James H. Davis, Individually and D/B/A Jd Minerals, and Jdmi, Llc v. Mark Mueller , 60 Tex. Sup. Ct. J. 1085 ( 2017 )

IN THE SUPREME COURT OF TEXAS
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NO . 16-0155
444444444444
JAMES H. DAVIS, INDIVIDUALLY AND D/B/A
JD MINERALS, AND JDMI, LLC, PETITIONERS,
v.
MARK MUELLER, RESPONDENT
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS
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Argued March 23, 2017
CHIEF JUSTICE HECHT delivered the opinion of the Court.
JUSTICE BOYD did not participate in the decision.
Texas law has long given effect to a general conveyance of all the grantor’s property in a
geographic area, such as a county,1 the state,2 or even the United States,3 thereby enlarging an
accompanying conveyance of property specifically described.4 We did not do so in J. Hiram Moore,
1
E.g., Holloway’s Unknown Heirs v. Whatley, 131 S.W .2d 89, 91–92 (Tex. 1939).
2
E.g., Smith v. Westall, 13 S.W . 540, 540 (Tex. 1890).
3
E.g., Tex. Consol. Oils v. Bartels, 270 S.W .2d 708, 710 (Tex. Civ. App.— Eastland 1954, writ ref’d).
4
E.g., Holloway’s Unknown Heirs, 131 S.W .2d at 91–92.
Ltd. v. Greer because we concluded that the deed was ambiguous.5 The court of appeals reached the
same conclusion in this case, but we think the deed here is clear. Accordingly, we reverse the court
of appeals’ judgment6 and render judgment for petitioner.
I
In 1991, Virginia Cope,7 a Georgia resident at the time, conveyed to JD Minerals her mineral
interests in ten vaguely described tracts in Harrison County, Texas.8 JD Minerals is James H. Davis’s
5
172 S.W .3d 609, 614 (Tex. 2005).
6
485 S.W .3d 622 (Tex. App.— Texarkana 2016).
7
At the time, Cope’s name was Virginia Rose Mitchell. She executed other instruments involved in the case
as Virginia Rose Mitchell, Virginia Rose Mills Cope, and Virginia Rose Purvis Cope.
8
The conveyance listed:
All of those certain tracts or parcels of land out of the following surveys in Harrison County, Texas
described as follows:
1) 704.00 acres out of the G. W . PETTY, ET AL, A-582, ET AL, known as the “AMOCO
PRODUCING COMPANY - JOHN HARRISON JR ‘B’.”
2) 671.260 acres out of the JOSEPH E W HITE, ET AL, A-755, ET AL, known as the “AMOCO
PRODUCING COMPANY - CHARLOTTE M HYNSON GAS UNIT.”
3) 671.260 acres out of the JOSEPH E W HITE, A-755, known as the “AMOCO PRODUCING
COMPANY - CHARLOTTE MORRIS HYNSON.”
4) 704.00 acres out of the S. T. W ATTS, A-739, known as the “PEAK ENERGY CORPORATI0N
- W ILLIAM H LANE.”
5) 644.200 acres out of the J. S. BELL, A-96, known as the “PEAK ENERGY CORPORATION -
W ILLIAM H LANE.”
6) 704.00 acres out of the G. JOHNSON, ET AL, A-359, ET AL, known as the “AMOCO
PRODUCING COMPANY - MCELROY-CHEATHAM UNIT.”
7) 677.800 acres out of the HENRY VARDEMAN, A-726, known as the “KEY PRODUCTIONS
COMPANY - BEN POPE ET AL.”
8) 40.000 acres out of the S. SHOTO, ET AL, A-632-722, known as the “PETROLEUM
PRODUCING MANAGEMENT - TR #34 BETH GR NO UT.”
9) 43.000 acres out of the S. SHOTO, ET AL, A-632, known as the “PETROLEUM PRODUCING
MANAGEMENT - TR #40 BETH GR NO UT.”
lO) 625.550 acres out of the E. A. M ERCHANT, A-430, known as the “EP OPERATING
COMPANY - W HITE-DAVID.”
2
business name, and we refer to both of them as “Davis.” The conveyance was on a printed form with
tiny text. The list of tracts was followed by this sentence:
Grantor agrees to execute any supplemental instrument requested by Grantee for a
more complete or accurate description of said land.
A three-sentence paragraph after the sentence just quoted contained a two-sentence Mother Hubbard
clause and a general granting clause:
The “Lands” subject to this deed also include all strips, gores, roadways, water
bottoms and other lands adjacent to or contiguous with the lands specifically
described above and owned or claimed by Grantors. If the description above proves
incorrect in any respect or does not include these adjacent or contiguous lands,
Grantor shall, without additional consideration, execute, acknowledge, and deliver
to Grant[ee], its successors and assigns, such instruments as are useful or necessary
to correct the description and evidence such correction in the appropriate public
records. Grantor hereby conveys to Grantee all of the mineral, royalty, and overriding
royalty interest owned by Grantor in Harrison County, whether or not same is herein
above correctly described.
About the same time, it so happened that James Hammond Mills, a Florida resident, conveyed his
mineral interests in two tracts, also in Harrison County, also to Davis.9 The conveyance was on an
identical form with a similarly vague description of the tracts followed by the same provisions.10
In 2011, Cope and Mills, independently, deeded to respondent Mark J. Mueller, a landman
who had contacted them, the interests they had conveyed, respectively, to Davis in 1991. After
9
The conveyance listed:
All of those certain tracts or parcels of land out of the following surveys in Harrison County, Texas
described as follows:
1) 704.00 acres out of the G. W . PETTY, ET AL, A-582, ET AL, known as the “AMOCO
PRODUCING COMPANY - JOHN HARRISON JR ‘B’.”
2) 704.00 acres out of the G. JOHNSON, ET AL, A-359, ET AL, known as the “AM OCO
PRODUCING COMPANY - MCELROY - CHEATHAM UNIT.”
10
Mueller contends that Cope and Mills received the form conveyances unsolicited in the mail.
3
obtaining the deeds from Cope and Mills, Mueller sued Davis to quiet title to the mineral interests
(the “title claim”).11 Mueller asserted that the property descriptions and general granting clause in
the 1991 deeds were insufficient to satisfy the requirement of the Statute of Frauds12 that property
conveyed be identified with reasonable certainty.13 Mueller also sued for conversion of the royalties
and payments obtained from the mineral interests, adverse possession, fraud,14 and failure of
consideration (the “other claims”). Davis raised various affirmative defenses. Both sides moved for
summary judgment on the title issue. Davis did not contend that the property descriptions in the 1991
deed satisfied the Statute of Frauds but argued that the general granting clause was sufficient to pass
title of all the grantors’ mineral interests in Harrison County. The trial court denied Mueller’s motion
and granted Davis’s without stating the grounds, and rendered a take-nothing judgment against
Mueller.
On appeal, Mueller argued that the general granting clause is ambiguous because it purports
to convey all the grantor’s interests in the county—a large amount of property—although located in
the same paragraph as the Mother Hubbard clause, a catch-all for small, overlooked interests. The
11
In 1994, Cope deeded to Charles B. Horne the same mineral interests she had conveyed to Davis. Horne, in
turn, deeded them to Mueller, first in 1996, and again in 2011, with a more legible instrument. The property descriptions
in these three deeds are as vague as or vaguer than those in Cope’s 1991 deed. The property descriptions in the 2011
deeds from Cope and Mills to Mueller are more detailed. Only the two deeds from Horne to Mueller have general
granting clauses. Davis does not argue that if he did not obtain title to Cope’s and Mills’s interests in 1991, neither did
Mueller through the later deeds.
12
T EX . B U S . & C O M . C O D E § 26.01.
13
Long Trusts v. Griffin, 222 S.W .3d 412, 416 (Tex. 2006) (per curiam).
14
Mueller sued for common-law fraud as well as for violations of Chapter 12 of the Texas Civil Practice and
Remedies Code, which imposes liability for making a fraudulent claim against real property. T EX . C IV . P RAC . & R EM .
C O D E §§ 12.001–.007.
4
court of appeals agreed, concluding that the parties’ intent is a fact issue to be decided by a jury.15
Although Mueller confined his arguments to his title claim, the court also reversed summary
judgment on his other claims of statutory fraud, conversion, and adverse possession.16
We granted Davis’s petition for review.17
II
While the Statute of Frauds requires only that certain promises or agreements be in writing
and signed by the person to be charged,18 as applied to real-estate conveyances, “the writing must
furnish within itself, or by reference to some other existing writing, the means or data by which the
land to be conveyed may be identified with reasonable certainty.”19 Forty-five years ago, we noted
that this “rule by which to test the sufficiency of the description [of property to be conveyed] is so
well settled at this point in our judicial history, and by such a long series of decisions by this Court,
as almost to compel repetition by rote.”20 Nothing since then has occurred to call the rule into
question.
The specific property descriptions in Cope’s and Mills’s 1991 deeds to Davis do not satisfy
the Statute of Frauds, and as we have just said, Davis does not argue to the contrary. But Texas law
15
485 S.W .3d 622, 631 (Tex. App.— Texarkana 2016).
16
Id. at 632–633.
17
60 Tex. Sup. Ct. J. 430 (Feb. 17, 2017).
18
T EX . B U S . & C O M . C O D E § 26.01.
19
Morrow v. Shotwell, 477 S.W .2d 538, 539 (Tex. 1972).
20
Id.
5
has also long regarded general granting clauses as valid and effective, a proposition Mueller does
not dispute.21 We could not give effect to a general granting clause in J. Hiram Moore, Ltd. v. Greer
because it was ambiguous.22 Mueller argues, and the court of appeals agreed, that the same is true
here. But Moore was different.
Mary Greer and her three sisters partitioned an 80-acre tract in the Railroad Survey in
Wharton County into four 20-acre tracts.23 Each received the surface estate and minerals in one tract
and a non-participating royalty interest in each of the other three tracts.24 Two of the tracts, not
Greer’s, were pooled with an adjacent tract in the Barnard Survey to form the SixS Frels unit.25 Greer
then deeded the mineral royalties produced from “[a]ll of that tract of land out of the [Barnard
Survey]” known as the SixS Frels unit.26 Greer owned no unit royalty interest in any tract in the
Barnard Survey.27 So the specific description conveyed nothing. But “[i]n addition”, the deed
continued, “it is the intent of this instrument to convey . . . all of [Greer’s] royalty and overriding
royalty interest in [Wharton County]”.28 This general grant would have included the interests she did
21
E.g., Holloway’s Unknown Heirs v. Whatley, 131 S.W .2d 89, 91–92 (Tex. 1939); Smith v. Westall, 13 S.W .
540, 540 (Tex. 1890); Witt v. Harlan, 2 S.W . 41, 41–42 (Tex. 1886).
22
172 S.W .3d 609, 614 (Tex. 2005).
23
Id. at 610.
24
Id.
25
Id.
26
Id. at 612.
27
Id.
28
Id.
6
own in the Railroad Survey. Because the deed “in effect states that Greer conveys nothing, and that
she conveys everything”, we concluded that it was ambiguous and could not be construed as a matter
of law.29
In Moore, the general granting clause created an ambiguity; in the present case, it resolves
one. Mueller does not argue that Cope and Mills, like Greer, did not own the mineral interests they
attempted to convey by their 1991 deeds. Rather, he argues that the deficiencies of the specific
descriptions cannot be cured by the general granting clause. But that is precisely the purpose of the
general grant when included with specific grants.
Mueller argues that the 1991 deeds are ambiguous because the general granting clause is in
the same paragraph as the Mother Hubbard clause. A Mother Hubbard clause is not effective to
convey a significant property interest not adequately described in the deed.30 The proximity shows,
Mueller contends, that the general grant was only of all small pieces of the specifically described
tracts in Harrison County, not of other tracts. But if that were true, the general grant would
accomplish nothing; the Mother Hubbard clause itself covers small pieces that may have been
overlooked or incorrectly described. The general grant’s conveyance of “all of the mineral, royalty,
and overriding royalty interest owned by Grantor in Harrison County, whether or not same is herein
above correctly described” could not be clearer. All means all.
29
Id. at 614.
30
See Jones v. Colle, 727 S.W .2d 262, 263 (Tex. 1987).
7
Mueller also argues that, as we stated in Texas Builders v. Keller, a reference to “an
unidentified portion of a larger, identifiable tract is not sufficient” to satisfy the Statute of Frauds.31
We agree with that proposition, of course, but it has no application here. A conveyance of the north32
or east33 part of a tract does not identify specific acreage; neither does a conveyance of a certain
number of acres out of a subdivision or survey in which the grantor owns multiple tracts.34 The rule
Mueller cites would apply if Cope and Mills had conveyed part of what they owned in Harrison
County, because the parts could not be identified from the deeds. But they conveyed all.
Mueller argues that each grantor’s express agreement “to execute any supplemental
instrument requested by Grantee for a more complete or accurate description of said land” shows that
the parties contemplated that any other tracts would be covered by separate instruments, which
would not be necessary if the general grant covered them. But the agreement is consistent with the
general grant. It simply provides that if supplemental instruments are required to carry out the
specific and general grants, the grantor will supply them.
Finally, Mueller argues that the general grant should not be enforced according to its terms
because Davis is a bad actor who has been sued many times for fraud, including by the Texas
Attorney General. But none of the other actions Mueller cites are remotely related to this suit. Texas
31
928 S.W .2d 479, 482 (Tex. 1996); see also Greer v. Greer, 191 S.W .2d 848, 850 (Tex. 1946); Smith v.
Sorelle, 87 S.W .2d 703, 706 (Tex. 1935).
32
Morrow v. Shotwell, 477 S.W .2d 538, 540 (Tex. 1972).
33
Matney v. Odom, 210 S.W .2d 980, 982 (Tex. 1948).
34
Greer v. Greer, 191 S.W .2d at 849 (“70 acres of land, more or less, out of the A.N. McKnight Survey, Patent
No. 736, Volume 3, Abstract No. 400”); Smith, 87 S.W .2d at 704 (“100 acres out of blocks eight and nine of the
subdivision of Jose Maria Pineda survey . . . Pat. 608, Vol. 2”); Pfeiffer v. Lindsay, 1 S.W . 264, 265 (Tex. 1886).
8
Rule of Evidence 404(a) provides that “[e]vidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person acted in accordance with the character
or trait.”35 And even if it were, Mueller’s evidence of Davis’s character is no reason to interpret the
general grants in the 1991 deeds other than according to their plain terms.
We conclude that the general grants in the 1991 deeds are valid and unambiguous, conveying
title of Cope’s and Mills’s Harrison County mineral interests to Davis. Because those conveyances
preceded the conveyances of the same interests to Mueller, Davis has superior title.
III
One small matter remains. As we have noted, Mueller asserted other claims besides the title
claim. The trial court’s summary judgment adjudicated them all in Davis’s favor. Although Mueller
appealed only on his title claim, not his other claims, the court of appeals addressed them.36 It
affirmed summary judgment on Mueller’s claims for common-law fraud and failure of
consideration,37 and Mueller does not complain of those rulings. But the court of appeals remanded
Mueller’s claims for statutory fraud, conversion, and adverse possession, and Davis complains that
35
T EX . R. E VID . 404(a).
36
Mueller requested that the court of appeals reverse and render “on the basis that the Mother Hubbard Clause
. . . is only meant to convey small strips of adjoining property. . . .” or, “[i]n the alternative . . . on the basis that the
conveyances do not comply with the Statute of Frauds”, or again in the alternative, “on the basis that there are issues of
fact to be decided by the trier of fact.” These questions of fact, as M ueller describes them in his brief, do not pertain to
his claims of conversion, statutory fraud, or adverse possession. Mueller instead describes these questions as “remain[ing]
as to what property was conveyed”, “concerning the possession and control of the mineral interests”, and “remain[ing]
due to the cumulative nature of [Davis’s] prior bad acts.”
37
485 S.W .3d 622, 632–633 (Tex. App.— Texarkana 2016).
9
in so doing the court improperly granted relief Mueller did not request.38 In response, Mueller
contends that Davis did not raise his complaint in his petition for review and cannot urge it now.39
But while Davis did not assert in his petition for review that the court of appeals should not
have addressed claims on which Mueller did not appeal, he did assert that those claims have no
merit. Davis’s petition lists among the issues presented: because Davis’s title is superior, “Mueller’s
allegation of Fraudulent Claim Against Real Property . . . necessarily fails, as does his claim that
Davis converted the royalties and payments made on those interests”. We agree. Davis cannot have
fraudulently claimed, or converted royalties from, property he owns. The petition also states that
“Mueller’s claim for adverse possession is barred by the statute of limitations.” In his brief, Davis
notes that Mueller does not contend that he adversely possessed the interests conveyed by the 1991
deeds, but that Cope and Mills did. Cope and Mills are not parties to this action, and Mueller has no
standing to prosecute any claim for adverse possession they might have. Without considering
whether any such claims would be barred by limitations, we hold that Mueller cannot prosecute
them.
Thus, the court of appeals erred in remanding Mueller’s other claims for statutory fraud,
conversion, and adverse possession.
38
See Wells Fargo Bank, N.A. v. Murphy, 458 S.W .3d 912, 916 (Tex. 2015) (“A court of appeals commits
reversible error when it sua sponte raises grounds to reverse a summary judgment that were not briefed or argued in the
appeal.”); Walling v. Metcalfe, 863 S.W .2d 56, 58 (Tex. 1993) (“W e have held repeatedly that the courts of appeals may
not reverse the judgment of a trial court for a reason not raised in a point of error.”).
39
See T EX . R. A PP . P. 55.2(f) (“[T]he brief may not raise additional issues or points or change the substance
of the issues or points presented in the petition.”).
10
* * * * *
For these reasons, the court of appeals’ judgment is reversed and judgment is rendered that
Mueller take nothing.
Nathan L. Hecht
Chief Justice
Opinion delivered: May 26, 2017
11