Deeds and Conveyances
A confirmatory instrument is, in effect, an explanation and correction of an error in a prior instrument. As such, it passes no title. See Scaplen v. Blanchard, 187 Mass. 73, 72 N.E. 346 (1904).
However, although it said that a confirmatory deed passes no title, that rule applies when the grantor in the confirmatory deed purports to correct or explain something in the prior deed executed by him or her, or to give the new deed in substitution of a lost earlier deed If the deed is "original," albeit labeled "confirmatory," title no doubt passes thereunder, for the deed must be construed most strongly against the grantor, and will be interpreted to pass all interests that the grantor may have, unless specifically excepted. See Patton on Title, West Publishing Company (1957), Section 213, et. seq.
There are limits to the use of confirmatory deeds. For example, if the confirmatory deed attempts to substitute a new grantee (as opposed to correcting the spelling of the grantees name) or attempts to reduce the amount of property which was intended to be conveyed, the confirmatory deed would be suspect. In other words, if the grantor tried to use a confirmatory deed to "take away" something included in the first conveyance (i.e., to eliminate a lot or some other land that was described in that conveyance or to add or strike the name of a grantee, or even perhaps change the tenancy) the confirmatory deed would not accomplish this result.
Sometimes when a confirmatory deed is given the grantees, whose deed is being confirmed, have (or may have) already parted with the title and conveyed it to a third person. If the confirmatory deed names only the original grantees the title might be considered as getting "stuck" in them and not flowing to the new owner. By the same token, it sometimes becomes unmanageable to run out the grantees to see who the present owners are—especially if the original grantees are developers who created a subdivision and sold off many lots. To resolve this, and to make sure the title gets where it should go, the deed should name the original grantees, after which this language should be added following their names: " . . . and to those persons claiming by, through or under [him] [her] [them] by instruments of record." This language will "force" the title down the chain. See Mendler,Massachusetts Conveyancer's Handbook with Forms, The Lawyers Cooperative Publishing Company (Fourth Edition, 1984), §18.5.
1 This is important in such instances as, for example, conveyances that concern agricultural and horticultural land under G.L.c. 61A. If a confirmatory deed in fact passed title, it could "restart" the waiting periods concerning, or the tax liability imposed for the conveyance tax. Fortunately, in this regard the statute specifically excludes "deeds which correct, modify, supplement or confirm a deed previously recorded."