War Stories

Every now and then, especially at closings when there is little to do but wait for the bank to fund the loan or for the staff to finish the photocopies, the attorneys will often share stories of other transactions or lawsuits: War Stories, they're called. Even though it is just a way of passing the time, many of these stories point out important issues that, in the end, have shaped the way we do business.

One such story involved the probate of an estate of an elderly woman. It was being handled by one of the attorneys in our firm. He asked for my opinion about some real estate issues that the case presented. After looking over the file, I called the client and asked him to come into the office to help me understand some of the background.

The client, Mr. F, was an elderly gentleman in his late 80s, but his mind was still sharp. After a few minutes of introduction, and after we cleared up a few minor points, we came to the issue that puzzled me. "You said that you owned a 5 acre tract of land in north Harris County. I've checked the tax records, the deed records, and the probate records and I can't find any record of this property. How and when did you acquire it?"

He laughed a little, as if I was missing something obvious: "My aunt Pookie gave it to me," he said, as if it were obvious.

Not to be intimidated, I probed, "And what is her full name?" knowing full well that "Pookie" was probably not her real name.

"Mildred" he stated as if too should have been obvious.

Thinking that I had the problem solved, I went back to work looking for anything that might appear in the public records related to Mildred F______. There was nothing.

This time, I called him on the telephone. After several attempts, I finally reached him. "I can't find any record of a transfer from your aunt Pookie to you. Do you have a copy of the deed?"

He roared with laughter and then tried to explain that the property had been in the family for many, many years and she just gave it to him.

"Is there a deed or something in writing?" I asked.

"Not really," he said.

"Then how did she give it to you?" I asked in frustration.

"She told me that she was giving me the land."

He assumed that this was enough. From his perspective, it should have been. Aunt Pookie wanted him to have it and she told him so. Obviously, his family accepted that and there were no other persons who appeared to have any claim to the land.

In the end, after further investigation, we discovered that the last deed of record was filed in 1902, and it was filed in the wrong county. Since that date, there had been numerous births, marriages, deaths, and divorces, further obscuring the title to the land. We also found that there was a cemetery on the property and a host of other issues too numerous to investigate fully.

We mapped out a plan to resolve these problems and to clear the title, but, in the end, the land was not worth enough to go to that kind of effort. The client decided to go on as they always had, knowing that someday the property might be more valuable, making it then feasible to clear up the title.

So what is the point of the story? How did it shape my practice?

I learned that I should not assume that people understand basic legal concepts. To Mr. F, it was enough that aunt Pookie told him that the land was his. He wasn't ignorant, but he had never heard of the Statute of Frauds that required all transfers of real estate to be in writing. Sometimes we work in an area so long that we forget that some people don't understand it.

A person is not universally ignorant who does not understand something that I think is common knowledge. I knew this, but it was driven home to me by this case. We each have life experiences and skills that are different from one another. Mr. F was a wise old man and I would have loved to have listened to the stories of his life. After talking to him for only a short time, I could tell that he was a great judge of character. He could read people . . . a skill that I often lacked.

The purpose of the law is to protect people, but I learned that sometimes it fails. Sometimes it injures the very people it was designed to protect. The Statute of Frauds, as its name implies, was intended to prevent people from being injured in land transactions that were not in writing. Title to land, it was argued, was simply too important to be governed by something as ephemeral as spoken words. But in this case, innocent people were injured as a result of the requirements of this law. His aunt was trying to give him the land. His family accepted it. It was the way that they'd done things for almost a 100 years. Laws do not always have the result intended. We must understand that. We must understand the bigger picture. The Statute of Frauds is a good law and our community is better because of it, even if the results are unfair from time to time. People often see a case like this and argue that the law is bad and should be repealed. But this is not true. I learned that we should not react too quickly. In our Instagram, twitter and Facebook world, we are often presented with compelling reasons to make radical changes in our laws and society. In doing so, we can end up doing more harm than good.

I also learned that economics often determines the outcome. It is not always good or fair, but we cannot ignore its influence. Any viable solution must consider the cost.

Am I happy with what I have learned from this? No. I would have loved to have been able to clear up all of the problems so that Mr. F could have passed the property to his children, free of all of these clouds on the title. I would have loved to have found an exception to the law for this type of facts, but there was none. In the end, I felt frustrated.

The practice of law is not perfect. It is not a sterile laboratory in which facts are dissected and examined under the spotlight of truth. It is full of obscurities, conflicts, shadows, and roads that fade into foot paths and then disappear. It is full of imperfections and disappointments, but I can't imagine what life would be like without some type of framework, no matter how imperfect.

I have not given up. Over the years I have looked for and found a number of tools that can help in situations like this. It has pushed me to try harder, to think outside of the box. Sometimes we focus so much on the problem that we fail to see that there are other ways to resolve it.