there was no actual gap or defect, and a prerequisite for proving the Lost Deed Doctrine applies as a matter of law is “undisputed evidence establishing a gap or defect in ancient deeds.” 15 As a result, Balmorhea Ranches, Inc. was unable to prevail on its Lost Deed claim. The Balmorhea court took a typically narrow view of the Lost Deed Doctrine. It held that the doctrine only applies to “ancient” gaps in title – apparently defined as gaps arising prior to the start of the Twentieth century. An actual reason for the gap must also be alleged, such as: (i) a muniment of title being lost, destroyed, or stolen; (ii) a party proving they were owed but never obtained a muniment of title; (iii) a fraudulent transfer convoluting the title; or (iv) a clerical error creating irregularities. Therefore, it appears that, at least with regard to gaps in title occurring after the turn of the Twentieth century, one will have more success quieting title through adverse possession. Another takeaway is that if you are going to assert the Lost Deed Doctrine, you should probably ensure that the deed is actually “lost”! 1 A standard adverse possession claim will assert that a party has been in “hostile, actual, exclusive, open, notorious, and continuous” possession for a period of at least ten years. Tex. Civ. Prac. & Rem. Code § 16.026. Note that a limitation title is not marketable prior to a final adjudication because it requires proof of factual elements. 2 Haby v. Howard, 757 S.W.2d 34, 39 (Tex. App.—San Antonio 1988, writ denied). 3 See Purnell v. Gulihur, 339 S.W.2d 86, 92 (Tex. App.—El Paso 1960, writ ref’d n.r.e.). 4 Magee v. Paul, 221 S.W. 254, 256-57 (Tex. 1920). 5 Fletcher v. Fuller, 120 U.S. 534, 551 (1887). 6 570 S.W.2d 876, 879-80 (Tex. 1978). 7 Id. 8 See Magee, 221 S.W. at 255; Adams v. Slattery 295 S.W.2d 859, 861 (Tex. 1956). 9 Adams, 295 S.W.2d at 861. 10 See e.g., Miller v. Fleming, 233 S.W.2d 571, 572-73 (Tex. 1950). 11 In this case, the 1830s. Page v. Pan Am. Petroleum Corp., 381 S.W.2d 949, 952 (Tex. App.—Corpus Christi 1964, writ ref’d n.r.e.). 12 2022 Tex. App. LEXIS 7840, 5-6. 13 Id. at 17. 14 Id. 15 Id. at 19.
lost, or which he . . . neglected to obtain, and of which the witnesses have passed away, or their recollection of the transaction has become dimmed or imperfect” 5 Although the Lost Deed Doctrine is usually a question of fact, it may be established as a matter of law in cases where the deeds are ancient enough and the evidence is undisputed. For example, in the 1978 case of Howland v. Hough, the plaintiff presented a continuous chain of title, except for a 33-year gap between an 1845 patent and an 1878 deed. 6 The Texas Supreme Court found that the Lost Deed Doctrine applied as a matter of law, due to the fact that the conveyances were ancient and the successor of the original patentee was unable to produce any evidence of a competing claim made by the patentee. 7 Of particular relevance is that almost all of the cases successfully applying the Lost Deed Doctrine deal with gaps of title arising in the 1800s. These gaps may exist because a deed was lost, destroyed, or stolen. 8 They may exist because the courthouse containing the records burned down. 9 There are other cases where fraudulent conveyances or clerical errors made the title so confusing that ownership was impossible to determine. 10 There are even cases applying the Lost Deed Doctrine to the period where Texas land could be sold orally, with no written deed being necessary. 11 Fast-forwarding to modern times, in the 2022 case of Balmorhea Ranches, Inc. v. Heymann, a 1919 deed conveying various tracts of land failed to explicitly describe a 200-acre parcel in Reeves County, Texas. 12 The successors to the original grantor and grantee disputed ownership pursuant to this deed, while the grantee’s successors claimed this 200-acre tract had been inadvertently omitted from the 1919 deed. Heymann (as the grantor’s successor) argued that she owned a portion of the minerals through various layers of intestacy and testacy. Balmorhea Ranches, Inc. (as the grantee’s successor) argued that despite the 1919 deed omitting the 200 acres in controversy, it owned the minerals under the Lost Deed Doctrine. The El Paso Court of Appeals first noted that there was no dispute of title up to 1919. Thus, per the Court, the facts did not involve an “ancient” document for purposes of the Lost Deed Doctrine. 13 Further, the deed was properly recorded in Reeves County and therefore could not be considered “lost.” 14 Moreover,
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G rowth T hrough E ducat i on - J anuary / F ebruary / M arch 2023
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