Ellen,

I am not sure that I understand the question. If you are asking if an attorney's affidavit is curative in all instances, I would have to say no. I have seen attorney's affidavits on the land records which provide additional information to make it easier for the abstractor to follow. I ran into one of these recently in the New London land records. Someone back in the l920's included the wrong legal description in the deed. For the next 70 years no one picked up on the mistake. In the mid l990's some attorney caught the mistake, and put an affidavit on the land records to explain what had happened, and that the surviving heirs of the title holder executed deeds with both the correct legal description and incorrect legal description. The affidavit is not curative. It is only explanatory. It is the operation of law and the conduct of the title holder's in the chain that determine whether there is a basis for an exclusion vis a vis the passage of time. There are instances in which a title holder's affidavit may be curative (i.e. release of an old mortgage by affidavit when the mortgagee can not be found). However, this is by operation of statute. As to whether the passage of time creates an exclusion, this also is determined by law (i.e. statute of limitations on collection of tax liens).

If I were performing the search I would note all pertinent information in the abstract in order for the closing attorney and title insurer to reach an informed decision as to whether the passage of time has given rise to an exclusion. I would think that they would need to have this information in order to make this determination. If I am acting in the capacity of an abstractor I merely report the information as completely and correctly as possible. I do not fix the defects in title.

If I am acting in the capacity of a closing attorney, I would want to know if the title insurance carrier is willing to insure over the matter. If not, I think I would be looking for a release of the encumbrance or some other remedy at law acceptable to the title insurer sufficient to make them comfortable with insuring it.

If I were representing the buyer, I think I would recommend that they pass on the deal if marketable title could not be produced by the seller. If I were representing the seller, I would recommend that they have a word with their title insurer if title were not marketable.

I have seen some real estate transactions grow into nightmare litigation in which the buyer is suing for the refund of his deposit, and the seller is countersuing for specific performance of the sales contract. The issue being whether the defect in title is such that it renders the title unmarketable. At this point, it is the ruling of the court not the opinion of the attorney that
determines whether the title is marketable. Opinons of attorneys are not law. They are explanations or interpretations of the law. The court and the legislature are the parties entrusted with making law.

In so far as the low esteem in which attorneys are held, that appears to be nothing new. There is a great line from one of Shakespeare's plays. I forget which one. It may be "Richard the Third"..."The first thing we do is kill all the lawyers." So it appears the the low opinion dates back centuries. It is an undeserved reputation. The attorneys I work with are honorable and represent their clients to the best of their abilities.