Martha's Vineyard, Massachusetts – Over time any property's title will likely play host to some unexplained mysteries. Take, for example, this property on 3.2 acres overlooking Nantucket Sound. In 1890 the land was subdivided into 10 lots which were given away by a clothing store in Boston. If you bought a man's suit, you got a free lot. So it was that in 1894 one such lot, designated "Lot 159," was conveyed to a Charles F. Hill.

Out of the Past: The unexplained makes this property unmarketable.

By 1970 someone assembled the 10 lots to create the aforementioned 3.2 acres, and a vacation home was built over former Lot 159.

In 1990 First American insured a first mortgage against the 3.2 acres for $187,000. By 1993 the loan defaulted and the lender foreclosed.

The lender interested a buyer who, in turn, hired an attorney to examine the title.

The attorney has a problem with old Lot 159: There is no deed of record out of Charles F. Hill and, therefore, no chain of title linking Hill with the supposed owner in 1970.

Even though no one else claims ownership the prospective buyer won't go forward until the lender can provide marketable title, free of cloud or defect.

First American hired attorneys to file a lawsuit to quiet title. It turns out there were three Charles Hills listed in the Boston City Directory around 1894. Our task is to identify the true past owner and join in this suit all of his living descendants, to eliminate their interests as a matter of record.

Midway in the court action legal expenses top $30,000.

The question of how far back one should search land records is usually governed by local custom and practice. In some localities a 10-year search is customary, in others it may be 60 years.

In most jurisdictions an attorney's failure to spot this issue would probably not be considered negligent, and there would be no liability under the attorney's opinion letter.

And even if a case for negligence could be made, in all likelihood the attorney would not be obligated to take any action in the absence of a real live adverse claim.

Other forms of title assurance typically reflect only what is currently shown by public records, so there is no protection against ambiguity in a chain of title and no marketability coverage.

(Note: standard marketability coverage not available in Texas.)