Titles - Persons authorized to execute documents

Learning Outcomes

This article examines the legal rules governing who is authorized to execute documents transferring title to real property, including:

• Distinguishing the capacity requirements for grantors, such as adults of sound mind, minors, intoxicated persons, and judicially declared incompetents, and predicting when a deed will be classified as void versus voidable on MBE-style fact patterns.
• Identifying which signatures satisfy the Statute of Frauds, including signatures by the grantor, an amanuensis, or an authorized agent, and recognizing when missing or forged signatures make a deed ineffective even against bona fide purchasers.
• Applying the Equal Dignities Rule to determine when an agent must hold written authority, how powers of attorney operate (including durable powers), and when ratification can or cannot validate an unauthorized deed.
• Evaluating the authority of fiduciaries—personal representatives, guardians, and trustees—to convey real property, and spotting limits imposed by court orders, statutes, or governing instruments.
• Assessing the authority of corporate officers and other entity representatives to execute deeds, the consequences of noncompliance with bylaws or resolutions, and the extent to which apparent authority protects purchasers on the exam.

MBE Syllabus

For the MBE, you are required to understand the essential elements for a valid transfer of title by deed, including the authority of the person executing the document, with a focus on the following syllabus points:

• Identifying the requirements for a valid deed, including execution formalities.
• Assessing the capacity of a grantor (e.g., minors, incompetents, intoxicated persons).
• Analyzing the validity of a signature under the Statute of Frauds.
• Understanding the requirements for execution by an agent, including Power of Attorney and the Equal Dignities Rule.
• Evaluating the authority required for corporate officers executing deeds.
• Recognizing the authority of fiduciaries such as guardians, trustees, and personal representatives.
• Distinguishing void from voidable deeds and the consequences for bona fide purchasers.
• Recognizing the consequences of improper execution (e.g., void vs. voidable deeds).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Grantor, who is 17 years old but appears much older, executes a deed conveying Blackacre to Grantee, who pays fair market value and has no knowledge of Grantor's age. The deed is:
   1. Void ab initio.
   2. Voidable by Grantor.
   3. Valid and enforceable by Grantee.
   4. Valid only if ratified by Grantor upon reaching majority.
2. Principal orally authorizes Agent to sign a deed conveying Principal's land to Buyer. Agent signs the deed in Principal's name while Principal is out of the country. In most jurisdictions, is the deed validly executed?
   1. Yes, because Agent had actual authority.
   2. Yes, because Principal ratified the act upon return.
   3. No, because Agent's authority was not in writing.
   4. No, because Agent cannot sign Principal's name.
3. A deed transferring corporate property is signed only by the corporation's Treasurer. The corporation's bylaws require deeds to be signed by both the President and the Secretary. The deed is likely:
   1. Valid, because the Treasurer is an officer.
   2. Valid, if the Treasurer had apparent authority.
   3. Invalid, because it lacks the required signatures per the bylaws.
   4. Voidable by the corporation.

Introduction

For a deed to effectively transfer title to real property, it must be properly executed by a person with the legal authority to convey the interest. This involves several key considerations, including the capacity of the grantor, the satisfaction of signature requirements under the Statute of Frauds, and, where applicable, the valid authorization of agents, fiduciaries, or corporate officers acting on behalf of the property owner. Understanding who is authorized to sign a deed and the formalities required is essential for determining the validity of a conveyance and resolving chain-of-title issues on the MBE.

Key Term: Deed
A written instrument that transfers an interest in real property from a grantor to a grantee.

Key Term: Grantor
The person or entity transferring title to real property by deed.

Key Term: Grantee
The person or entity receiving title to real property by deed.

Key Term: Void Deed
A deed that is a complete nullity from the outset; it transfers no title, even to a subsequent bona fide purchaser.

Key Term: Voidable Deed
A deed that is valid and passes title unless and until it is set aside by the person entitled to avoid it (e.g., a minor or non-adjudicated incompetent).

Key Term: Bona Fide Purchaser (BFP)
A purchaser who gives value and takes without notice of prior claims or defects in title.

On the exam, questions about validity of deeds often turn on whether the person who signed had authority or capacity, and whether any defect makes the deed void (no title passes to anyone) or merely voidable (title can still flow to a BFP). Keep that distinction in mind as you read each section.

Capacity of Grantor

The person conveying the property (the grantor) must have the legal capacity to execute a deed. Lack of capacity generally makes the deed voidable at the option of the grantor (or their representative).

Minors (Infants)

Individuals below the age of majority (typically 18) generally lack the capacity to contract, including the capacity to convey real property. A deed executed by a minor is voidable by the minor grantor before or shortly after reaching the age of majority. The minor can choose to disaffirm the conveyance.

• The minor may disaffirm during minority or within a reasonable time after reaching majority.
• Upon disaffirmance, the minor must generally return whatever remains of the consideration, but the inability to restore benefits fully does not usually bar avoidance.
• If the minor ratifies the deed after majority (e.g., by expressly confirming it in writing or by accepting benefits for a substantial time with knowledge of the right to avoid), the deed becomes fully valid and no longer voidable.

Misrepresentation of age by the minor does not create capacity. Some states may allow the grantee to assert an equitable defense, but for MBE purposes, assume the deed remains voidable at the minor’s option.

Key Term: Voidable Deed
A deed that is effective unless and until the person with the power to avoid it (such as a minor) elects to set it aside.

Effect on third parties: Because a minor’s deed is voidable, not void, title passes to the grantee and can be transferred onward. If the minor later disaffirms, most courts allow a subsequent BFP to prevail, leaving the minor with a claim only against the original grantee. The MBE is more likely to test the basic rule—“voidable by the minor”—than this detail, but remember that voidable deeds can still feed good title to a BFP.

Mental Incapacity

A grantor who lacks the mental capacity to understand the nature and consequences of executing the deed (e.g., due to mental illness or defect) may lack capacity to make a valid conveyance. Similar to deeds by minors, a deed executed by a mentally incompetent person who has not been judicially declared incompetent is generally voidable by the grantor (or their guardian/conservator) if they later regain capacity or by their estate representative upon death.

However, if the grantor has been judicially declared incompetent and placed under guardianship, a deed executed by the grantor personally (rather than the guardian) is void.

Key Term: Guardian
A person appointed by a court to manage the personal and/or property interests of an incapacitated person (the ward).

Key distinctions for the MBE:

• Non-adjudicated incompetence: deed is voidable.
• Adjudicated incompetence with guardian appointed: deed signed by the ward (not the guardian) is void.

Intoxication

A deed executed while the grantor is intoxicated can be voidable if the intoxication is so severe that the grantor cannot understand the nature of the transaction, and the other party knew or had reason to know of the incapacity. This is analogous to contract law. Mild intoxication is not enough.

Duress and Undue Influence

A deed signed under physical duress (e.g., “sign or I shoot”) is typically treated as void. Deeds signed under economic duress or undue influence are generally voidable by the victim. On the exam, the fact pattern will usually make the level of coercion clear.

Effect of Capacity Defects: Exam Focus

• Deeds by minors or non-adjudicated incompetents: voidable.
• Deeds by judicially declared incompetents (without guardian signature) or under physical duress: void.
• Voidable deeds can still yield good title to a BFP; void deeds cannot.

Signature Requirements (Statute of Frauds)

The Statute of Frauds requires that a deed transferring an interest in real property must be in writing and signed by the party to be charged – the grantor. Without the grantor's signature, the deed is invalid.

Key Term: Acknowledgment
A formal declaration before an authorized officer (usually a notary) that the signer executed the instrument voluntarily.

Who Must Sign

• All owners whose interests are being conveyed must sign.
  • If property is owned by joint tenants or tenants in common, each must sign to convey their interest.
  • A life tenant can convey only the life estate; the remainderman must sign to convey the remainder.
• In many states, both spouses must sign to convey homestead property or community property, even if record title is in only one spouse’s name. This is more state-specific than core MBE, but you may see a question hinging on missing spousal consent.

Method of Signature

The signature can be the grantor's full name, initials, a mark, or any other symbol intended to authenticate the document. It may be written by:

• The grantor personally.
• Another person acting at the grantor’s direction.

Key Term: Amanuensis
A person who signs the grantor’s name at the grantor’s direction and in the grantor’s presence, essentially acting as a human pen, not an independent agent.

If an amanuensis signs in the grantor’s presence and at the grantor’s direction, the signature is treated as the grantor’s signature and does not raise Equal Dignities issues (because the amanuensis is not exercising independent discretion).

It does not need to be witnessed or notarized for validity between the parties in most states, although acknowledgment before a notary is usually required for recordation. Some states require attestation by witnesses for validity as well; if the exam wants you to apply that rule, it will be stated in the fact pattern.

Acknowledgment and Recording

A deed is generally valid between grantor and grantee whether or not it is acknowledged or recorded. However:

• A deed is usually not eligible for recording unless it is acknowledged.
• Failure to record can allow a subsequent BFP to take priority under the applicable recording statute.

The MBE commonly tests the difference between validity (between parties) and recording/priority (among competing claimants).

Key Term: Forgery
The fraudulent making or material alteration of a writing (like a deed signature) with the intent to deceive.

A forged deed (one where the grantor's signature is falsified without authority) is void ab initio. It transfers no interest, even to a subsequent bona fide purchaser for value.

Contrast forgery with fraud:

• Fraud in the factum (grantor does not realize they are signing a deed at all) usually produces a void deed.
• Fraud in the inducement (grantor knows they are signing a deed but is misled about some aspect of the deal) produces a voidable deed.

Worked Example 1.1

Owner’s neighbor steals Owner’s checkbook and signs Owner’s name on a deed conveying Blackacre to Buyer for value. Buyer promptly records and later sells to BFP, who has no notice of the forgery. Who owns Blackacre?

Answer:
Owner. The original deed was forgery and therefore void. A void deed passes no title, even to a subsequent bona fide purchaser. BFP takes nothing because there was never valid title in the chain.

Execution by Agents

A grantor may authorize an agent to execute a deed on their behalf. Because deeds must be in writing, the law is strict about the form of the agent’s authority.

Key Term: Power of Attorney (POA)
A written instrument authorizing an agent (attorney-in-fact) to act on behalf of a principal.

Key Term: Attorney-in-fact
The agent named in a power of attorney authorized to act for the principal.

Power of Attorney

Authority is typically granted via a written Power of Attorney (POA), which specifically authorizes the agent to act regarding the principal's real property. The POA should generally be recorded along with, or prior to, the deed to put third parties on notice.

Key points:

• Many states require that a POA authorizing real estate transactions be acknowledged and recorded.
• A POA can be general (broad powers) or special (limited to a specific transaction or parcel).
• A regular POA terminates upon the principal’s incapacity or death; a durable POA expressly survives incapacity (but still ends at death).

Equal Dignities Rule

Most states follow the Equal Dignities Rule. This rule requires that an agent's authority to execute an instrument that is itself required to be in writing (like a deed under the Statute of Frauds) must also be created in writing. Therefore, oral authorization for an agent to sign a deed is generally insufficient, making the resulting deed invalid or voidable.

Key Term: Equal Dignities Rule
The legal doctrine requiring that an agent’s authority must be in writing if the contract the agent is to enter into on behalf of the principal must be in writing (e.g., contracts subject to the Statute of Frauds, like deeds).

Exception: The Equal Dignities Rule generally does not apply if the agent signs the deed in the principal's presence and at the principal's direction—functionally acting as an amanuensis.

Form of Signature by Agent

When an agent signs a deed, best practice is:

• “Principal Name, by Agent Name, as attorney-in-fact.”

This makes clear that the grantor is the principal, not the agent personally. If the agent signs only their own name without indicating the agency relationship, title may appear to run through the agent and could raise questions, but if the agent was properly authorized, courts usually treat the deed as the principal’s act.

Ratification

If an agent signs without proper authority, the principal may later ratify the deed by clearly adopting it (often in writing). Under the Equal Dignities Rule, ratification of a deed generally must also be in writing to be effective. Ratification cannot cure a deed signed after the principal’s death, because an agent’s authority ends at death.

Worked Example 1.2

Grantor orally tells Agent, "Go sign the deed selling my house to Buyer." Agent goes to the closing and signs Grantor's name to the deed while Grantor is on vacation. Buyer pays the purchase price. Is the deed validly executed under the Equal Dignities Rule?

Answer:
No. Because a deed must be in writing under the Statute of Frauds, the Equal Dignities Rule requires the agent's authority to sign the deed also be in writing (e.g., a Power of Attorney). Oral authorization is insufficient. The deed is likely invalid as to Grantor. Grantor was not present when Agent signed, so the amanuensis exception does not apply.

Worked Example 1.3

Principal signs a written POA authorizing Agent “to sell and convey Blackacre.” Agent signs a deed in Principal’s name conveying Blackacre to Buyer while Principal is alive but incompetent. The POA is not labeled “durable.” Is the deed valid?

Answer:
No. A standard POA terminates upon the principal’s incapacity. Because Principal was already incompetent when Agent signed, Agent’s authority had ended. The deed is unauthorized and ineffective against Principal; it is treated like a forgery for title purposes.

Execution by Fiduciaries and Other Representatives

Apart from ordinary agents, various legal representatives may execute deeds in a representative capacity.

Key Term: Personal Representative
An executor or administrator appointed to manage a decedent’s estate, including collecting assets and distributing them to beneficiaries.

Key Term: Trustee
A person or entity holding legal title to property for the benefit of another pursuant to a trust instrument.

These actors derive their authority from law (court appointment, will, or trust instrument), not from a POA.

Personal Representatives (Executors and Administrators)

A personal representative can convey estate property as authorized by:

• The will;
• Court order; or
• Statutory powers.

The deed is executed by the personal representative in that capacity (e.g., “Jane Doe, as Personal Representative of the Estate of John Smith”). Because the estate—not the personal representative individually—is the grantor, the representative’s individual lack of personal title is irrelevant so long as authority exists.

Guardians and Conservators

A guardian or conservator appointed to manage an incompetent person’s property may convey the ward’s real estate only in accordance with court authority and statutes. A deed signed by the ward (after adjudication) is void; a deed signed by the guardian within the scope of court authority is valid.

Trustees

A trustee may convey trust property as permitted by the trust instrument and applicable trust law. A deed by a trustee should clearly indicate the trustee capacity (e.g., “Tina Trustee, as Trustee of the Smith Family Trust”). If the trustee acts outside their powers, the deed may be voidable but not automatically void; BFP protection may be available depending on the jurisdiction and the apparent scope of the trustee’s powers.

Execution by Corporations and Other Entities

Corporations, being legal entities, execute deeds through authorized individuals.

Key Term: Officer
A corporate agent (e.g., President, CEO, Treasurer, Secretary) who has authority, actual or apparent, to act on behalf of the corporation.

Key Term: Corporate Resolution
A formal action by a corporation’s board of directors authorizing a specific transaction or conferring authority on designated officers.

Corporate Authority

Authority typically stems from:

• The corporation's bylaws, which often specify which officers (e.g., President, Secretary) are authorized to execute deeds; and/or
• A resolution by the corporation's Board of Directors specifically authorizing the transaction and empowering certain officers to execute the necessary documents.

Modern corporate statutes often provide that certain officers (such as the President) have apparent authority to bind the corporation in ordinary-course transactions. For extraordinary transactions (e.g., sale of all or substantially all corporate assets), explicit board approval is usually required.

Signatures and Seal

Statutes or bylaws may dictate:

• Which officers must sign (often requiring signatures from two different officers).
• Whether the corporate seal must be affixed (in many jurisdictions, the seal is no longer essential but may create a presumption of authority).

Failure to comply with internal authorization requirements can render the deed voidable by the corporation, not void. Third parties (especially BFPs) may be protected if they reasonably rely on:

• The apparent authority of a corporate officer; and
• Public filings or corporate resolutions they have reviewed.

Partnerships and LLCs (Exam Note)

While less frequently tested, remember:

• A general partner has authority to bind the partnership, including by deed, in the ordinary course of partnership business.
• In LLCs, the operating agreement or statute will specify whether managers or members have authority.

Worked Example 1.4

MegaCorp's bylaws state that deeds must be signed by the President and attested by the Secretary. The President, acting alone, signs a deed conveying corporate property to Buyer, who pays fair value and records. MegaCorp's board later claims the conveyance was unauthorized. Is the deed likely valid against MegaCorp?

Answer:
The deed is likely voidable by MegaCorp, not automatically void. The President lacked actual authority under the bylaws, which required a second officer’s attestation. However, Buyer may argue that the President had apparent authority to convey corporate property. Whether Buyer prevails will depend on what Buyer reasonably believed and whether Buyer had notice of the bylaw requirement. On an MBE question, the safer answer is usually that the deed is voidable by the corporation, with apparent authority as a potential—but not guaranteed—defense for Buyer.

Consequences of Improper Execution: Void vs. Voidable Deeds

Understanding the effect of execution defects is critical for resolving title disputes.

Key Term: Void Deed
A deed that is a legal nullity; it conveys no title and cannot be the root of good title in any subsequent transferee, even a BFP.

Key Term: Voidable Deed
A deed that is effective unless and until it is rescinded by the person holding the power to avoid it (e.g., a minor, non-adjudicated incompetent, or victim of undue influence).

Common Void Deeds

• Forged deeds (including unauthorized signatures after death or incapacity).
• Deeds signed by adjudicated incompetents without guardian action.
• Deeds signed under physical duress.
• Deeds where the grantor did not know they were signing a deed at all (fraud in the factum).

A void deed cannot pass title. Every subsequent grantee, including a BFP, gets nothing.

Common Voidable Deeds

• Deeds by minors.
• Deeds by non-adjudicated incompetents.
• Deeds signed under undue influence or economic duress.
• Deeds induced by fraud in the inducement.
• Deeds by intoxicated persons meeting the incapacity standard.

Until avoided, these deeds pass title. If the property is conveyed to a BFP before avoidance, many courts protect the BFP and cut off the original grantor’s ability to reclaim the land (leaving only a damages remedy against the immediate grantee).

Worked Example 1.5

Seventeen-year-old Sam signs and delivers a deed conveying Blackacre to Buyer for full value. Buyer records and later sells to BFP, who pays value without notice of Sam’s age. When Sam turns 19, he seeks to recover Blackacre from BFP. Who prevails?

Answer:
BFP. Sam’s deed was voidable, not void. Sam could avoid the deed as against Buyer, but once title passed to a bona fide purchaser without notice, most courts protect the BFP. On the MBE, focus on recognizing that the deed is voidable by Sam, and that voidable deeds can feed good title to BFPs.

Summary

Valid execution of a deed requires the grantor to have legal capacity (being of majority age and mentally competent) and to sign the document as required by the Statute of Frauds. Forged deeds and deeds executed by judicially declared incompetents without guardian involvement are void and transfer no title, even to BFPs. Deeds by minors, non-adjudicated incompetents, intoxicated persons, or victims of undue influence are usually voidable and may still pass good title to a BFP.

If an agent executes a deed, their authority must generally be in writing under the Equal Dignities Rule (unless signing in the principal's presence as an amanuensis). Corporate deeds require execution by officers with proper authority, typically documented in bylaws or a board resolution, and fiduciaries like personal representatives, trustees, and guardians must act within their legal powers. Defects in authority or execution may render a deed voidable or, in cases like forgery, void, which has dramatic consequences for subsequent purchasers.

Key Point Checklist

This article has covered the following key knowledge points:

• A deed must be in writing and signed by the grantor whose interest is being conveyed.
• Grantors must have legal capacity; minors and non-adjudicated incompetents produce voidable deeds.
• Deeds by judicially declared incompetents (without guardian action) and forged deeds are void.
• Intoxication and undue influence can render a deed voidable in appropriate circumstances.
• The Statute of Frauds requires the grantor’s signature; acknowledgment is usually needed for recording but not for validity between the parties.
• An amanuensis signing in the grantor’s presence can validly sign without written agency authority.
• Agents executing deeds generally require written authority (Power of Attorney) under the Equal Dignities Rule.
• A regular POA terminates at incapacity or death; a durable POA can survive incapacity but not death.
• Fiduciaries such as guardians, trustees, and personal representatives can execute deeds within the scope of their legal authority.
• Corporate deeds must be executed by officers with actual or apparent authority, usually as identified in bylaws or board resolutions.
• Lack of proper corporate authorization typically makes a deed voidable, not void, with possible protection for BFPs.
• Void deeds cannot pass title to anyone; voidable deeds can pass good title to a bona fide purchaser.

Key Terms and Concepts

• Deed
• Grantor
• Grantee
• Void Deed
• Voidable Deed
• Bona Fide Purchaser (BFP)
• Forgery
• Power of Attorney (POA)
• Attorney-in-fact
• Equal Dignities Rule
• Amanuensis
• Acknowledgment
• Guardian
• Personal Representative
• Trustee
• Corporate Resolution
• Officer