Angell v. Bailey

• Citation: 225 S.W.3d 834
• Decision Date: 24 May 2007
• Docket Number: No. 08-05-00404-CV.,08-05-00404-CV.
• Parties: Debra Warner ANGELL, Jennifer Angell McKEE, Jeanne Warner Clark, Hope Clark Fontanes, Jesse Beall Clark, Jr., Jeanne Claudia Clark Stewart, Bret Warner Clark, Frank D. Norris, Joe Warner Norris, Nancy Norris Harris, and Norma Norris Gist, Appellants, v. S.A. BAILEY, Jack Ellison, Their Unknown Heirs, and Tom Nance, in his Capacity as Receiver, Appellees.
• Court: Court of Appeals of Texas

225 S.W.3d 834

Debra Warner ANGELL, Jennifer Angell McKEE, Jeanne Warner Clark, Hope Clark Fontanes, Jesse Beall Clark, Jr., Jeanne Claudia Clark Stewart, Bret Warner Clark, Frank D. Norris, Joe Warner Norris, Nancy Norris Harris, and Norma Norris Gist, Appellants, v. S.A. BAILEY, Jack Ellison, Their Unknown Heirs, and Tom Nance, in his Capacity as Receiver, Appellees.

No. 08-05-00404-CV.

Court of Appeals of Texas, El Paso.

May 24, 2007.

Scott Johnson, Pecos, for Appellants.

Greg M. Holly, Monahans, for Appellees.

Before CHEW, C.J., McCLURE, and CARR, JJ.

OPINION

KENNETH R. CARR, Justice.

This appeal arises from a suit to remove a cloud on the title of real property located in Reeves County, Texas. Following a bench trial, the court ruled in favor of Appellees, the heirs of S.A. Bailey and Jack Ellison. Appellants, led by Debra Warner Angell, appeal.¹ For the reasons that follow, we reverse and render in part, affirm, as modified, in part, and remand to the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

In 1936, D.M. Warner and his wife Mary Warner conveyed 299.51 acres to their son E.D. Warner (the "E.D. Warner deed"). The description of the conveyance was as follows:

[A]ll that certain lot, tract, piece or parcel of land lying and being situated in Reeves County, State of Texas, and more particularly described as follows, to-wit:

Being the North one-half of Section No. 9, Block C, 20, Reeves County Public School Land, containing 320 acres; save and except, however, the following described tracts of land which have heretofore been sold and conveyed to the following named parties, to wit:

2.49 acres out of the Southwest 40 acres of said above described Section which was sold to the State of Texas for Highway purposes;

10 acres conveyed to Jack Ellison; 2 acres conveyed to Lawrence Martin; 2 acres sold to S.A. Bailey; 2 acres sold to Norman Ellison and 2 acres sold to Mr. Anderson, all of said last mentioned 18 acres being out of the Southeast forty acres of said above mentioned section; making a total of 299.51 acres hereby conveyed.

Appellant Angell² is E.D. Warner's granddaughter and one of his successors in interest of the Reeves County property. Appellees are the unknown heirs and successors in interest to Bailey and Jack Ellison.³ Although the deed records in Reeves County contain records of the Martin, Norman Ellison, C.D. Anderson,⁴ and State conveyances, there are no recorded deeds for the remaining ten acres purportedly "conveyed" to Jack Ellison or the two acres purportedly "sold" to Bailey. Neither Bailey nor Jack Ellison has ever made any use of the property. Despite a diligent search, no record of Bailey, Jack Ellison, or their successors in interest has been located in the Reeves County records. E.D. Warner's decedents have leased the property for mineral exploration for many years and have paid taxes on up to 308 acres of the described property for some time.⁵

Angell brought this suit in Reeves County to remove a cloud on the property's title created by the unrecorded Jack Ellison and Bailey interests.⁶ Following a bench trial, the court below ruled in favor of Bailey and Jack Ellison. The trial court determined that the deed was unambiguous and ruled that the Jack Ellison and Bailey exceptions created a co-tenancy between them and the parties to this appeal. The court also determined that Angell was estopped to deny the titles of Jack Ellison and Bailey, respectively, in the twelve acres at issue.

In her sole issue for review, Angell asks this Court to determine the effect of the Jack Ellison and Bailey exceptions in the E.D. Warner deed. Angell contends that the exceptions are void for lack of a sufficient description and that the twelve acres therefore passed to E.D. Warner. She argues first that the trial court erred by concluding that the exceptions were sufficiently described and that they created a co-tenancy between the parties to this appeal. Second, she argues that the trial court erred in applying the doctrine of estoppel by deed.

DISCUSSION

As the trial court construed the deed, it concluded that the exceptions were sufficiently described and are therefore valid, resulting in a co-tenancy among Appellants, Bailey, and Jack Ellison, as well as Martin, Norman Ellison, and Anderson. Angell argues that the exceptions cannot be the source of any interest for Jack Ellison and/or Bailey, because they are not sufficiently described in the deed.

The construction of an unambiguous written instrument is a question of law, which is reviewed de novo. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650-51 (Tex.1999). In a de novo review, erroneous conclusions of law are not binding on an appellate court. Heritage Resources, Inc. v. Hill, 104 S.W.3d 612, 621 (Tex.App.-El Paso 2003, no pet.). If a reviewing court determines that the judgment rendered was proper, despite an erroneous conclusion of law, the error does not require reversal. Id.

A court's primary goal when construing a deed is to determine the intent of the parties, as expressed in the document. Lane Bank Equip. Co. v. Smith S. Equip., 10 S.W.3d 308, 321 (Tex.2000); Concord Oil Co. v. Pennzoil Exploration & Prod. Co., 966 S.W.2d 451, 465 (Tex.1998). With some exceptions not relevant here, we determine the parties' intent from the language of the instrument. See Luckel v. White, 819 S.W.2d 459, 461-62 (Tex.1991) (the "four corners" rule requires a court to determine the parties' intent from the language of the deed); see also CenterPoint Energy Houston Elec., L.L.P. v. Old TJC Co., 177 S.W.3d 425, 430 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (extrinsic evidence of the parties' intent is admissible only when an ambiguity is apparent on the face of the deed, in a suit for reformation, or when a party alleges fraud, accident, or mistake). In our construction, we must attempt to harmonize and give effect to all of the instrument's provisions, so that none will be rendered meaningless. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133-34 (Tex.1994).

Initially, we note our agreement with the trial court's interpretation of the Warner deed, to the extent that it held that the reference to "the above described Section" within the third and forth paragraphs, as quoted above, necessarily refers only to the North half of Section No. 9, Block C, 20, Reeves County Public School Land. It is also clear from the four corners of the Warner deed that the Bailey and Jack Ellison exceptions are located within the "southeastern-most" forty acres of the North half of Section No. 9, Block C, 20. There is no evidence of a controversy over the title to the other 7/8ths (forty acres being 1/8th of one-half of a Section) of the North half.⁷ Therefore, with the exception of the southeastern-most forty acres⁸ and the 2.49-acre conveyance to the State (which is not in dispute), the cloud on Angell's title can and should be removed. To the extent that the trial court's denial of any relief to Angell leaves a cloud on her title to the tracts described in the footnote,⁹ we will reverse the decision of the trial court and render judgment in favor of Angell.

The interests of Martin, Norman Ellison, and Anderson are likewise clear. The deed records of Reeves County which are contained in the record before this Court reflect that each of these three 2-acre "tracts" actually consists of a one-fifth (20%) undivided interest in the southeastern-most 10-acre parcel of the property covered by the E.D. Warner deed.¹⁰ Collectively, therefore, they own an undivided three-fifths (60%) of that parcel. The ownership of the remaining, undivided, two-fifths (40%) of that parcel, plus the remaining 30 acres of the property covered by the E.D. Warner deed, is less clear.

The references to the Jack Ellison and Bailey interests are said to be "exceptions" to the E.D. Warner conveyance. An exception is a "mere exclusion from a grant of some interest which may be vested in the grantor or outstanding in another." Fuentes v. Hirsch, 472 S.W.2d 288, 293 (Tex.Civ.App.-El Paso 1971, writ ref'd n.r.e.). An interest excepted from a grant is excluded from the conveyance, so it does not pass to the grantee.¹¹ Scholz v. Heath, 642 S.W.2d 554, 557 (Tex.App.-Waco 1982, no writ).

Conversely, a reservation or exception in favor of a stranger to a deed does not convey any title to such stranger. Jackson v. McKenney, 602 S.W.2d 124, 126 (Tex.Civ.App.-Eastland 1980, writ ref'd n.r.e.). By the same token, strangers to the deed have no right to establish title by recitals in such deed.¹² Canter v. Lindsey, 575 S.W.2d 331, 335 (Tex.Civ.App.-El Paso 1978, writ ref'd n.r.e.); Little v. Linder, 651 S.W.2d 895, 900-01 (Tex.App.-Tyler 1983, writ ref'd n.r.e.).

Applying the law of conveyances, the trial court determined that the references to Jack Ellison and Bailey created a co-tenancy with Appellants. It is well established that the conveyance of an undivided interest in a certain number of acres out of a larger tract does create a co-tenancy among the title holders. In such a case, the co-tenants' respective interests are measured as fractional interests, the numerator being the number of acres owned and the denominator being the total number of acres in the larger tract. See Williams v. Kirby Lumber Corp., 355 S.W.2d 761, 763-64 (Tex.Civ.App.-Beaumont 1962, writ ref'd n.r.e.) (citing Turner v. Hunt, 131 Tex. 492, 116 S.W.2d 688, 690 (Tex.1938), and House v. Humble Oil & Ref. Co., 97 S.W.2d 314, 318 (Tex.Civ.App.-Beaumont 1936, writ ref'd)).

We believe that the trial court's reasoning on this point is in error, because the plain language of the deed (quoted above) states that the twelve acres at issue were excepted from the conveyance. As noted above, it is clear that D.M. Warner et ux. did not intend to convey anything to Jack Ellison or Bailey by this instrument.¹³ The use of the phrase "subject to" indicates the grantors' intent to exclude the Jack Ellison...