agreement among the parties to an original conveyance as a means to correct a material error and does not otherwise provide that the existence of an assign must supersede or replace that method, we conclude that the court of appeals erred in holding that the statute requires the joinder of assigns to validate the correction instrument.” Result – an original owner with NO interest in the property/interest at issue can materially change and even divest a present owner of its interest without its permission. In this case, the interest of XYZ Oil Company et al changed from a fee simple interest to a life estate in that interest. This result is beyond baffling. The decision also looked at § 5.030 dealing with good faith purchasers for value. The court held: “Thus, even when a correction instrument is properly executed and recorded, a bona fide purchaser’s property interest still controls if the purchaser acquired its interest prior to the correction instrument being recorded…” The court remanded the case back to the court of appeals to consider XYZ Oil Company et al’s argument about being a good faith purchaser. Obviously, no remand would have been necessary had the court only made the correct interpretation of § 5.029. Is the reverse of this case’s facts sufficient to cause a correction deed to be declared invalid? That is, if an original party to the deed being corrected does not sign the correction instrument but the subsequent owner does, what is the effect of the correction instrument? This case only addresses the situation where an original owner executes the correction instrument but a subsequent then owner of the property/interest does NOT execute same. Is the correction deed valid if an original owner (perhaps one out of several) did not sign the document? Unknown at this time. New rule – get everyone who executed the original instrument that is alive at the time of the correction instrument as well as all present owners of the property/interest to execute the correction instrument. Will you then be assured you have a valid correction deed? Unknown at this time. However, based on this opinion, any result, no matter how absurd, could take place. I do not know if a call for amicus briefs has been made to date. In my opinion, all concerned landmen,
bankers, attorneys – heck, anyone involved in business involving conveyances, should write and let the court know it has made a serious interpretation error which needs to be corrected. I notice at last count there were ten (10) such briefs filed in the un-official companion case of Concho Res. Inc. v. Ellison , No. 19-0233. Surely this case is of equal importance and deserves equal attention. Last, as the dissent in the case points out, without litigation, many Texas landowners may face a loss of all or part of their interest caused by parties who no longer own any interest in the pertinent lands. In light of this statement, the reader should not think the correction deed statutes apply only to correction deeds execution after September 1, 2011 (effective date of the correction deed statutes). “§ 5.031. Correction Instruments Recorded Before September 1, 2011 A correction instrument recorded before September 1, 2011, that substantially complies with Section 5.028 or 5.029 and that purports to correct a recorded original instrument of conveyance is effective to the same extent as provided by Section 5.030 unless a court of competent jurisdiction renders a final judgment determining that the correction instrument does not substantially comply with Section 5.028 or 5.029 .” (emphasis added) RESULT – EVEN MORE POTENTIAL LITIGATION
© Terry E. Hogwood 2020 Law Office of Terry E. Hogwood Website – terryehogwoodattorney.com OFFICE: 713.823.4949 E-Mail – terrye.hogwood@gmail.com
Articles are not intended to be and should not be relied upon as legal advice or to establish any kind of an attorney- client relationship with the author. Please contact the author of this article if you have any questions This newsletter was prepared by Terry E. Hogwood for use by his clients and prospective clients as a reference tool only. Any comments and/or legal conclusions contained in this newsletter are solely those of the author and reliance thereon by any reader of this newsletter is at the reader’s sole risk.
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