rule that a deed is construed most strongly on the Grantor and most favorably on the Grantee (the underlying rationale for the rule is removed because the Grantee prepared this deed). 

by Paul O’Bryan