Note: This series of essays on interesting court
decisions and good writing began a few days ago. The second installment leads to
a 2005 property case, but before I describe it, a little history is in order.
Anglo-American
jurisprudence goes back at least as far as the Battle of Hastings in 1066. In
the years that followed that watershed event, English kings took a hotch pot of
conflicting village customs and replaced them with legal principles to be applied
throughout the country in the “King’s Bench” courts. This led to a system of consistent
justice that became known as the Common Law of England. Those principles crossed
the Atlantic to the North American colonies, and they remain the
basis for US common law today. It is a rich legal tradition that
stretches back nearly a millennium.
What has this to
do with the Normans coming, as mentioned in title above? You may recall that the
first king of England after the Battle of Hastings was William I, also known as
“William the Conqueror.” What you might not realize is what he conquered was
England. He invaded from Normandy (Northern France) and defeated the forces
of King Harold. Little did Guillame le Conquerant know how his “Norman
Conquest” would reverberate through the centuries. Its echoes were heard, of
all places, in Ohio a few years ago.
The Facts
In 1955 a couple
named Frey sold some land near Cincinnati to the Monfort Supply Company. The
land was subject to an easement (a right of way) for an oil pipeline that ran
underground from Texas to northwestern Ohio. The easement provided that the pipeline
company could, if necessary, access the property to make repairs. So far, so
good; but there was a problem: the deed that the Freys gave Monfort said the
easement was recorded in “Deed Book 2832.” In fact, it was recorded in Deed
Book 2382.
In 1986 Monfort
subdivided the land for single-family homes, and the Ranieris bought a house in
the new subdivision. The deed the Ranieris received warranted that the title to
the land was “Clear, Free and Unimcumbered” [sic], and it promised that Monfort
would defend the title against all claims of defect. The deed did not mention
the easement outright; it only referred to a plat book that referred to an easement
in the nonexistent “Deed Book 2832.” If anyone did a title search, they didn’t
find the easement.
In 2001 Mr. and
Mrs. Kohlbrand bought the house from the Ranieris, and soon after moving in
they learned of the pipeline company’s legal right to come onto their property.
They were not amused. They had paid for a clean title, but they got property
that, being subject to an easement, was worth less than what they paid.
The Kohlbrands promptly
sued the Ranieris, who promptly sued Monfort to force it to make good on the
promise to defend the title. The trial court agreed with the Ranieris, and
ordered Monfort to pay all the Ranieris’ attorneys’ fees and court costs plus
any damages to be awarded to the Kohlbrands in their suit against the Ranieris.
The Appeal
When Monfort appealed
the decision, it encountered the Honorable Mark P. Painter, a veteran of the
appellate bench who apparently does not tolerate specious arguments and
legalese. Writing for a unanimous three-judge panel, Painter explained the
facts and then focused on Monfort’s tortuous argument: “that the deed referred
to the plat, which referred to the easement, which meant that the easement was incorporated
by reference into the deed.”
Under the heading “Legalism
at its Lowest,” Judge Painter made quick work of this
pettifoggery with the simple declarative sentence, “Not so.” He pointed out,
“If Monfort had wanted to create an exception for the pipeline easement, it
simply could have. But it did not.” And the plat reference does not save
Monfort because “the reference to the easement in the plat was wrong.”
Monfort’s lawyers also
argued that all their client had been obliged to do was to convey a “marketable”
title and that a marketable title does not have to be free of defects, it only
has to be good enough to satisfy the ordinary buyer. In the lawyers’ words,
“Although a ‘clear title’ is one that is not subject to any restrictions, [this
case] involved a ‘free and clear’ title, which is the same as a marketable
title.” (Actually, the case involved a “clear, free and unimcumbered” title,
but let’s not pick nits.)
With all apparent
sincerity, Monfort seemed to be saying that a “free and clear” title is not as
good as a “clear” title. At which point Judge Painter began to hear echoes from
1066, as his opinion explains.
Free and clear mean the same thing. Using both is an
unnecessary lawyerism. Free is English; clear is from the Old
French cler. After the Norman Conquest, English courts were held in
French. The Normans were originally Vikings, but after they conquered the
region of Normandy, they became French; then they took over England. But most
people in England, surprisingly enough, still spoke English. So lawyers started
using two words for one and forgot to stop for the last 900 years.
So free and clear do not mean
separate things; they mean, and were always meant to mean, exactly the same
thing. Just as null and void and due and payable
mean the same thing. All of these couplets are redundant and irritating … and
they invite just what has happened here – an assertion that they somehow have
different meanings.
The Norman Conquest was in 1066. We can
safely eliminate the couplets now.
Hear the Echoes
As I read this
opinion I started thinking more about the effect the Norman Conquest has had on
legal writing over the centuries. Because of its ancient roots, the law uses
terminology that most English speakers find supremely inane. For example, in
your “last will and testament” (itself a couplet) after perhaps leaving some
money to charity, you want to give everything else to your children. But you can’t simply say so. No, you must say you give, devise and bequeath the
rest, residue and remainder of your estate to them. (“Estate,” by the way,
is from Latin via Old French.)
Similarly, if you
buy my house, the contract doesn’t just say I “sell” it to you. Certainly not.
It says that I convey and grant to you all my right, title and
interest in the property. Other examples of this silliness include fit
and proper, metes and bounds (a way to describe property lines), final
and conclusive, and so on. Lawyers rationalize this practice by saying that
the phrases have become “terms of art,” have well accepted meanings, and must
be perpetuated lest we invite more goofy arguments like those in the Ohio case.
But the fact is
that lawyers often use these expressions because we are lazy. We read them in form
books or someone else’s document, and we copy/paste them into “our own” work
product. It’s a shame we cannot break the surly bonds of William the Conqueror
and write what we mean in simple English sentences.
Most professionals —
scientists, philosophers, physicians, and others — have their own special argots,
of course. But lawyers are masters of the abstruse; we use a style and
vocabulary that makes our work seem harebrained to some and incomprehensible to
many. We throw in words from Old English and Old French (“Law French” it is
sometimes called) plus Latin expressions such as:
● res ipsa loquitur (“the thing
speaks for itself”)
● habeas corpus (“produce the body”)
● ipso facto (“by the fact itself”)
● stare decisis (“it stands decided”)
Another vestige of
the Norman Conquest is our affinity for postpositives — words that
follow the word they modify, like adjectives do in French. There are more of
these than you might suppose: attorney general, surgeon general, heir
apparent, prince regent, and arms akimbo, to name
a few. Postpositives are curious little gems; because the noun comes first, the plurals seem
backward: attorneys general and surgeons general, for
example.
We can’t blame
William the Conqueror for all the muddled legal writing we see today but, to
quote Judge Painter, “Would that Harold had not lost the Battle of Hastings.”
# # #
Coming
next: Negative pregnants,
malpractice in Michigan, and what is a bank?
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