these and other well-settled deed construction principles (and sometimes the relevant surrounding circumstances). 5 The goal is to determine the parties’ intent within the four corners of a document by harmonizing all provisions. 6 The Court agreed with Citation and Endeavor’s argument that the tract description column in Exhibit A to the 1987 Assignment does not contain depth-limiting language, but instead, merely contains “depth references.” In reaching this conclusion, the Court gave a great deal of weight to the statement of intent above. In particular, the Court emphasized the phrase “all rights and interests now owned by Shell” and “regardless of whether same may be incorrectly described or omitted from Exhibit A.” The plain language of this provision demonstrated an intent to convey everything Shell owned as of the date of the Assignment, as to all depths. 7 The Court further observed that the reference to “footage depths and geological formations” pertained only to third-party contracts and agreements. Thus, the Court asserted, it is reasonable to assume that the depth references
in Exhibit A were only intended to apply to these third-party agreements. Finally, the Court rejected Oxy’s novel argument that the reference to third- party agreements was a mere “Mother Hubbard” clause meant to clean up only small errors. Title was thus quieted in Citation and Endeavor as to all depths. 8 This case again evinces Texas courts’ commitment to interpreting the entirety of a deed as opposed to applying mechanical rules of deed construction. Although the general rule is that an Assignment’s exhibit controls its scope, a “statement of intent” can often trump this rule. This is especially true when the statement includes language like “all rights and interests now owned” or “regardless of whether the same may be incorrectly described or omitted herein.” We note that this article has been published prior to the deadline to file a petition for review with the Supreme Court of Texas. 5 Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991). 6 Id. 7 2022 Tex. App. LEXIS 9397, at 17. 8 Id. at 19-20.
The Presumed-Lost-Deed Doctrine: A Recent Texas Case Invokes an Obscure Rule
Texas
It is common to encounter old gaps in Texas land titles. In many instances, it is reasonable to assume that these gaps have been cured by adverse possession. 1 However, when gaps in the chain of title are very old (such as before 1900), it may be difficult to prove the elements necessary to perfect title by limitation. However, you may be able to fall back on an arcane legal concept known as the Doctrine of Presumed Lost Deed. The Lost Deed Doctrine (sometimes called Title by Circumstantial Evidence), is a common-law form of adverse possession. 2 It is used when an individual or entity does not have complete record title “but has claimed ownership for a long time.” 3 The Doctrine
applies to “ancient” transactions and Texas courts have noted that without it “numberless valid land title could not be upheld.” 4 The basic idea is that the Doctrine presumes the existence of a lost deed in favor of a party who has owned real property for an extended time. As far back as 1887, the Supreme Court of the United States described this “lost deed” presumption as follows:
“The general statement of the doctrine . . . is that the presumption of a grant is indulged merely to quiet [title to] a long possession which might otherwise be disturbed by reason of the inability of the possessor to produce the muniments of title which . . . have been
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N at i onal A ssociation of D i v i s i on O rder A nalys t s
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