Untitled Texas Attorney General Opinion ( 1961 )

E AVT~JRNEX GENE OF TEXAS September 28, 1961 Honorable W. G. Walley, Jr. Opinion No. WW-1155 Acting Criminal District Attorney Re: Whether a partition deed Beaumont, Texas should be recorded by the county clerk, when such deed has attached thereto a plat which has not been approved according to the requirements set forth in Article 6626, Vernon's ATTENTION: James M. Farris Civil Statutes. Dear Sir: Your recent request for opinion from this office may be stated as follows: "May a partition deed be recorded by a County Clerk when such deed has attached thereto a map or plat which has not been approved according to requirements set forth in Article 6626 of Vernon's Civil Statutes?” From your request and information furnished, it appears that a voluntary partition deed between co-tenants of land not within five miles of an incorporated city has been presented to the County Clerk with an accompanying map or plat. Article 6626 of Vernon's Civil Statutes provides as follows: "The following instruments of writing which shall have been acknowledged or proved according to law, are authorized to be re- corded, viz.: all deeds, mortgages, convey- ances, deeds of trust, bonds for title, covenants, defeasances or other instruments of writing concerning any lands or tenements, or goods and chattels, or moveable property of any description; provided, however, that in cases of subdivision or re-subdivision of real property no map or plat of any such . Honorable W. G. Walley, Jr., page 2 (W-1155) subdivision or re-subdivision shall be filed or recorded unless and until the same has been authorized by the Commissioners Court of the county in which the real estate is situated by order duly entered in the minutes of said court, except in cases of the partition or other subdivision through a court of record; provided that where the real estate is sit- uated within the corporate limits or within five miles of the corporate limits of any incorporated city or town, the governing body there of or the city planning commis- sion, as the case may be, as provided in Article 97&a, Vernon's Texas Civil Statutes, shall perform the duties hereinabove imposed upon the Commissioners Court." (Emphasis added) The recited facts take this partition deed out of the requirements of authorization by the Commissioner's Court. We quote from Attorney General's Opinion No. O-5150 (1943) written by then Assistant Attorney General Ocie Speer as fol- lows: "When these statutes ,&ticles 6626 and 97&a, V.C.Sg are considered together as they should be--related as they are--it is our con- clusion that partition deeds executed by co- tenants for the purpose of effecting a parti- tion of land does not come within their mean- ing. Whether the partition deed is or is not executed by including in the instrument a map, plat or delineation whatsoever of the land thus partitioned, will not change our holding. "The obvious purpose of the statutes was to regulate the common practice of laying out subdivisions or additions of suburban lands so as to bring about a conflict with the planning, platting and delineation of the streets, alleys, parks, lots and the like of the city to which such subdivision or addition is adjacent. Such a matter involves a public interest, whereas a mere partitioning of lands between or among co- tenants involves solely a matter of personal right and not of public concern." You are advised that the partition deed and map or plat may be filed for record. SUMMARY A voluntary partition deed between co-tenants with accompanying map or plat may be recorded by the County Clerk, since such partition deeds need not comply with the requirements as set forth in Article 6626, Vernon's Civil Statutes. Yours very truly, WILL WILSON Attorney General of Texas By Fred D. Ward Assistant FDW:lgh/ds APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Richard Wells Virgil Pulliam J. C. Davis I. Raymond Williams, Jr. REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.