In addition, we occasionally field questions from others who need to know about the deep title history to a property for other reasons:

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1 Generally speaking the North Carolina Marketable Title Act (Chapter 47B of the NCGS) makes only the last thirty years of title history important. However, NCGS 47B-3 contains a number of important exceptions to the Marketable Title Act. Among other things, the following interests are not extinguished by the Act: 1. Rights which are specified in the chain of title within the last 30 years or which arose earlier and are specifically mentioned in the 30-year chain of title 2. Rights of any person who is in open possession of the property (adverse possessors) 3. Rights of persons who have a competing marketable record title and are listed in the tax records of the county (for example deed overlap situations) 4. Mineral rights 5. Railroad rights-of-way and certain other railroad properties 6. Flooding easements 7. Utility easements 8. Certain kinds of land conservation easements 9. Property rights of the United States government 10. Deeds of trust, mortgages and security agreements 11. Rights registered under the Torrens Law (Ch. 43 NCGS) 12. Neighborhood restrictive covenants - typically created by the developer of the land While many of the above exceptions are quite rare, some are fairly common especially deed overlaps. A quick search of Orange County records reveals at least a half dozen conveyances of mineral rights from before the Civil War. Likewise, I readily found several inundation agreements from over 200 years ago. And of course, there are plenty of railroad right-of-way agreements from 100 to 150 years ago. None of those are cut off by the Marketable Title Act. And no doubt there are plenty of other such documents that are much newer. Additionally, properties which have been owned by an institution for a long time may have no title history within the last 30 years and therefore fall outside the Marketable Title Act: 1. churches, schools and companies which acquired property much longer than 30 years ago 2. properties handed down through the family for decades and decades In addition, we occasionally field questions from others who need to know about the deep title history to a property for other reasons: 1. to prove when certain land uses first arose (nuisance situations) 2. to establish when and where a particular road or street was created 3. to prove that a land use pre-dated some local ordinance 4. to research old industrial uses because of possible hazardous waste issues 5. to determine historical navigability of a waterway 6. to prove historical significance of a building for the National Historic Register 7. to assess archeological/historic significance under NEPA or other laws 8. and doubtless many other less common situations. When matters in controversy (or potentially in controversy) are exempt from the Marketable Title Act, it becomes important to trace the title history further back than 30 years. In addition, nervous title 1

2 insurance companies may sometimes require quite a bit more than 30 years of title history. Once every few months in the Orange County Register of Deeds office, we are contacted by title researchers who are being asked by the title insurance company for a COMPLETE title history for whatever reasons. When we run into gaps in title history, there are a couple of time-honored strategies for figuring out the back story: 1. Digging in at the Estates Division a. When we don t find a deed to someone who we believe was in the chain of title, one simple explanation could be that the person inherited the land. b. This is a problem which many of you are quite familiar with. Looking for related names in the wills and estates indexes at the Clerk of Court will often yield good results, though by no means always. c. If the person who left the property in his/her will does not have the same last name as the person we are researching (as is often the case), it will be useful to check the Devisee Index in the Clerk of Court s office. i. This has some real limitations though for example as far as I can determine the Devisee Index for Orange County goes back to about 1960 before that you are on your own. ii. Orange County began putting their estate records into a computer around 1997, so this is a paper-intensive research project. iii. Also, Orange County s Estates Division has copies of wills back to about For the 148 years before that, you need to go to Raleigh to look at the Archives. 2. Following the In-laws a. It can be more problematic if the property passed to one or more married daughters who do not have the same last name as the person who died intestate. And especially when this sort of intestate succession took place long enough ago that there is little or no file on the matter at the Clerk of Court s office. b. To deal with this problem it can be helpful to consult the marriage license index for your county, which will typically list the wife s maiden name and if you look at the original certificate, it will typically include the names of her mother and father. c. There are practical limits to this approach however, as the couple may have been married in another county or even state. i. There is no statewide database of marriage licenses that you can consult. ii. Even if you visit or contact many different Registers of Deeds, you will often come up either empty handed or, worse yet, with information that is a total red herring. 3. Working around the edges a. In some cases, no amount of research in estate files or marriage licenses will answer the question particularly when the reason for the title gap is simply that there was a deed from the prior owner but that deed either was never recorded or was recorded, but has since been lost or destroyed. i. These days it is an extremely rare occurrence for a deed to be lost or destroyed, but in former centuries, paper was expensive and recopying worn-out deed books was very expensive and laborious. 2

3 ii. Thus, in former centuries, old deed books were often used until they were almost destroyed and some documents came loose or were worn so badly that by the time the books were recopied the deeds we are seeking were already gone or illegible. iii. Courthouse fires were also a problem in many counties for example the Bladen County Courthouse has burned to the ground no less than THREE TIMES! iv. War has also exacted a toll on old deed books. Several of Orange County s colonial era deed books were stolen by the Tories in 1781 and never recovered. And some counties also suffered similar losses during the Civil War. b. So, what do we do when the deed we are looking for simply no longer exists? A simple, if laborious, solution is to look at the title history of properties adjoining the property in question. i. Deeds will often mention that names of adjoining property owners and if we research the title of the adjoining properties past the title gap, the older deeds may well mention who the owner of our subject property was. ii. In some cases such research will lead to deeds which fail to mention the owner of the property we are researching, which is frustrating. iii. And of course, such research can sometimes yield a name for the prior owner without managing to explain at all how the property passed out of the hands of the prior owner and into the chain of title that we have been researching. But even in such cases, it does open up the opportunity to return to the Clerk of Court s Estates Division to investigate some estate files that we did not previously know about. There are a lot of problems with the strategies I have mentioned above. These can be both time consuming and fruitless which leads to billable hours that no one will ever pay for unbillable hours I guess we should call them. In Orange County we have been working on some new and additional research tools which enable us to use a couple of additional strategies for investigating title history gaps: 4. Jumping over the gap a. While all counties have deed book indexes of one kind or another that cover all of the grantors and grantees in all of their deed books, few counties have an extensive index to the legal descriptions of the property being conveyed. In many cases, legal description search capabilities are extremely limited both because the descriptions are extremely terse and because they are typically a feature available for only the past 50 or so years. b. In Orange County we have begun to index the legal descriptions in deeds from much longer ago. i. Beginning with Orange County Deed Book 1 we have abstracted the acreage, bodies of water, adjoining owners names, roads, fords, ferries, mills and other notable landmarks mentioned in legal descriptions. ii. This Legal Description Index reveals many fascinating details about the history of the local area, but it also serves as a potent new strategy for researching title gaps the abovementioned strategy of Working Around the Edges can become a lot easier using this new resource. 3

4 iii. Even more significant is the opportunity to Jump Over the Gap by searching on significant details from the legal description of our subject property to pick back up the chain of title from before the title gap. 1. For example, if we are researching a property on the tiny creek called Indian Grave Branch up near Hurdle Mills, NC in northeast Orange County, we can simply plug Indian Grave Branch into the search engine and instantly find the old chain of title. 2. Likewise, this is an extremely handy resource when we are doing deep title research on a numbered lot in the old part of Hillsborough. Plug in lot 87 and see what comes up. iv. This strategy certainly does have limitations sometimes the names of creeks change over time. Likewise, spelling was much more variable prior to But even with those caveats, this new index is a powerful tool. v. In Orange County, we have completed this index of legal description abstracts from 1752 to 1867 a span of 115 years and we plan to continue the project through 1899 and perhaps further. 5. Begin the Beguine a. Another approach which the Legal Description Index opens up is to follow the title history in the opposite direction. b. If we can identify the original land grant for the area we are researching, we can follow the chain of title forward to find the other end of the title gap we are researching. c. There are a number of limitations to this strategy: i. Finding the original land grant is easier said than done. ii. Even when we do find the original land grant, it may simply lead to tracing the title forward to another, entirely different gap in the title history. iii. Even with the Legal Description Index, this process can lead to unbillable hours. d. However, there is some good news. In some counties, local historians have done a good bit of this work for us already. Land grant maps of one kind or another exist for the following counties (and perhaps some others I don t know about): i. Orange ii. Durham iii. Alamance iv. Wake v. Rowan vi. Cabarrus vii. Davie viii. and New Hanover e. As well, there are land grant maps for large portions of Guilford, Randolph, Moore, and Chatham Counties. f. I would be eager to learn of other counties for which land grant maps have been created, so if you know or learn of any others, please contact me at mchilton@outlook.com or We will likely not have time at this CLE to delve all that deeply into further details about NC land grants and how to find them, however I am including below a brief treatment of the subject: 4

5 ORIGINS OF TITLE HISTORY: An introduction to land grants in North Carolina I. Most of the eastern United States and Canada were claimed by Queen Elizabeth I in 1584 II. The British Crown maintained its claim to the area that is now North Carolina from then until 1665 when Carolina was granted to the Lords Proprietors in a. Shortly after the establishment of the Lords Proprietors as owners of Carolina (which then included all of what are now NC, SC and Georgia), the Lords Proprietors created the first Register of Deeds office, making this the oldest still existing public office in North Carolina. (See NC Guidebook for Registers of Deeds by Charles Szypszak, Section 1.2, 2013 edition) III. The Lords Proprietors owned (and granted lands in) Carolina from 1665 forward until 7/8ths of the Lords Proprietors sold their interest in Carolina back to the Crown in a. Land grants from the Lords Proprietors can be found at NCLandGrants.com and are also recorded in the NC Land Patent Books at the NC Archives. b. However, the records in the Patent Books are quite incomplete and many Lord Proprietors land grants are also to be found in the old deed books of the relevant counties. c. I do not know for certain, but I strongly suspect that there were many Lords Proprietors land grants which are completely lost to history i.e. not to be found in either the Patent Books or the deed books. d. Because these land grants were issued no later than 1728, they generally are the foundation of title authority for land in the NC coastal plain only there were few if any settlers in the central parts of North Carolina at that time. IV. The new Royal Governor of North Carolina arrived in early 1731 to discover that some lands in North Carolina had been granted under the purported authority of the Lords Proprietors in the period notwithstanding that the Lords Proprietors had specifically instructed colonial administrators to grant no more lands after the sale back to the Crown in mid a. Large chunks of what are now Alamance, Orange, Nash and Edgecombe Counties were granted in chunks of 5,000 to 10,000 acre chunks to powerful insiders in the Colonial administration during this time. Some parts of North Carolina along the Virginia line were also granted under similar circumstances and those interested in more information on this topic should contact me at mchilton@outoolk.com b. Some of these large land grants were later declared invalid, but by and large these grants seem to have held up notwithstanding their dubious circumstances. A Royal inquiry into the matter found that upwards of 400,000 acres of North Carolina land were granted pursuant to these dubious grants. V. From 1731 to 1744, all of North Carolina was owned by the Crown - except that an undivided one eighth interest was still held by Baron John Carteret - who would shortly thereafter inherit the title of Earl Granville. VI. Earl Granville s one eighth undivided interest in Carolina was eventually separated from the Crown s 7/8ths interest by a deed to Earl Granville for the northernmost sixty miles of what 5

6 VII. VIII. IX. is now North Carolina. The southern boundary of the Granville District was surveyed in the late 1740 s and early 1750 s and eventually became what is now the southern boundary of Chatham, Randolph, Davidson, Rowan, Iredell and Burke Counties. During the years 1746 to 1763, all lands between Virginia and that line were owned by Earl Granville (unless they had been previously granted by the Lords Proprietors or the Crown). Thus Earl Granville owned about 40% of what is now North Carolina. Earl Granville never visited North Carolina or anywhere in the New World. Instead he employed agents to help him sell (and collect taxes on) the land he owned here. a. Granville s agents granted thousands of large tracts to settlers and real estate speculators in the North Carolina Piedmont. While he notionally owned much of North Carolina s Coastal Plain, the valuable parts of that land had already been granted by the Lords Proprietors and the Crown prior to Earl Granville s deed. b. The land grant patents issued by Earl Granville were kept by his agents in North Carolina and the bulk of those records were seized by the State of North Carolina at the time of the Revolution, though the records were always a bit disorganized. Thus records of the great majority of Granville s grants of land are to be found today at the North Carolina State Archives in Raleigh. i. But these records are incomplete and the absence of a record at the Archives is in no way to be interpreted as evidence that a grant did not happen. ii. Most of Granville s grants were recorded in the North Carolina Land Patent Books and can be searched online via NCLandGrants.com c. Some Granville grants of land are also recorded in the county deed books for the counties in which those lands lay at the time, but many are not. In some cases, the land grants in the county deed books will not be found in the NC Patent Books, and in many cases vice versa. d. In still other cases, the grants of land from Earl Granville will not be found in either the Patent Book or in County Deed Books, and we are left to piece together the title history based upon later deeds which either reference or imply land grants from Earl Granville grants for which no remaining direct evidence still exists. e. On the positive side, the Granville grants which do survive at the State Archives often have with them original surveys from the 1750 s and 1760 s and these surveys often include important details which can be used to decipher just where those land grants were. These surveys sometimes include evidence of the location of public rights of way, mills, fords and other useful information. Areas south of the Granville District remained owned by the British Crown and were the subject of Royal land grants until Most of the Royal land grants from 1731 to 1776 are to be found at NCLandGrants.com but some of those records have also been lost and it is possible that some Royal land grants may be found in various county deed books or may alternatively be lost altogether. Few if any of these Royal land gants are the subject of surveys that are still in existence. At almost exactly the same time when Earl Granville was deeded the northernmost 60 miles of North Carolina, a huge portion of the North Carolina Piedmont was granted to a London 6

7 based merchant named Henry McCulloh. McCulloh was granted 12 tracts of 100,000 acres each on either side of what is now Interstate 85. a. The county deed books of the Piedmont include many land grants for McCulloh s 1.2 Million acres, but in many cases, the original land grants are not recorded and have been lost altogether. To deal with this issue, the Legislature passed special legislation which addresses this issue: See NCGS b. In almost every case, the original surveys for Henry McCulloh s land grants are gone. The major exception concerns land in McCulloh Tract Number 10. McCulloh s survey book for Tract 10 (primarily in what is now Davidson County, NC) can be found at the Southern Historical Collection at UNC-Chapel Hill s Wilson Library. This survey book contains many detailed surveys. UNC SHC call number 1944-z X. In 1777, the Revolutionary government of North Carolina laid claim to all un-granted land in North Carolina, as well as all remaining land belonging to the King s major allies including both Earl Granville and Henry McCulloh. The un-granted land of the King and Earl Granville became the subject of land grants from the State of North Carolina. NC state land grants are also searchable on NCLandGrants.com. The originals grants and their attendant surveys are available at the NC State Archives in Raleigh and like the Granville grants they frequently include interesting and important details about the locations of mills, fords, roads etc. XI. The remaining lands of Henry McCulloh were handled differently from the lands seized from the King and from Earl Granville. They were auctioned to the highest bidder in the 1780 s and although records of those grants of land can typically be found at the state archives, they are not entirely to be found among the state land grants there. Instead they are commonly found in collections of Confiscated Land. Again in most cases, there are 18 th century surveys of those lands at the Archives, but they are to be found separate from the other State Land Grants. XII. For whatever reasons, some of the lands confiscated from Henry McCulloh were not sold in the 1780 s auctions. By the 1790 s, the State was seeking to find a way to fund the creation of the University of North Carolina without imposing any tax burden on North Carolinians. One source of funds for the new University was that the State gave UNC all remaining land confiscated from Henry McCulloh. Thus some land titles in the North Carolina Piedmont derive their title authority from land grants issued by the University of North Carolina. Piedmont title researchers will find many land titles from UNC in the deed books of various North Carolina counties. These land grants are not to be found at NCLandGrants.com Genealogists and historians have assembled indexes to some of North Carolina s land grants. When undertaking a serious search for land grants, it is very helpful to look at the works of Margaret Hoffmann who has produced published indexes land grants from the Lords Proprietors, Earl Granville and the Royal government. 7