California Evidence Section Code 622 is a powerful tool that can be contractually added to any negotiations in any state, and therefore, CA Code 622 isn't necessary to provide the same assurances to a contract. Code 622 provides: “The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.”
If you don't live in California and don't have an equivalent evidentiary code in place in your state, then you can simply add the language in any negotiations and as a matter of contract have the same presumption in effect as Code 622 offers. You simply add that the facts recited are conclusively presumed to be true between the parties and if the other party signs off, then it is binding. Here is why.
A CONCLUSIVE PRESUMPTION are facts once established as conclusive then no other evidence can be submitted to dispute them. Conclusive evidence is evidence that cannot be controverted or argued doesn't exist (nonsensical), and is particularly powerful when the evidence is on point to establishing the requirements in a statute as having been met as between the parties. Therefore, a recital is a document that lays out the facts between the parties. Can there be affirmative defenses that can still apply if the evidence and facts are not conclusive to prove land ownership but for a corruptible court or judge's bias to favor one party over the other?
Of course, a person should always put forth any affirmative defense if the threshold of evidence or facts are not conclusive. One such affirmative defense is 'INSUFFICIENT EVIDENCE'. Okay, so let us put this to work in a hypothetical example involving heirship property or property intended under laws of succession to go to a legal Indian heir. The other side or party presents a piece of paper, or deed and wants the court to "sign off" the deed is a valid piece of paper (he/she really, really wants to sign off).
First, know that heirship rights are legal rights to both legal and beneficial title to land. They are effective the moment the testator, if there is a Last Will or the Indian decedent dies. Another way to think about it then is the heirship rights and interests in the Indian land occurred and are vested over any alleged third-party interests. Under these facts, and when controlling federal law is violated, there could never have been a valid, legal "conveyance". A conveyance means for consideration paid to the true legal Indian heir owner with CONSENT.
The affirmative defense should read LIKE the following in your response or any pre-filings:
Title was duly perfected by vestige in the legal heir under operation of law by succession and as a result (Indian Defendant heir/Indian Plaintiff heir) has an immediate right to possession.
Indian Defendant/Plaintiff alleges that at no time under these facts did (xyz state court) have authority to execute a deed, and to violate the applicable federal law (cite to an Act(s) of Congress).
Indian Defendant/Plaintiff alleges there is no contract provision, recorded or not, vests or under any alleged Oklahoma State power applies to the NDN land at issue then or now.
Indian Defendant/Plaintiff alleges that at no time were presumed heirs or third-parties an agent or empowered to speak for the legal heir, and lacked all legal and beneficial interest in which to convey.
These facts are conclusively presumed between the parties.
This language under #5 is particularly important if you prefile and record a document, giving 30 or 60 days to refute the claims. Failure to respond is binding; failure to produce evidence sufficient to overcome these facts go to the heart of this affirmative defense.
There are other numbered paragraphs to add but this is intended to be an overview. Set up a consultation to find out how I can help!
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