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Curative by Affidavit: Beware

In spite of all kinds of modernization (from manual Royal typewriter with carbon paper to magic laptops that kick out leases and online title searches) some things haven’t changed when we set out to cure title.

Let’s play a quick word game. Say the first word that comes to your mind when I say “curative.” My bet is that for at least 90 percent of the landmen and lawyers the first word was “affidavit.” Usually it’s the lawyer (in his drilling title opinion) who requests the curative and the landman who heads out to find someone who will sign the properly prepared affidavit. Sometimes they will even swear to the facts presented.

Curative is required then the documents of record (and other documents provided to the lawyer) don’t allow him to certify title into our lessor. Usually it is required because those documents, strictly interpreted, just don’t exactly show that our lessor owns the subject property. That would be the case when proper curative could not be accomplished. That is when we go to the boss with “we made a pretty good deal on that lease, but we didn’t exactly lease the mineral owner. If you have never been there, you probably will. If you live long enough.

It reminds me of the old fighter pilot saw: There are only two kinds of pilots. Those who have landed with their wheels up and those who are going to land with their wheels up. But that’s another story.

Affidavits are often used to clear up name ambiguities (as in is James Samuel Smith really one and the same as Sam Smith (or is Sam the son or cousin)?

I have taught for years that affidavits are at best, only as good as the truth contained therein, and can be of great value provided the “facts” recited are actual and accurate statements. By that I mean provable in a court of law.

There is lore that many counties had an affidavit signer hanging around the courthouse coffee shop most days, ready to sign your affidavit for breakfast, coffee and a donut, lunch or a few drinks – depending on the time of day. They had the uncanny ability to remember almost anything, as long as you provided the information.   Remember: there is no penalty of perjury for even lying in an affidavit unless it contains a jurat (swear words, if you get my drift).

Any time we need curative it means that we need something to confirm that we have leased the right party (or the right property) or to clarify just who the right party is or was. Other than an affidavit of identity, all curative documents dealing with the chain of title or ownership must contain words of grant to be effective.

We are all familiar with the subordination by the bank of the lease we took from the farmer. We must get the bank to sign onto the lease because until the mortgage is paid off the farmer doesn’t really own the property.

Curative documents typically correct the named grantor or property– correction deeds and correction leases for example. An affidavit of identity can be used to confirm the grantor name is one and the same as whomever; however, a correction of description should contain words of grant by the grantor.

Stipulations of interest with cross-conveyancing by all parties with a claim are wonderfully effective.

Affidavits of non-production or non-development are worthless and dangerous if they are not accurate. We don’t want to be drilling on someone else’s HBP lease. Be very careful when an interested party is signing the affidavit – this would fall under the category of self-serving affidavit. Also, be suspicious when you see self-serving affidavits in the title chain.

Remember this: just as sayin’ it don’t make it so, it is also true that writing it down don’t make it so.


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