Conveyances of real property must be in writing. In order for conveyance of a homestead to be valid and binding, the owner’s spouse or an attorney in fact acting on behalf of the spouse must also sign the instrument of conveyance, and execution of the deed must be acknowledged before a notary public. Miss. Code Ann. §§ 89-1-29, 89-3-7.
In order for a property conveyance through a deed to be effective, the grantor(s) must deliver the deed to the grantee(s), and the grantee(s) must accept it. Completion of delivery and acceptance is dependent on grantor(s) and grantee(s) possessing the requisite intent. In re Estate of Hardy, 910 So.2d 1052 (Miss. 2005). The surrounding context and the acts and words of the grantor(s) are analyzed to ascertain whether the grantor(s) actually intended to deliver the deed; delivery is presumed where a deed is recorded in the property records. Estate of Dykes v. Estate of Williams, 864 So.2d 926 (Miss. 2003).
Once property is validly conveyed, execution of an additional instrument(s) by the grantor(s) cannot divest the grantee(s) of property previously conveyed via deed. Benton v. Harkins, 800 So.2d 1186 (Miss. Ct. App. 2001). As such, execution of a correction deed that reduces the acreage conveyed is ineffective. K.F. Boackle, Mississippi Real Estate Contracts and Closings § 3:54 (2d ed. 2012).
Grantees should verify that deeds are promptly recorded with the chancery clerk of the county in which the real property is situated in order to preserve their rights to the subject property.
Types of Deeds
In Mississippi, owners of real estate have three options when transferring their property. Therefore, owners of real estate should consider the covenants and warranties, if any, associated with each type of deed.
By executing a quitclaim deed, the grantor conveys the interest, if any, that he or she has in the real property. A quitclaim deed does not incorporate any warranty or covenants of title. Miss. Code Ann. § 89-1-37. As such, a title examination is not conducted. Furthermore, by conveying real property through use of a quitclaim deed, the grantor has no duty or obligation to defend the title of the property against others in the chain of title. While quitclaim deeds eliminate the expense of a title examination, this type of deed might impact the fair market value of the real estate in some instances because of the inherent risks associated with quitclaim deeds. However, if a purchaser has no doubts about the grantor's title to the real property through personal knowledge or independent research conducted by a title researcher at the grantee's expense, use of a quitclaim deed would not likely result in the grantor receiving a lesser sum. Furthermore, quitclaim deeds are a cost-effective means of conveying real property by gift, transfers necessitated by divorce, and similar situations.
In contrast to quitclaim deeds, special warranty deeds offer a limited degree of protection to grantees. By incorporating the words "warrant specially" in a deed, grantors, their heirs, and personal representatives are obligated to "forever warrant and defend the title of the property unto the grantee and his heirs, representatives, and assigns, against the claims of all persons claiming by, through, or under the grantor." Miss. Code Ann. § 89-1-35. However, by executing a special warranty deed, a grantor is not obligated to defend the title of the property against the claims of persons claiming by, through, or under others. Special warranty deeds are often utilized for conveying real property acquired by a means other than purchase, such as foreclosure, but this type of deed can be used for other transactions.
By incorporating the word "warrant" in a deed, grantees are afforded significant assurance and protection. Miss. Code Ann. § 89-1-33 addresses the significance of incorporating the word "warrant" without restrictive words in a deed. This language incorporates the following covenants: (1) seizin, (2) power to sell, (3) freedom from incumbrance, (4) quiet enjoyment, and (5) warranty of title. Due to the nature of warranty deeds, title examinations are mandatory.