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

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)).
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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