Legal Question in Real Estate Law in California

Re: real estate sale with a finger print

To add to Attorney Whipple's excellent analysis, the second issue to add to this is that of title insurance. Pressumably, when the property was sold, there was a policy of title insurance issued by a California Title Company. As such, the transfer of title is insured, and the vesting of title in the name of the buyer is guaranteed by that title company. As such, even if the deed is ultimately found to be defective, the title company owes an obligation to the buyer to take whatever action is necessary to defend title in the buyer's name, including filing suit to quiet title. My guess is that someone at the title company (who are generally very conservative when it comes to issues of defective documents) reviewed this and is of the opinion that her thumb print was more than sufficient.

If you are potentially thinking that this is a way to undo the transaction your grandparents entered into, its going to be a tough battle. If you are simply ensuring that the transaction was legitimate, I think that even though there is no direct case law on point (thank you Attorney Whipple), the intention was pretty clear that they intended to sell the property, and she intended for her thumb print to be her signature. I also assume it was Notarized, which means it was acknowledged to be intended to replace her signature, and there is a witness to the fact that she was not under obvious duress to sign (thumb-print) it. I assume they did receive the proceeds, so they received consideration for the sale. Finally, if no title policy was issued, then the buyer might have a much more difficult time defending this.

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Re: real estate sale with a finger print

Mr. Whipple's analysis is again excellent and well researched. As a practical matter, I doubt any judge would invalidate the sale. The transfers of property in California must be in writing [I do not think that code section says anything about whether the signature must be "written", but certainly the concept of "written" has been expanded to include computer generated signatures, faxed or e-mailed, scanned copies of written documents, etc.]. The purpose of a signature [often the witnesses do not actually see the person signing, do not have any idea who the person is, and sign theri names so it is impossible to determine who the witness is] is to provide some evidence that the person did physically see and agree to the document. Signatures can be forged; finger prints are unique to each individual. I think a judge would conclude that the finger print is actually more reliable than a written signature.

Re: real estate sale with a finger print

After a search of California cases an treatises, I conclude that the law on this particular subject in California is undecided. Also, there seems to be very little case law on this subject in other states. To the limited extent appellate courts have discussed this subject in other states, the general drift seems to be that a person may sign an instrument effectively by making any mark that he or she intends to be a signature, and that it need not be the person's name, or even words. It is, for example, well accepted that an illiterate person can "sign" an instrument with an "X" or cross (Latin: "signum").

The most nearly on-point California case seems to be In re Walker's Estate (1895) 110 Cal. 387, in which case the California Supreme Court in a 4-3 decision held that a will was valid, even though one of the witnesses had signed his initials, followed by the testator's surname - obviously a "slip of the pen," but a bare majority of the justices believed that this scrambled name was intended to be the witness's signature or mark, and hence the will was valid. The majority opinion goes on the review the use of various marks with the intent that they constitute a signature.

This is weak authority for the legality of a fingerprint as a signature on a deed, but perhaps more importantly, I did not find ANY contrary authority.

Now, to place this all in perspective, I must point out that the effectiveness of a deed may depend not only upon whether it is properly drawn up and executed, but also upon whether and when it has been delivered by the grantor(s) to the grantee(s), and/or recorded and indexed by the recorder.

A deed, once executed and delivered, is effective against the parties thereto and all others with knowledge, actual or constructive, of the deed; it becomes effective "against the world" upon recordation and proper indexing by the recorder. If your grandmother's name appears elsewhere in the deed, this should be sufficient for proper indexing in the grantor register. Otherwise, the recorder probably couldn't do a complete indexing and the recording might be considered defective.

So, the bottom line is that the fingerprint is more likely than not a sufficient signature, but there is very little legal support for it being legal, or not.