Van Martin Gaskins, Trustee of the Van Martin Gaskins Family Trust Kelly Joe Gaskins, Trustee of the Kelly Joe Gaskins Family Trust Kayla Gaskins McDonnell, Trustee of the Kayla Gaskins McDonnell Family Trust v. Navigator Oil & Minerals, Inc. Warrior Exploration, LLC Patrick Banaise Blake Mitchell C. Meyers Michael J. Daniel Spencer Evans Blake Riley Blake Leader And Patricia Dalby Matthies ( 2023 )


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  • Opinion filed June 8, 2023
    In The
    Eleventh Court of Appeals
    __________
    No. 11-21-00201-CV
    __________
    VAN MARTIN GASKINS, TRUSTEE OF THE VAN MARTIN
    GASKINS FAMILY TRUST; KELLY JOE GASKINS, TRUSTEE
    OF THE KELLY JOE GASKINS FAMILY TRUST; AND KAYLA
    GASKINS MCDONNELL, TRUSTEE OF THE KAYLA GASKINS
    MCDONNELL FAMILY TRUST, Appellants
    V.
    NAVIGATOR OIL & MINERALS, INC.; WARRIOR
    EXPLORATION, LLC; PATRICK BANAISE BLAKE;
    MITCHELL C. MEYERS; MICHAEL J. DANIEL; SPENCER
    EVANS BLAKE; RILEY BLAKE LEADER; AND PATRICIA
    DALBY MATTHIES, Appellees
    On Appeal from the 118th District Court
    Howard County, Texas
    Trial Court Cause No. 53849
    OPINION
    In this appeal we must (1) construe the provisions of a correction deed that
    was executed in 1960 and (2) decide what royalty interest amounts were reserved
    for the grantor and what amounts were conveyed to the grantees under the deed.
    At one time, J.S. Clay owned the entire mineral interest in the subject
    property. In the 1950s, Clay and his family conveyed a 20/160 royalty interest in
    the property to third parties who are not involved in the underlying suit. The core of
    the parties’ dispute on appeal focuses on the extent to which the remaining 140/160
    royalty interest in the property was divided in a 1960 conveyance between Clay and
    Joe Mac and LaVerne Gaskins.          Appellees, the Navigator parties, are Clay’s
    successors-in-interest; Appellants, the Gaskins trustees, are successors-in-interest to
    Joe Mac and LaVerne.
    It is undisputed that the original general warranty deed equally divided the
    remaining 140/160 royalty interest to Clay (70/160) and Joe Mac and LaVerne
    (70/160). But a correction deed was executed soon thereafter that changed certain
    language and interests that were conveyed in the original deed. The parties to this
    appeal contest the validity of the correction deed and its effect on the division of the
    remaining 140/160 royalty interest—whether it changed the division to 90/160 for
    Clay and 50/160 for Joe Mac and LaVerne, as Appellees urge, or retained the
    original equal division of 70/160 to each, as Appellants contend.
    Appellees filed suit against Appellants and asserted claims for declaratory
    relief and to quiet title. Appellants answered and filed a counterclaim in which they
    asserted claims for declaratory relief, to quiet title, trespass to try title, and,
    alternatively, breach of warranty of title. Appellees also asserted various affirmative
    defenses to Appellants’ counterclaims. After extensive discovery, Appellants filed
    a motion for partial summary judgment, and Appellees filed a traditional and no-
    evidence cross-motion for summary judgment. The trial court granted Appellees’
    2
    motion, denied Appellants’ motion, and overruled all evidentiary objections raised
    by the parties.
    In six sub-issues, Appellants contend that the trial court erred when it granted
    Appellees’ motions for summary judgment and denied Appellants’ motion because
    (1) both the original deed and the correction deed consistently convey a 70/160
    royalty interest to the Gaskins; (2) the correction deed is void and invalid;
    (3) Appellees are estopped from claiming a royalty interest greater than 70/160;
    (4) Appellees failed to defeat Appellants’ counterclaims as a matter of law;
    (5) Appellees failed to establish any affirmative defenses as a matter of law; and
    (6) for all of these reasons, the trial court erred when it entered declarations and
    quieted title in favor of Appellees and refused to enter declarations and quiet title in
    favor of Appellants.
    We hold that the Correction Deed (1) is valid and enforceable,
    (2) unambiguously conveyed a 70/160 royalty interest to Joe Mac and LaVerne, and
    (3) excepted and reserved a total royalty interest of 90/160 unto Clay and his heirs
    and successors, which includes the previously conveyed 20/160 royalty interest that
    is owned by unrelated third parties. We further hold that Appellants’ trespass-to-
    try-title counterclaim fails as a matter of law. Accordingly, we affirm in part, and
    we reverse and render in part.
    I. Factual Background
    Clay owned certain property 1 and mineral rights in Howard County which
    included a 140/160 royalty interest in the property. On March 23, 1960, by General
    Warranty Deed and consistent with the Contract for Sale, Clay conveyed to Joe Mac
    and LaVerne the surface and mineral estate, a one-half interest in the executory
    rights and bonuses, and a “70/160ths interest in royalty” in the property. Clay, as
    1
    NE/4 Section 21, Block 34, T-2-N, T & P Ry. Co. Survey, Howard County, Texas.
    3
    grantor, reserved and retained for himself, and his heirs and successors, one-half of
    his original 140/160 royalty interest—the remaining 70/160 royalty interest. Like
    the Contract for Sale, the March 23, 1960 original deed also acknowledged, and the
    parties concede on appeal, that Clay had previously conveyed 20/160 of the royalty
    interests in the subject property to unrelated third parties.
    Twenty-three days later, Clay and Joe Mac signed and recorded a Correction
    Deed. The purpose of the Correction Deed was to clarify the scope of the interests
    conveyed in the original deed.         According to Appellees, the original deed
    (1) erroneously conveyed only one-half of the executive rights to Joe Mac and
    LaVerne, (2) erroneously failed to except and reserve for Clay, and his heirs and
    successors, a 90/160 royalty interest, and (3) failed to separately except and reserve
    the 20/160 royalty interest that had been previously conveyed to certain unrelated
    third parties. Hence, in addition to clarifying the scope of the conveyed interests,
    the Correction Deed was executed to correct these errors.
    The Correction Deed conveyed to Joe Mac and LaVerne “all” of Clay’s
    interests in the property; however, it also included the following reservation:
    EXCEPT that the Grantor [Clay] reserves unto himself, his heirs,
    executors and assigns, an undivided 90/160ths of the oil royalty, gas
    royalty, and royalty in other minerals, together with the right to receive
    one-half (1/2) of all bonuses, and delay rentals paid to the Grantee in
    connection with the leasing of such land for oil, gas and other minerals.
    It is the intention hereof to grant unto the grantee the right to execute
    all oil, gas and other mineral leases on such land without the joinder of
    the grantor, his heirs or assigns, but one-half (1/2) of the proceeds of
    such leasing is to be paid over to the grantor herein. Third Parties, who
    are not parties to this deed own 20/160ths of the oil royalty, gas royalty
    and royalty in other minerals, and this ownership by Third Parties have
    been excepted in this conveyance in favor of such Third Parties, but the
    remaining portion of the exceptions herein are to remain the property
    of the Grantor, his heirs, executors and assigns.
    4
    LaVerne did not sign the Correction Deed. However, the Correction Deed recites
    that Joe Mac, by his signature, accepted the changes “on behalf of the Grantees”
    (which included LaVerne) and acknowledged that he and LaVerne each agreed to
    the Correction Deed’s terms (emphasis added).
    Two years later, Clay died testate. Since Clay’s passing, the royalty interests
    owned by Clay, Joe Mac, and LaVerne were transferred to their respective heirs
    through a series of bequests and devises.
    Appellees traced their chain of title to Clay’s estate. In his will, Clay
    bequeathed all his property to his sister, Mattie Coker. During Clay’s probate
    proceedings, an inventory of Clay’s estate was filed which listed among his assets a
    “70/160th of the royalty” in the subject property. When Mattie died, she bequeathed
    “all” her property to her children, Margaret Dalby and James Coker—each inherited
    one-half of Clay’s royalty interest, whatever it was at the time. James died and one-
    half of his property was devised equally to his daughter, Patricia Coker, and to his
    wife, Camelia Coker. Thus, Patricia and Camelia each received one-quarter of
    Clay’s royalty interest, whatever it was at the time. When Margaret died, her real
    estate was devised to Pat Matthies, thus leaving Matthies one-half of Clay’s royalty
    interest.
    Appellees acquired Patricia and Camelia’s royalty interests. As part of their
    due diligence before purchasing Patricia and Camelia’s royalty interests,
    representatives for Navigator Oil and Minerals, Inc. reviewed public documents and
    probate records concerning Clay’s estate and the Cokers’ chain of title. In his report,
    Navigator’s agent preliminarily concluded that Clay held a 90/160 royalty interest
    in the property, but the report also recognized that further investigation into Clay’s
    probate proceedings was necessary to accurately determine the disposition of his
    estate.     Navigator’s agent filed the records from Clay’s probate proceedings,
    including the inventory that listed Clay’s royalty interest in the property as being
    5
    70/160, in Howard County as part of Navigator’s chain of title. One day before
    purchasing the Cokers’ royalty interests, Navigator sent them a letter confirming
    their agreement and stating Navigator’s intention to assist in resolving certain unpaid
    royalties for the “Gaskins 21 #3 well.”
    When Navigator purchased the Cokers’ royalty interests, which combined
    were equal to one-half of Clay’s royalty interests, Navigator attached an exhibit to
    the agreement that indicated the Cokers purportedly owned a 45/160 royalty interest
    in the property. The other half of Clay’s royalty interest remained with Matthies.
    Appellees contend that if the Cokers’ combined one-half interest and Matthies’ one-
    half interest are each equal to a 45/160 royalty interest, the total of their combined
    interests—the sum of Clay’s interest that remained after the 1960 conveyance as
    recited in and corrected by the Correction Deed—would be 90/160. Therefore,
    because it is undisputed that 20/160 of the royalty interests are held by unrelated
    third parties, a mathematical consequence of the Cokers’ and Matthies’ combined
    interests, if Appellees’ description is accurate, is that the Gaskins parties’ royalty
    interest is only 50/160. In other words, the interests conveyed by Clay pursuant to
    the Correction Deed would have reduced the interest conveyed to Joe Mac and
    LaVerne in the original deed by 20/160 (the disputed interest). However, and
    according to Appellants, the Cokers’ and Matthies’ interests could only be 35/160
    each, which would equal a combined interest of 70/160.
    A week after acquiring the Cokers’ interests, Navigator conveyed its royalty
    interests to itself and several other parties, who, for purposes of this appeal, are
    collectively the Navigator parties (Appellees in this suit).2 This conveyance also
    purported to convey a 45/160 royalty interest.
    2
    Matthies is also a plaintiff-appellee in this case and aligned with the Navigator parties.
    6
    The parties’ battle began when Appellees claimed that they had succeeded to
    a 90/160 royalty interest in the property and that Appellants only succeeded to a
    50/160 interest, rather than the equal 70/160 interests that Appellants believed was
    conveyed.       Approximately three years after Navigator purchased the Cokers’
    interests, Appellees filed suit against the Gaskins’ successors-in-interest, Appellants,
    seeking declaratory relief and to quiet title.               Appellants answered and
    counterclaimed for trespass to try title, declaratory relief, to quiet title, and for breach
    of warranty of title. In response to the counterclaims, Appellees also asserted the
    affirmative defenses of limitations and estoppel by deed.
    In their pleadings, Appellees alleged that the 90/160 royalty interest exception
    in the Correction Deed did not include the later mentioned 20/160 royalty interest
    owned by the unrelated third parties but, rather, that these two excepted fractional
    interests in the Correction Deed constitute two separate and independent exceptions
    from the general grant of “all” of Clay’s interests. In other words, Appellees argue
    that the Correction Deed reduced the total royalty interest conveyed to Joe Mac and
    LaVerne to a 50/160 interest—which is all that remained of Clay’s 140/160 interest
    after his 90/160 excepted interest and the 20/160 excepted interest that was
    separately owned by third parties are deducted.
    Conversely, Appellants alleged that the only terms that the Correction Deed
    changed was the designation of executive rights and a notation of lien ownership,
    and that the 90/160 royalty interest excepted in favor of Clay includes the 20/160
    interest owned by the unrelated third parties. Thus, the division of the royalty
    interests as recited in the original deed did not change when the Correction Deed
    was executed. As such, and according to the terms of the Correction Deed, both
    Clay and the Gaskins (Joe Mac and LaVerne) held equal 70/160 royalty interests in
    the property.
    7
    Appellants filed a motion for partial summary judgment on their claims for
    declaratory relief, to quiet title, and for trespass to try title. Appellees filed a
    traditional motion for summary judgment on their claims for declaratory relief and
    to quiet title, their affirmative defenses of limitations and estoppel by deed, and to
    challenge the merits of Appellants’ counterclaims. Appellees also filed a no-
    evidence motion for summary judgment and challenged Appellants’ breach of
    warranty claim. Further, the parties filed objections to portions of the others’
    summary judgment evidence.
    After a hearing, the trial court entered a final judgment in which it denied all
    evidentiary objections asserted by the parties, granted Appellees’ motion for
    summary judgment, denied Appellants’ motion, and declared that Clay had
    conveyed only a 50/160 royalty interest in the property to Joe Mac and LaVerne.
    This appeal followed.
    II. Standard of Review – Summary Judgment
    We review a trial court’s grant of summary judgment de novo. Eagle Oil &
    Gas Co. v. TRO-X, L.P., 
    619 S.W.3d 699
    , 705 (Tex. 2021). When we review either
    a traditional or a no-evidence summary judgment, we consider the evidence in the
    light most favorable to the nonmovant, indulging every reasonable inference and
    resolving any doubts in favor of the nonmovant. Id.; Lightning Oil Co. v. Anadarko
    E&P Onshore, LLC, 
    520 S.W.3d 39
    , 45 (Tex. 2017). We credit evidence favorable
    to the nonmovant if reasonable jurors could do so, and we disregard contrary
    evidence unless reasonable jurors could not. Samson Expl., LLC v. T.S. Reed Props.,
    Inc., 
    521 S.W.3d 766
    , 774 (Tex. 2017); Boerjan v. Rodriguez, 
    436 S.W.3d 307
    , 311–
    12 (Tex. 2014).
    To prevail on a traditional motion for summary judgment, the movant must
    show that there is no genuine issue of material fact and that it is entitled to
    judgment as a matter of law. Eagle Oil & Gas, 619 S.W.3d at 705; see also TEX. R.
    8
    CIV. P. 166a(c). The evidence raises a genuine issue of material fact if reasonable
    and fair-minded jurors could differ in their conclusions in light of all the summary
    judgment evidence presented. Goodyear Tire & Rubber Co. v. Mayes, 
    236 S.W.3d 754
    , 755 (Tex. 2007). For a trial court to grant a defendant’s traditional motion, the
    defendant must conclusively negate at least one essential element of the cause of
    action being asserted against it or conclusively establish each element of a defense
    or affirmative defense that it raises. Sci. Spectrum, Inc. v. Martinez, 
    941 S.W.2d 910
    , 911 (Tex. 1997); City of Houston v. Clear Creek Basin Auth., 
    589 S.W.2d 671
    ,
    678 (Tex. 1979).
    “To defeat a no-evidence motion [for summary judgment,] the nonmovant
    must produce at least a scintilla of evidence raising a genuine issue of material fact
    as to the challenged elements.” KMS Retail Rowlett, LP v. City of Rowlett, 
    593 S.W.3d 175
    , 181 (Tex. 2019); see also TEX. R. CIV. P. 166a(i). Evidence is no more
    than a scintilla if it is “so weak as to do no more than create a mere surmise or
    suspicion of a fact.” KMS Retail Rowlett, LP, 593 S.W.3d at 181.
    When a trial court does not specify upon which grounds it grants summary
    judgment, we will affirm if any of the theories raised are meritorious. Provident
    Life & Accident Ins. Co. v. Knott, 
    128 S.W.3d 211
    , 216 (Tex. 2003). Ordinarily,
    when a party moves for summary judgment on both no-evidence and traditional
    grounds, we consider and address the no-evidence grounds first. Lightning Oil, 520
    S.W.3d at 45; Merriman v. XTO Energy, Inc., 
    407 S.W.3d 244
    , 248 (Tex. 2013).
    However, “if the movant in a traditional motion challenges a cause of action on an
    independent ground, we consider that ground first because it would be unnecessary
    to address whether a plaintiff met his burden as to the no-evidence challenge if the
    cause of action is barred as a matter of law.” Womack v. Oncor Elec. Delivery Co.,
    No. 11-17-00233-CV, 
    2019 WL 3023516
    , at *3 (Tex. App.—Eastland July 11, 2019,
    9
    pet. denied) (mem. op.); see also Lotito v. Knife River Corp.-S, 
    391 S.W.3d 226
    , 227
    n.2 (Tex. App.—Waco 2012, no pet.).
    When the parties file competing summary judgment motions and the trial
    court grants one motion and denies the other, as in this case, we review all of the
    summary judgment evidence, determine the issues presented, and render the
    judgment that the trial court should have rendered. Lightning Oil, 520 S.W.3d at 45
    (citing Merriman, 407 S.W.3d at 248).
    III. Applicable Law
    A. Principles of Deed Construction
    Neither party contends that the 1960 Correction Deed is ambiguous, and we
    agree that it is not. “A [deed] is not ambiguous merely because the parties disagree
    about its meaning and may be ambiguous even though the parties agree it is not.”
    URI, Inc. v. Kleberg Cty., 
    543 S.W.3d 755
    , 763 (Tex. 2018) (citing Samson Expl.,
    521 S.W.3d at 787). “Both the presence of ambiguity and interpretation of an
    unambiguous contract are questions of law we review de novo using well-settled
    contract-construction principles.” Id.; Endeavor Energy Res., LP v. Trudy Jane
    Anderson Testamentary Tr. ex rel. Anderson, 
    644 S.W.3d 212
    , 224 (Tex. App.—
    Eastland 2022, pet. denied).
    “If a [deed] is so worded that it can be given a definite or certain legal meaning
    when so considered and as applied to the matter in dispute, then it is not ambiguous.”
    URI, 543 S.W.3d at 765 (citing Columbia Gas Transmission Corp. v. New Ulm Gas,
    Ltd., 
    940 S.W.2d 587
    , 589 (Tex. 1996)). “But if [deed] language is susceptible to
    more than one reasonable interpretation when so viewed, an ambiguity exists.” 
    Id.
    When construing an unambiguous deed, our objective is to ascertain the true
    intentions of the parties as expressed within the four corners of the deed. Nettye
    Engler Energy, LP v. BlueStone Nat. Res. II, LLC, 
    639 S.W.3d 682
    , 689 (Tex. 2022)
    (citing Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 
    341 S.W.3d 323
    ,
    10
    333 (Tex. 2011)); Wenske v. Ealy, 
    521 S.W.3d 791
    , 794 (Tex. 2017). Because this
    entails a holistic approach, we examine the entire instrument and seek to harmonize
    and give effect to all its provisions. See Piranha Partners v. Neuhoff, 
    596 S.W.3d 740
    , 746–49 (Tex. 2020) (citing Luckel v. White, 
    819 S.W.2d 459
    , 462 (Tex. 1991)).
    The objective manifestations of the parties’ intent—the words they chose to
    use in the instrument—control, not what either party may have subjectively
    intended. URI, 543 S.W.3d at 763–64; see Hysaw v. Dawkins, 
    483 S.W.3d 1
    , 8 (Tex.
    2016). In other words, what controls is not the intent that the parties meant but failed
    to express; rather, it is the intent that the parties did, in fact, express. Luckel, 819
    S.W.2d at 462; Brooke-Willbanks v. Flatland Mineral Fund, 
    660 S.W.3d 559
    , 564
    (Tex. App.—Eastland 2023, no pet. h.).          Grammar can be crucial to proper
    construction. Tx. Health Presbyterian Hosp. of Denton v. D.A., 
    569 S.W.3d 126
    ,
    132 (Tex. 2018) (citing Antonin Scalia & Bryan A. Garner, Reading Law: The
    Interpretation of Legal Texts 141 (2012)). And “[g]rammatical usage is not separate
    from textual meaning.” Horseshoe Bay Resort, Ltd. v. CRVI CDP Portfolio, LLC,
    
    415 S.W.3d 370
    , 382 (Tex. App.—Eastland 2013, no pet.) (citing Gen. Fin. Servs.,
    Inc. v. Practice Place, Inc., 
    897 S.W.2d 516
    , 522 (Tex. App.—Fort Worth 1995, no
    writ)).
    In discerning the parties’ intent, “words and phrases must be construed
    together and in context, not in isolation.”       Hysaw, 483 S.W.3d at 13 (citing
    Plainsman Trading Co. v. Crews, 
    898 S.W.2d 786
    , 789 (Tex. 1995)). Accordingly,
    we afford the language used in its plain, grammatical, and ordinary meaning unless
    doing so would clearly defeat the parties’ intentions or the instrument clearly shows
    that the parties used the terms in a different or technical sense. Nettye, 639 S.W.3d
    at 690 (citing Barrow-Shaver Res. Co. v. Carrizo Oil & Gas Co., 
    590 S.W.3d 471
    ,
    479 (Tex. 2019)); URI, 543 S.W.3d at 764 (citing Heritage Res., Inc. v. NationsBank,
    
    939 S.W.2d 118
    , 121 (Tex. 1996)); Hysaw, 483 S.W.3d at 13 (“Words and phrases
    11
    generally bear their ordinary meaning unless the context supports a technical
    meaning or a different understanding.”). Similarly, apparent inconsistencies or
    contradictions in the language that is used must be harmonized, to the extent
    possible, by construing the document as a whole. Hysaw, 483 S.W.3d at 13 (citing
    Luckel, 819 S.W.2d at 462).
    Because words are imperfect implements of communication, their meaning
    often turns upon use, adaptation, and context as they are employed to fit various and
    varying situations. URI, 543 S.W.3d at 764. Therefore, we construe words in the
    context in which they are used.        Id.    Because context may encompass the
    circumstances present at the time the deed was executed, our task is to determine,
    objectively, what an ordinary person using those words under the circumstances in
    which they are expressed would understand them to mean. Id. “But there are limits.
    We cannot employ surrounding facts and circumstances to make [deed] language
    say something it unambiguously does not . . . .” Nettye, 639 S.W.3d at 690 (citing
    URI, 543 S.W.3d at 763). “Rather, the ‘facts and circumstances can only provide
    context that elucidates the meaning of the words employed, and nothing else,’ and
    they can only give [deed] language a meaning to which it is ‘reasonably
    susceptible.’” Id. (quoting URI, 543 S.W.3d at 763). “In other words, such evidence
    may not be ‘used to add, alter, or change the [deed’s] agreed-to terms.’” Id. (quoting
    Barrow-Shaver, 590 S.W.3d at 485); URI, 543 S.W.3d at 758.
    B. The Correction Instrument Statutes
    Since their enactment in 2011, the Correction Instrument statutes have
    codified the procedures required for the execution of valid correction instruments.
    TEX. PROP. CODE ANN. §§ 5.027–.031 (West 2021). The statutes also provide certain
    protections and presumptions for correction instruments that comply with these
    12
    procedures and permit the use of correction instruments to make both material and
    nonmaterial corrections under certain circumstances. Id.
    To make material corrections to the original deed, the statutes require that a
    correction deed, to be valid and enforceable, must be (1) executed by the original
    parties to the recorded instrument of conveyance or, if applicable, by a party’s heirs,
    successors, or assigns, and (2) recorded in each county in which the original
    instrument of conveyance that is being corrected is recorded. Id. § 5.029(b). A
    correction deed that complies with Section 5.029 receives certain protections and
    presumptions and is (1) effective as of the effective date of the original instrument;
    (2) prima facie evidence of the facts stated in the correction instrument; (3) presumed
    to be true; (4) subject to rebuttal; and (5) notice to a subsequent buyer of the facts
    stated in the correction instrument. Id. § 5.030.
    The statutes also contain a retroactive component: correction deeds that were
    recorded before the statutes’ effective date of September 1, 2011, such as the 1960
    Correction Deed in this case, need not strictly comply with the statutory
    requirements—rather, only substantial compliance is required. 3 Id. § 5.031. Older
    correction deeds receive the same protections and presumptions that are set out in
    Section 5.030, “unless a court of competent jurisdiction renders a final judgment
    determining that the correction instrument does not substantially comply with
    Section . . . 5.029.” Id.
    3
    Although the Correction Instrument statutes do not define what constitutes substantial compliance,
    generally “[the] phrase means that one has performed the ‘essential requirements’ of a statute, and it excuses
    deviations which do not seriously hinder the legislature’s purpose in imposing such requirements.”
    Endeavor Energy, 644 S.W.3d at 220 (quoting AIC Mgmt. Co. v. AT&T Mobility, LLC, No. 01-16-00896-
    CV, 
    2018 WL 1189865
    , at *9 (Tex. App.—Houston [1st Dist.] Mar. 8, 2018, pet. denied) (mem. op.)); see
    U. Lawrence Boze & Assocs., P.C. v. Harris Cnty. Appraisal Dist., 
    368 S.W.3d 17
    , 27 (Tex. App.—Houston
    [1st Dist.] 2011, no pet.) (interpreting Section 5.029); see also Edwards Aquifer Auth. v. Chem. Lime, Ltd.,
    
    291 S.W.3d 392
    , 403 (Tex. 2009) (“[S]ubstantial compliance with a statute means compliance with its
    essential requirements.” (alteration in original)).
    13
    IV. Analysis
    A. The 1960 Correction Deed is Valid and Enforceable
    We first address Appellants’ challenge to the validity of the 1960 Correction
    Deed because our holding on this point will determine whether we must address and
    dispose of other issues that have been raised in this appeal.
    Appellants contend that the Correction Deed is void and invalid because it
    (1) does not correct any error or ambiguity that is subject to correction under the
    Correction Instrument statutes, and (2) was not signed by all original parties to the
    original deed. Consequently, Appellants reason that the Correction Deed is not
    entitled to any of the statutory presumptions or protections provided by the
    Correction Instrument statutes. We disagree on both points.
    1. No Facial “Error or Ambiguity” is Required
    Appellants first argue that the original deed that recited the conveyance
    between Clay and Joe Mac and LaVerne did not contain any error regarding the
    conveyed royalty interest, but instead accurately expressed the parties’ intent to
    “convey an undivided 70/160 interest in royalty” to Joe Mac and LaVerne.
    In support of this argument, Appellants assert that the Correction Instrument
    statutes are not permissive; they simply provide that a correction deed “may” correct
    an “ambiguity or error” in an original recorded instrument of conveyance. PROP.
    § 5.027(a). According to Appellants, the Contract for Sale confirms that Clay
    retained 70/160 of the royalty interest in the property and Joe Mac and LaVerne
    received by conveyance an equal 70/160 interest. Appellants reason that we should
    consider the Contract for Sale because it provides objective and surrounding context
    to the execution of the original deed that confirms there was no error in the original
    deed; therefore, no valid basis existed for the parties to execute the Correction Deed.
    Appellants further contend that because the intent to convey a 70/160 royalty interest
    14
    is uniformly manifested from both the text of the original deed and the context
    surrounding its execution, no error or ambiguity subject to correction exists;
    therefore, the 1960 Correction Deed is void and invalid. Appellants’ contentions are
    misplaced.
    There is no requirement that an error or ambiguity must exist in the original
    deed for a correction deed to be valid. See id. §§ 5.027–.031; Heredia v. Zimprich,
    
    559 S.W.3d 223
    , 230 (Tex. App.—El Paso 2018, no pet.) (“The statutes pertaining
    to correction deeds do not limit the use of correction deeds to correct facial
    imperfections in the original warranty deed or in the chain of title, nor is there a
    requirement that there be a mutual mistake which caused a defect or imperfection in
    the original warranty deed.”). To the contrary, the Correction Instrument statutes
    contain broad authorizations to correct original instruments, with few limitations.
    See Endeavor Energy, 644 S.W.3d at 223 (“[T]his correction-by-agreement remedy
    is a nonjudicial process that is designed to promote efficiency in non-adversarial
    circumstances.” (citing Broadway Nat’l Bank v. Yates Energy Corp., 
    631 S.W.3d 16
    , 29 (Tex. 2021))).
    Parties to the original instrument may correct “an ambiguity or error,”
    including the “extent of the interest conveyed.” PROP. §§ 5.027(a), 5.030(b).
    However, the correction instrument conveys nothing; it simply “replaces and is a
    substitute for the original instrument” and clarifies the scope of the conveyed
    interests. Id. § 5.030(b); Broadway Nat’l Bank, 631 S.W.3d at 29; Endeavor Energy,
    644 S.W.3d at 222. The statutes do not define “ambiguity or error.” See PROP.
    §§ 5.027–.031. Rather, the parties’ compliance with the statutory requirements
    regarding the execution and recording of the correction instrument determines the
    instrument’s validity and effectiveness. See id. § 5.027(a). Thus, Appellants’ focus
    here is misplaced—the validity of the 1960 Correction Deed turns on the original
    parties’ compliance with these statutory requirements which are necessary to
    15
    validate a correction deed, not on the apparent intent of the parties when they
    executed the original instrument.
    For this reason, we decline to examine the original deed or the Contract for
    Sale as part of our construction and analysis of the Correction Deed. Although we
    may consider the circumstances surrounding the Correction Deed’s execution as an
    aid in the construction of the deed’s language, we may not use or consider extrinsic
    evidence to search for the parties’ intent beyond the meaning that the deed’s
    language reasonably yields when construed in context. Barrow-Shaver, 590 S.W.3d
    at 483 (citing URI, 543 S.W.3d at 763). Indeed, looking to the substantive content
    of the original deed or the Contract for Sale would require that we discern the parties’
    intent beyond the Correction Deed’s language. Id. (declining to consider the parties’
    substantive negotiations as part of the surrounding facts and circumstances that give
    context to the contract at issue).
    2. Original Parties are Required to “Execute,” not Sign, the
    Correction Deed
    Appellants argue that the Correction Deed is void and invalid because
    LaVerne, as an original grantee, did not sign it. However, the absence of LaVerne’s
    signature is of no consequence. As explained below, we hold that because Joe Mac
    signed the Correction Deed on behalf of the grantees, which included LaVerne, the
    deed substantially complied with the applicable statutory requirements for a pre-
    2011 correction deed that makes material corrections to the original instrument;
    therefore, the Correction Deed is valid and enforceable.
    Importantly, it has been held that a correction deed that does not comply or
    even substantially comply with Section 5.029 is not necessarily void. Lockhart as
    Tr. of Lockhart Family Bypass Tr. v. Chisos Minerals, LLC, 
    621 S.W.3d 89
    , 110
    (Tex. App.—El Paso 2021, pet. denied) (holding that a correction deed was not void,
    but merely voidable, because although Lockhart was not an original grantee, as
    16
    executor of the original grantees’ estate, she had the authority to convey the subject
    interests and did so by executing the correction deed). Substantial compliance with
    Section 5.029 is significant because it triggers certain effects under the statute—a
    correction deed is (1) effective as of the date the original instrument of conveyance
    is recorded; (2) prima facie evidence of the facts stated in the correction instrument;
    (3) presumed to be true; (4) subject to rebuttal, and (5) notice to a subsequent buyer
    of the facts stated in the correction instrument. PROP. §§ 5.030(a), .031. Thus, a
    correction deed that does not comply with Section 5.029 is not “effective ‘to the
    same extent as provided by Section 5.030[,]’ [but] nothing in the statute renders it
    without any effect.” Lockhart, 621 S.W.3d at 110 (quoting PROP. § 5.031) (alteration
    in original).
    Turning to the substance of Appellants’ contention, Section 5.029 governs
    correction instruments that make material corrections, including this one. PROP.
    § 5.029(b). The correction at issue here is material because it alters the manner in
    which the royalty interests are conveyed in the original instrument and, potentially,
    the extent of the interests conveyed. As we have said, under Section 5.029(b), a
    correction deed is effective if it was (1) executed by each party to the original
    recorded instrument of conveyance or, if applicable, a party’s heirs, successors, or
    assigns, and (2) recorded in each county in which the original instrument is recorded.
    Id.
    Correction instruments executed before 2011 need only “substantially
    comp[ly]” with the requirements of Section 5.029. See id. § 5.031. This applies, of
    course, to the 1960 Correction Deed in this case. The statutory text does not define
    what constitutes “substantial compliance” but, in construing Section 5.031, we have
    held that the term means that “one has performed the essential requirements of a
    statute, and it excuses deviations which do not seriously hinder the legislature’s
    17
    purpose in imposing such requirements.” Endeavor Energy, 644 S.W.3d at 220
    (internal citations omitted).
    Only the first requirement of Section 5.029(b)—that all parties to the original
    instrument must execute the correction deed—is at issue here. Appellants argue that
    because Joe Mac signed the Correction Deed on LaVerne’s behalf, it was not
    executed by each party to the original recorded instrument; therefore, the Correction
    Deed does not comply with Section 5.029(b). We disagree for two reasons.
    First, the statute only requires that each party to the original recorded
    instrument must execute, not sign, the Correction Deed. PROP. § 5.029(b)(1).
    Nothing in the text of the Correction Instrument statutes specifically requires that all
    the parties to the original instrument of conveyance must sign the Correction Deed.
    See PROP. §§ 5.027–.031. Second, even if the statute required that each party to the
    original instrument of conveyance must sign the Correction Deed, this deed need
    only “substantially comply” with Section 5.029 to be valid and effective, and here
    Joe Mac signed it on behalf of himself and LaVerne. See id. § 5.031.
    Section 5.029(b) states that all the parties to the original deed must “execute”
    the Correction Deed. Id. § 5.029(b)(1). Although only Clay and Joe Mac signed the
    Correction Deed, the deed recites that Joe Mac signed it “on behalf of the grantees,”
    which were identified as himself and LaVerne. The question we must decide is:
    does a correction deed substantially comply with Section 5.029(b) if it is signed by
    a grantee’s representative? The answer in this instance is yes. Here, because the
    person who signed the correction deed (Joe Mac) did so in a representative capacity
    and is also the other original grantee, and because the correction deed recites that,
    by his signature, Joe Mac executed the Correction Deed on behalf of all grantees,
    which included LaVerne, we hold that this Correction Deed substantially complies
    with Section 5.029. Furthermore, even if Joe Mac lacked the authority to sign on
    behalf of LaVerne, the Correction Deed would not be void, but would be only
    18
    voidable. See Ford v. Exxon Mobil Chem. Co., 
    235 S.W.3d 615
    , 618 (Tex. 2007)
    (recognizing that a deed obtained by fraud is voidable, rather than void, and remains
    effective until it is set aside); Nobles v. Marcus, 
    533 S.W.2d 923
    , 926–27 (Tex.
    1976) (holding that a deed signed without proper authority was voidable, not void,
    and constituted prima facie evidence of title).
    Generally, a party may execute a legal document without signing it. The term
    “execute” is not limited to only mean “sign.” See Mid-Continent Cas. Co. v. Global
    Enercom Mgmt., 
    323 S.W.3d 151
    , 157 (Tex. 2010) (rejecting the argument that
    “execute” means “to sign” and noting that “Texas law recognizes that a contract need
    not be signed to be ‘executed’ unless the parties explicitly require signatures as a
    condition of mutual assent”) (citing Simmons & Simmons Constr. Co., v. Rea, 
    286 S.W.2d 415
    , 418 (Tex. 1956)). Rather, the term “execute” is defined in several
    respects. 
    Id.
     Black’s Law Dictionary defines “execute” as “[t]o perform or complete
    (a contract or duty) . . . [t]o change (as a legal interest) from one form to another . . .
    [t]o make (a legal document) valid by signing; to bring (a legal document) into its
    final, legally enforceable form.” Execute, BLACK’S LAW DICTIONARY (11th ed.
    2019) (emphasis added).
    To be sure, even in the context of older, pre-2011 correction instruments, it
    appears that a correction deed must be signed by at least some of the parties, if not
    necessarily all of them, in order to substantially comply with Section 5.029. See
    Tanya L. McCabe Tr. v. Ranger Energy, LLC, 
    531 S.W.3d 783
    , 798–99 (Tex.
    App.—Houston [1st Dist.] 2016, pet. denied) (citing Edwards Aquifer Auth., 291
    S.W.3d at 403) (holding that correction instruments that were not executed by the
    original parties, or their successors, did not substantially comply with Section 5.029
    because execution by each original party is an essential statutory requirement); see
    also Lockhart, 621 S.W.3d at 110 (holding a 2014 correction deed that was not
    signed by the original grantees did not comply with Section 5.029 but was not void
    19
    because the executor and trustee who executed the correction deed had the authority
    and capacity to do so). This leaves open the possibility that a grantee or grantor to
    the original instrument of conveyance may sign the correction deed on behalf of
    another grantee or grantor in order to at least substantially comply with the statutory
    requirement that all parties execute the correction deed.
    We recently interpreted the Correction Instrument statutes in Endeavor
    Energy. In that case, an original grantee signed a pre-2011 correction deed on behalf
    of his deceased wife, the other original grantee. Endeavor Energy, 644 S.W.3d at
    223–25. We held that his signature rendered the correction deed substantially
    compliant with Section 5.029 because, as the executor, trustee, and beneficiary of
    her testamentary trust, the husband was his deceased wife’s sole successor within
    the meaning of the statute. Id.; see Broadway Nat’l Bank, 631 S.W.3d at 23–26.
    The correction deed in Endeavor Energy also recited that the husband and wife were
    parties to the original instrument of conveyance, that the wife had passed before the
    corrected deed was signed, and that the parties intended that the correction deed
    clarify and replace the original warranty deed. Endeavor Energy, 644 S.W.3d at
    224. The husband signed the correction deed on behalf of the “Grantees,” but the
    signature block did not indicate in which capacity or capacities he had signed—
    whether individually, as the executor, as trustee, or some combination of the three.
    Id. at 223–24.
    In Endeavor Energy, we further concluded that, as the sole successor to his
    deceased wife’s interests, and in light of the correction deed recitals, the husband,
    by his signature, effectively executed the correction deed in all applicable capacities,
    and alone possessed the authority to bind her interests. Id. at 224; see also W. 17th
    Res., LLC v. Pawelek, 
    482 S.W.3d 690
    , 694–95 (Tex. App.—San Antonio 2015, pet.
    denied) (determining that because the deed’s granting clause conveyed “all” of the
    subject property, the deed conveyed interests held by the signee individually and in
    20
    her capacity as trustee, even though she did not disclose her capacity “as trustee”
    when she signed the deed).
    The circumstance before us resembles Endeavor Energy in that, in both
    instances, an original grantee signed the correction deed on behalf of another original
    grantee. 4 Further, as in Endeavor Energy, the Correction Deed here need only
    substantially comply with the statute. However, unlike in Endeavor Energy, in this
    case Joe Mac was neither LaVerne’s executor nor her trustee, and he was certainly
    not her “successor” within the meaning of the statute. LaVerne was not deceased at
    the time the parties executed the correction deed. For whatever reason, she simply
    did not sign it.
    But the statute’s provisions do not specifically require that she sign it. As we
    have discussed, it is the execution of the correction deed by the original parties,
    rather than specifically signing it, that is an essential statutory requirement. Tanya
    L. McCabe Tr., 
    531 S.W.3d at
    798–99 (“[W]e have no basis upon which to conclude
    that the requirement of execution ‘by each party to the recorded original instrument’
    is not ‘essential’ to fulfilling the Legislature’s standard for permitting a material
    correction . . . .”) (quoting PROP. § 5.029(b)). And, in fact, the Correction Deed itself
    explicitly absolves LaVerne of any obligation to sign it. 5 See Mid-Continent Cas.
    Co., 323 S.W.3d at 157. Similar to the correction deed in Endeavor Energy, the
    1960 Correction Deed here recited that Joe Mac signed it “on behalf of the grantees.”
    4
    This appeal differs from Lockhart in at least one key respect: there, neither original grantee signed
    the correction deeds, whereas here, at least one of the original grantees did sign the instrument. Lockhart,
    621 S.W.3d at 95–96, 101–110 (discussing the executor-trustee’s capacity and authority to convey the
    interests through the noncompliant correction deeds).
    5
    Although the parties debate the applicability and constitutionality of the coverture statute that was
    in effect at the time, we need not engage in such an analysis in light of our holdings in this case. See TEX.
    REV. CIV. STAT. ANN. art. 4619 (1925), repealed by Act of June 2, 1969, 61st Leg., R.S., ch. 888, § 6, 1969
    TEX. GEN. LAWS 2707, 2733.
    21
    The Correction Deed’s recital that Joe Mac signed it “on behalf of the
    grantees” manifests that the parties to the instrument intended Joe Mac’s signature
    to be effective, representative, and bind both grantees. See Endeavor Energy, 644
    S.W.3d at 223–25. Joe Mac’s signature in this representative capacity was sufficient
    to at least substantially comply with the statutory requirement that the Correction
    Deed be executed by each party to the original instrument. Absent a prohibition in
    the text of the statute, we see no reason why one grantee’s signature “on behalf of
    the grantees” cannot at least substantially comply with the statute’s requirement that
    all parties to the original instrument must execute the correction deed. See PROP.
    §§ 5.029(b), .031; Endeavor Energy, 644 S.W.3d at 223–24. Accordingly, we hold
    that it may, and it does so in this instance.
    Because the 1960 Correction Deed substantially complies with Section 5.029,
    its content is prima facie evidence of the facts stated in the correction instrument and
    is presumed to be true. PROP. § 5.030(a)(2)–(3). This prima facie showing is subject
    to rebuttal, but Appellants have not rebutted the recited facts. See id. § 5.030(a)(4).
    Rather, Appellants present only a limited challenge to the validity of the Correction
    Deed and its legal effect based on Joe Mac’s signature.                           Appellants do not
    specifically challenge whether LaVerne authorized Joe Mac to sign on her behalf,
    nor do they challenge Joe Mac’s capacity to sign as LaVerne’s representative,
    beyond simply stating that the Correction Deed does not indicate such
    authorization.6 But the facts recited in the substantially compliant Correction Deed,
    including that Joe Mac signed on behalf of the grantees, which included LaVerne,
    are presumed to be true. Therefore, absent evidence that rebuts this recital, and we
    6
    Appellants do challenge Joe Mac’s representative capacity only to the extent that it is predicated
    on the coverture laws in effect at the time.
    22
    have found none, we presume that Joe Mac was authorized to execute the Correction
    Deed on LaVerne’s behalf.
    We conclude, as the trial court did, that the 1960 Correction Deed is valid and
    enforceable. Therefore, the trial court did not err when it granted summary judgment
    in favor of Appellees on this point. Accordingly, we overrule Appellants’ second
    sub-issue on appeal.
    We now turn to Appellants’ deed construction challenge to the royalty
    interests that were excepted from the deed’s general warranty grant.
    B. The Plain Language of the Correction Deed Indicates Only One Exception
    Appellants contend that the plain language of the Correction Deed results in a
    grant of a 70/160 royalty interest to Joe Mac and LaVerne because the 1960
    Correction Deed contained a single exception of a 90/160 royalty interest, which
    also encompassed the previously conveyed 20/160 royalty interest owned by
    unrelated third parties. We agree. The Correction Deed unambiguously expresses
    an objective intent to convey all of the subject property to Joe Mac and LaVerne,
    except (as relevant here) a 90/160 royalty interest which Clay reserved for himself
    and his heirs and successors, 20/160 of which was previously conveyed by Clay in
    the 1950s to third parties.
    Three particular components of the Correction Deed’s text compel this
    construction of the parties’ intent: (1) the granting clause, which conveys “all” the
    subject property “except” an undivided 90/160 interest reserved for Clay, and his
    heirs and successors, (2) the past tense form of the sentence that contains the
    purported second exception, and (3) the backwards-looking reference of the sentence
    that contains the purported second exception. Further, Appellants’ construction
    accommodates and harmonizes all of the deed’s language, including that upon which
    Appellees rely, whereas Appellees’ construction fails to do so.
    23
    In the 1960 Correction Deed, Clay granted and conveyed to Joe Mac and
    LaVerne “all” of the described property, except for the following reservation:
    EXCEPT that the Grantor reserves unto himself, his heirs, executors
    and assigns, an undivided 90/160ths of the oil royalty, gas royalty, and
    royalty in other minerals, together with the right to receive one-half
    (1/2) of all bonuses, and delay rentals paid to the Grantee in connection
    with the leasing of such land for oil, gas and other minerals.
    It is the intention hereof to grant unto the grantee the right to execute
    all oil, gas and other mineral leases on such land without the joinder of
    the grantor, his heirs or assigns, but one-half (1/2) of the proceeds of
    such leasing is to be paid over to the grantor herein. Third Parties, who
    are not parties to this deed own 20/160ths of the oil royalty, gas royalty
    and royalty in other minerals, and this ownership by Third Parties have
    been excepted in this conveyance in favor of such Third Parties, but the
    remaining portion of the exceptions herein are to remain the property
    of the Grantor, his heirs, executors and assigns.
    Appellees’ deed construction theory is that the Correction Deed references
    two royalty interest exceptions—90/160 and 20/160—and specifically refers to
    plural “exceptions.” Appellees contend that the first exception of a 90/160 interest
    is reserved by the grantor “unto himself” whereas the purported second exception of
    a 20/160 interest is excepted “in favor of such third parties.” The parties to the
    Correction Deed, Appellees reason, specifically distinguished between the two
    exceptions because the deed plainly refers to two exceptions, which consist of
    different interest amounts and are owned by different parties.          Nevertheless,
    Appellees’ two-exception reading fails because it ignores other deed language which
    cannot be harmonized with their construction, and Appellants’ construction
    harmonizes all of the deed language, including that upon which Appellees rely.
    1. Only Appellants’ Single-Exception Construction Harmonizes the
    Text
    In this case, Appellants’ construction accounts for and harmonizes all of the
    Correction Deed’s language, including that upon which Appellees rely; Appellees’
    24
    does not. Appellants’ construction harmonizes (1) the granting clause, which
    conveys “all” the subject property “except” for a 90/160 interest reserved for Clay,
    (2) the past tense form of the purported second exception, (3) the referential direction
    of the purported second exception, and (4) the deed’s use of the term “exceptions”
    in the plural tense.
    We begin with the granting clause, not because it commands higher priority
    than any other provision, but because it is chronologically the first component in the
    instrument that is relevant to the issue we analyze here. Piranha Partners, 596
    S.W.3d at 753 (“[O]ur ‘holistic and harmonizing approach’ to construing deeds . . .
    and similar documents requires us to consider all of the [deed’s] provisions and
    prohibits us from giving greater weight to the granting clause or to any other
    particular types of clauses.” (citing Luckel, 819 S.W.2d at 462–64)).
    The Correction Deed conveys “all” of the subject property to Joe Mac and
    LaVerne, “except . . . an undivided 90/160ths” interest, which Clay reserved for
    himself, and his heirs and assigns. Clay, as grantor, was not required to convey the
    estate in this “all-except” manner but he chose to do so. See id. at 748 (“A grantor
    may withhold for itself a part of its estate either by granting the entire estate but
    reserving the portion it desires to retain or by granting only the portion it desires to
    convey.”). The granting clause clearly identifies the property that is excepted from
    Clay’s grant, including a 90/160 royalty interest. See id.; Gonzalez v. Janssen, 
    553 S.W.3d 633
    , 638 (Tex. App.—San Antonio 2018, pet. denied) (“Exceptions, which
    generally are strictly construed against the grantor, must identify, with reasonable
    certainty, the property to be excepted from the larger conveyance.”). Therefore, and
    thus far, the text of the Correction Deed indicates that it conveys “all” the subject
    property but for a single exception—a 90/160 royalty interest that Clay reserved for
    himself, and his heirs and assigns.
    25
    Next, the paragraph that follows the granting clause explains the intent of the
    parties to the Correction Deed. 7 This paragraph includes the purported second
    exception upon which Appellees’ theory rests. The purported second exception,
    identified in the sentence below, is central to the disposition of the parties’
    arguments:
    Third parties, who are not parties to this deed own 20/160ths of the oil
    royalty, gas royalty and royalty in other minerals, and this ownership
    by third parties have been excepted in this conveyance in favor of such
    third parties, but the remaining portion of the exceptions herein are to
    remain the property of the grantor, his heirs, executors and assigns.
    Two characteristics of this sentence establish that the purported second exception is
    not an exception at all, but rather, that the parties only intended for there to be a
    single exception—a 90/160 of the royalty. The purpose of this sentence is simply to
    explain that 20/160 of Clay’s 90/160 interest are owned by unrelated third parties
    and that this previously conveyed interest was excepted from this conveyance in
    favor of those third parties.
    The first of these characteristics is that the sentence uses the past tense to state
    that the 20/160 interest already “have been excepted in this conveyance.” It is
    difficult to reconcile this past-tense verb form with Appellees’ contention that the
    reference to the 20/160 interest constitutes a second, independent exception from the
    overall conveyance. Compare this language to the present tense used in the first
    exception (which all parties agree is a valid exception): the grantor “reserves” a
    90/160 interest unto himself. The stark difference in verb tense between these two
    phrases poses a significant challenge to Appellees’ two-exception construction. And
    Appellees offer no harmonizing explanation for this obstacle.
    7
    As indicated by its opening line: “It is the intention hereof to grant unto the grantee . . . .”
    26
    Second, when the sentence states that the 20/160 interest “have been excepted
    in this conveyance,” it refers back to the first exception. Especially when combined
    with the past-tense form of “have been excepted,” this reference is backwards-
    looking and it refers to a previous, specific location in the Correction Deed’s text.
    The 90/160 interest exception is the only plausible place that satisfies that
    specification. Given these first two points, we cannot discern how the deed’s
    language could permit a two-exception construction.             Further, Appellees’
    construction fails to account for and harmonize these crucial aspects of the
    Correction Deed’s text. See Piranha Partners, 596 S.W.3d at 747 (reaffirming the
    rules requiring that courts “avoid any construction that renders any provisions
    meaningless” and to “consider and construe all of a contract’s provisions together
    ‘so that the effect or meaning of one part on any other part may be determined’”)
    (quoting Citizens Nat’l Bank v. Tx. & P. Ry. Co., 
    150 S.W.2d 1003
    , 1006 (Tex.
    1941)).
    The cornerstone of Appellees’ construction—the plural “exceptions”—lies in
    the final portion of the sentence: “but the remaining portion of the exceptions herein
    are to remain the property of the grantor.” But when read in the greater context of
    the whole instrument, the plural form of “exceptions” alone does not establish that
    this deed contains two exceptions from its grant of the subject property. Rather,
    Appellees’ two-exception theory fails to account for and harmonize the
    characteristics discussed above in the other sections of the sentence—the past tense
    and referential direction. Contrary to indicating the presence of two exceptions, in
    the context of the instrument as a whole, “exceptions” must refer to the 90/160 and
    the 20/160 interests as being part of the same, single exception.
    At first glance, one might be tempted to criticize this construction as absurd;
    after all, to say that “exceptions” means “portions of one exception” and not multiple
    “exceptions” may intuitively appear to be inconsistent with what one might consider
    27
    to be the plain meaning of the term. In the realm of legal construction, however,
    sound textual construction can sometimes defy logic or ordinary intuition, for
    various reasons. See, e.g., Van Dyke v. Navigator Grp., No. 21-0146, 
    2023 WL 2053175
    , at *3–8 (Tex. 2023) (holding that the meaning of “one-half of one-eighth”
    in the context of a 1924 mineral-conveyance instrument is one-half of the entire
    mineral estate, rather than one-sixteenth). But our task is not merely to affirm
    intuition. See Van Dyke, 
    2023 WL 2053175
    , at *4 (“[The challenge] is to overcome
    the cognitive dissonance that arises because, at least at first glance, ‘one-half of one-
    eighth’ seems unusually clear yet is alleged to mean something radically different
    from what we might expect.”). Rather, we must harmonize all the language within
    the four corners of the instrument by analyzing the ordinary meaning of the words
    in their context, with the aid of well-settled principles of contract and deed
    construction.    See Piranha Partners, 596 S.W.3d at 747 (discussing and
    distinguishing some of the “‘arbitrary’, ‘mechanical,’ ‘default’ rules we have ‘cast
    off’ and the ‘well-settled contract-construction principles’ on which we continue to
    rely when construing deeds and other contracts”) (quoting Wenske, 521 S.W.3d at
    795); Hysaw, 483 S.W.3d at 13.
    Here, only Appellants’ argument accounts for all of this language and leaves
    nothing to surplusage or lack of meaning. See Piranha Partners, 596 S.W.3d at 747
    (citing Coker v. Coker, 
    650 S.W.2d 391
    , 394 (Tex. 1983)). To accept Appellees’
    contention that the use of the plural term “exceptions” mandates a two-exception
    reading would require that we ignore (1) the granting clause, which conveys “all”
    the subject property “except” for a 90/160 interest reserved to Clay, (2) the past tense
    of “have been excepted,” and (3) the backwards-looking reference of “in this
    conveyance,” which, in tandem with (2) above, indicates that the 20/160 interest has
    already been excepted somewhere else in the instrument—within the exception of
    the 90/160 interest reserved for Clay.
    28
    Conversely, Appellees’ two-exception construction ignores the very language
    of the sentence which they argue constitutes the second exception. The Correction
    Deed text plainly states that ownership of the unrelated third-parties’ 20/160 interest
    “have been excepted in this conveyance.” Appellees offer no explanation or attempt
    to reconcile and harmonize the past-tense verb form and the backwards-looking
    reference of this phrase with their theory of the sentence’s meaning. Appellants, on
    the other hand, explain that this language anchors the 20/160 interest owned by the
    unrelated third parties to the single exception of the 90/160 interest as stated in the
    granting clause.
    Rather than addressing and attempting to harmonize the past-tense verb form,
    Appellees contend that, notwithstanding this, the two purported exceptions explicitly
    reserve royalty interests for two separate subjects—the grantor and “third parties.”
    The distinction shows, Appellees reason, that the original parties’ intended to make
    two separate and distinct exceptions and that Appellants’ one-exception construction
    fails to give effect to this language. We disagree.
    It is true that the two purported exceptions are in favor of different subjects.
    But this distinction can be reconciled with a one-exception construction. This is
    because, in this context, “exceptions” refers to two portions of the same, single
    exception. A sensible reason to distinguish the two portions in the first place may
    be that they are owned by different subjects.8 This does not undermine a single-
    8
    Appellees’ two-exception theory not only contradicts the plain language of the Correction Deed,
    it also suggests that the parties intended to reserve or except an interest in favor of a party or parties not
    privy to the deed, which is contrary to Texas law. A reservation or exception cannot be made in favor of a
    stranger to the deed. Jackson v. McKenney, 
    602 S.W.2d 124
    , 126 (Tex. App.—Eastland 1980, writ ref’d
    n.r.e.) (citing Joiner v. Sullivan, 
    260 S.W.2d 439
    , 440 (Tex. App.—Texarkana 1953, writ ref’d)); see U.S.
    Invention Corp. v. Betts, 
    495 S.W.3d 20
    , 25 (Tex. App.—Waco 2016, pet. denied) (“A reservation or
    exception in favor of a stranger to a conveyance is inoperative and cannot operate as a conveyance to the
    stranger of an interest in land.”) (quoting MGJ Corp. v. City of Houston, 
    544 S.W.2d 171
    , 174 (Tex. App.—
    Houston [1st Dist.] 1976, writ ref’d n.r.e.)). If the purported second exception was truly an independent,
    separate exception and not simply a portion of the single exception of the 90/160 interest, it would run afoul
    29
    exception construction. On the other hand, as we have said, the past-tense verb form,
    when combined with the backwards-looking reference, cannot be reconciled with a
    two-exception construction.             Therefore, we are left with only one reasonable
    construction that accounts for all of the deed’s language: there is only one exception.
    This one-exception construction also compels a particular reading of the
    whole phrase “the remaining portion of the exceptions herein are to remain the
    property of the grantor, his heirs, executors and assigns.” Here, the only exception
    stated in the Correction Deed that pertains to the royalty interests is the clause that
    excepts and reserves Clay’s 90/160 interest. Therefore, the only interpretation that
    gives meaning to this entire phrase is that 90/160 less 20/160 is the “remaining
    portion” of Clay’s interest in the property.
    By contrast, Appellees’ two-exception theory would seriously reduce, and
    perhaps extinguish, the import of the reference to the phrase “remaining portion.” If
    90/160 and 20/160 are two distinct and independent exceptions, as Appellees
    suggest, it is unclear what “remaining portion” refers to. A portion is a part of a
    greater whole. See Portion, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A share
    or allotted part (as of an estate).”). Appellees’ theory characterizes these exceptions
    not as portions of the same whole, but as distinct and independent. Again, this two-
    exception reading does not comport with the text of the Correction Deed when it is
    harmonized in its entirety.
    When read as a harmonized whole, the 1960 Correction Deed permits only
    one construction: there is one exception to the grant of the subject property. That
    exception includes a 90/160 royalty interest that Clay reserved for himself, and his
    of this rule. Instead, our construction permits and gives meaning to this language in favor of “strangers to
    the deed” because we interpret the 20/160 interest to be a portion of the 90/160 exception which the grantor
    reserved unto himself from the general warranty deed. The “intent paragraph” simply explains that a 20/160
    interest of the 90/160 interest is owned by third parties.
    30
    heirs and assigns. The Correction Deed also explains that a 20/160 portion of Clay’s
    excepted 90/160 interest belongs to and has been excepted in this conveyance in
    favor of unrelated third parties; the remaining portion of the excepted interest
    (70/160) is to remain the property of the grantor (Clay).
    Further, simple math dictates the same result. After Clay conveyed 20/160 of
    his interest to unrelated third parties, he retained a 140/160 interest in the property—
    his “remaining” interests. When the original warranty deed, and later the Correction
    Deed, divided Clay’s “remaining” interest in the property, the effect and intent of
    the parties was that the interest reserved for and retained by Clay (and his heirs and
    assigns) and the interest conveyed to the Gaskins (Joe Mac and LaVerne) would be
    the same—a 70/160 royalty interest.
    We hold that the Correction Deed unambiguously conveyed a 70/160 royalty
    interest to Joe Mac and LaVerne, as grantees, and that Clay, as grantor, reserved and
    retained ownership of a 70/160 royalty interest. We further hold that the excepted
    90/160 royalty interest reserved for Clay, and his heirs and assigns, includes the
    previously conveyed 20/160 royalty interest owned by the unrelated third parties.
    The trial court erred in concluding otherwise. Accordingly, we sustain Appellants’
    first sub-issue on appeal.
    Our disposition of Appellants’ first and second sub-issues necessarily resolves
    part of their sixth sub-issue—that the trial court erred when it entered declarations
    and quieted title in favor of Appellees rather than in favor of Appellants. With
    respect to the trial court’s declarations, our construction of the Correction Deed’s
    validity and effect requires that we sustain Appellants’ sixth sub-issue on this point
    as well. 9
    9
    Given our construction of the Correction Deed, we need not address Appellants’ assertion that
    Appellees are estopped from claiming a greater interest. See TEX. R. APP. P. 47.1.
    31
    2. The Remaining Construction Arguments Are Contingent
    The remaining construction arguments raised by the parties are contingent on
    our holding above.10 For example, Appellants argue that the “greatest possible estate
    doctrine” supports their position. To the contrary, this doctrine simply holds that
    “courts will construe a deed to confer upon the grantee the greatest estate that the
    terms of the instrument allow.” Trial v. Dragon, 
    593 S.W.3d 313
    , 322 (Tex. 2019);
    see PROP. § 5.001(a) (“An estate in land that is conveyed or devised is a fee simple
    unless the estate is limited by express words or unless a lesser estate is conveyed or
    devised by construction or operation of law.”). Thus, the greatest estate that can be
    conveyed is contingent on our construction of the terms of the Construction Deed.
    Similarly, the parties debate the applicability of the presumption of
    proportionality between the interests in the mineral estate. See, e.g., Wenske, 521
    S.W.3d at 797 (“Generally, ‘the conveyance of an interest in the minerals in place
    carries with it by operation of law the right to a corresponding interest in the
    royalty.’” (quoting Woods v. Sims, 
    273 S.W.2d 617
    , 621 (Tex. 1954))). This
    presumption can be overcome by a plainly expressed intent to convey a different
    share of such interests. Patrick v. Barrett, 
    734 S.W.2d 646
    , 648 (Tex. 1987) (citing
    Benge v. Scharbauer, 
    259 S.W.2d 166
    , 168–69 (Tex. 1953)); Brooke-Willbanks, 660
    S.W.3d at 565. Again, the effect this presumption may have on the Correction Deed
    is contingent on our construction of its language and meaning. Because we have
    held that the parties clearly expressed an intent to convey “all” of the royalty interests
    except for the reserved 90/160 interest, the presumption is overcome.
    10
    We also need not address Appellants’ breach of warranty of title claim because we have
    determined that the Correction Deed conveyed 70/160 of the royalty interest. See TEX. R. APP. P. 47.1.
    32
    C. Appellants’ Counterclaim for Trespass to Try Title Fails
    In their motion for summary judgment, which the trial court granted,
    Appellees argued, inter alia, that all of Appellants’ title counterclaims failed as a
    matter of law. Appellees’ argument is premised on their two-exception theory of the
    Correction Deed’s construction. Because we have held that the Correction Deed
    only contains a single exception of a 90/160 royalty interest, which includes a 20/160
    interest previously conveyed to and owned by unrelated third parties, this argument
    fails as to each of Appellants’ title counterclaims.
    Nevertheless, Appellants’ trespass-to-try-title counterclaim does fail as a
    matter of law (1) because asserting a trespass-to-try-title claim generally is not the
    appropriate vehicle to determine title to a nonpossessory royalty interest, and
    (2) because the Correction Deed is not void, Appellants cannot maintain this cause
    of action. 11
    Generally, nonpossessory interests, such as royalty interests, are not proper
    subjects of a trespass-to-try-title action; rather, the proper cause of action to assert is
    for declaratory judgment.12 Nat. Gas Pipeline Co. of Am. v. Pool, 
    124 S.W.3d 188
    ,
    192 (Tex. 2003); Richmond v. Wells, 
    395 S.W.3d 262
    , 267 (Tex. App.—Eastland
    11
    In their traditional motion for summary judgment, Appellees asserted that a trespass-to-try-title
    action is inapplicable to a nonpossessory royalty interest. Appellants appear to essentially concede this
    point in their appellate briefing. Regardless, when the trial court’s order does not specify the grounds for
    its grant of summary judgment, we will affirm the summary judgment if any of the theories presented in
    the motion are meritorious. MEI Camp Springs, LLC v. Clear Fork, Inc., 
    623 S.W.3d 83
    , 90 (Tex. App.—
    Eastland 2021, no pet.) (citing Provident Life & Accident Ins. Co. v. Knott, 
    128 S.W.3d 211
    , 215 (Tex.
    2003)).
    12
    A trespass-to-try-title action adjudicates title or the right of possession of real property. Lockhart,
    621 S.W.3d at 98 (citing Rogers v. Ricane Enterprises, Inc., 
    884 S.W.2d 763
    , 768 (Tex. 1994)); see PROP.
    § 22.001. To prevail, the plaintiff must recover upon the strength of his own title. Rogers, 884 S.W.2d at
    768 (citing Hunt v. Heaton, 
    643 S.W.2d 677
    , 679 (Tex. 1982)). The plaintiff may recover by proving (1) a
    regular chain of conveyances from the sovereign, (2) superior title out of a common source, (3) title by
    limitations, or (4) prior possession which has not been abandoned. 
    Id.
     (citing Land v. Turner, 
    377 S.W.2d 181
    , 183 (Tex. 1964)).
    33
    2012, no pet.) (citing T-Vestco Litt-Vadu v. Lu-Cal One Oil Co., 
    651 S.W.2d 284
    ,
    289–90 (Tex. App.—Austin 1983, writ ref’d n.r.e.)); see Lance v. Robinson, 
    543 S.W.3d 723
    , 735–37 (Tex. 2018) (discussing the propriety of a trespass-to-try-title
    action); see also TEX. R. CIV. P. 784 (The “defendant in the [trespass to try title]
    action shall be the person in possession” of the property). However, “where a deed
    is absolutely void, a suit at law in trespass to try title may be maintained to recover
    the land without setting the deed aside . . . .” Lockhart, 621 S.W.3d at 101 (quoting
    Slaughter v. Qualls, 
    162 S.W.2d 671
    , 674 (Tex. 1942)).
    Because we have held that the Correction Deed is valid and enforceable, we
    have necessarily disposed of and rejected Appellants’ arguments that the Correction
    Deed is void. Therefore, Appellants cannot maintain a trespass-to-try-title action in
    this case, and the trial court did not err when it granted summary judgment in favor
    of Appellees on Appellants’ trespass-to-try-title counterclaim. Accordingly, we
    sustain in part, and overrule in part, Appellants’ fourth sub-issue on appeal.
    The holdings that we have stated above necessarily dispose of this
    appeal; therefore, we need not address the remaining issues raised by the parties.13
    See TEX. R. APP. P. 47.1.
    13
    Appellees’ statute of limitations defense was only asserted to challenge Appellants’ counterclaim
    to invalidate the Correction Deed. Nowhere do Appellees assert that Appellants are barred by limitations
    from only asserting counterclaims to quiet title and for declaratory judgment. With respect to their estoppel
    defense, Appellees asserted that Appellants were estopped from claiming title in derogation of the
    Correction Deed. We have held that Appellants hold title unambiguously under that deed. Likewise,
    Appellees cannot assert a bona-fide purchaser defense under our holdings today because Appellees
    possessed record notice of the Correction Deed. See Cooksey v. Sinder, 
    682 S.W.2d 252
    , 253 (Tex. 1984)
    (“A purchaser is charged with knowledge of the provisions and contents of recorded instruments.”
    “Purchasers are also charged with notice of the terms of deeds which form an essential link in their chain
    of ownership.”) (internal citations omitted).
    34
    V. This Court’s Ruling
    We affirm in part and reverse and render in part.
    We affirm the trial court’s judgment, in part, insofar as the trial court granted
    summary judgment in favor of Appellees and determined that (1) the Correction
    Deed is valid and enforceable, and (2) Appellants’ counterclaim for trespass to try
    title fails as a matter law.
    We reverse the trial court’s judgment, in part, insofar as the trial court declared
    that Clay only conveyed a 50/160 royalty interest in the property to Joe Mac and
    LaVerne, and we render judgment that the Correction Deed reserved unto Clay (and
    his heirs and assigns), and conveyed collectively to Joe Mac and LaVerne, the same
    interest amount in the property—a 70/160 royalty interest.
    W. STACY TROTTER
    JUSTICE
    June 8, 2023
    Panel consists of: Bailey, C.J.,
    Trotter, J., and Williams, J.
    35