The answer to the question is yes , a surveyor could locate the described tract on the ground and find it contained 301 acres, not 147 acres. Clearly, the description in the 1927 Deed is unambiguous as found by the Court of Appeals and as evidenced by the 1939 Survey and all of the title opinions covering the Concho Defendants’ “493 acres, more or less”. This decision on the interpretation of the Wooten/Stribling Case analysis cannot stand. This Court must recognize that some firm, immovable rules of property are beneficial to the continuing stability of recorded legal titles to real property. The description in The 1927 Deed , as a matter of law , is not now nor was it ever ambiguous. For the Court to impose a rule today allowing for a determination of ambiguity based on “subjective” analysis by the parties and “off record” surrounding circumstances, as The Court now suggests, cannot be allowed to be the rule of law by which property descriptions are analyzed.
and ownership of the lands at issue would have remained the same as before the 2008 Boundary Stipulation since such instrument would have been found to be void as an impermissible correction deed. A valid deed that has an unambiguous/ certain description may not be retroactively corrected under Texas common law 25 (“ Myrad”) or, since 2011, under our Correction Instrument (Deed) statute, Texas Property Code §§5.027–.030) Any title examiner encountering a retroactive correction deed in the chain of title under examination would make an initial threshold inquiry of whether the deed at issue (The 1927 Deed) contained an “ambiguity or error” in its description as an essential requirement to validate such “retroactive correction deeds”. As seen in the analysis of Wooten and Stribling above, the lands at issue in this case could be located on the ground by a surveyor, thus negating any argument that such description was indefinite/ambiguous. It should be pointed out that the 2008 Boundary Stipulation was executed in 2008, three years prior to the effective date of the correction deed statute in 2011. Thus, the Correction Instrument (Deed) statute was inapplicable in this case and irrelevant to any analysis of the 2008 Boundary Stipulation . The Court should have found the 2008 Boundary Stipulation to be a conveyance. Thereafter, Myrad common law principles should have been applied to correctly find that 2008 Boundary Stipulation was void as a retroactive attempt to correct an unambiguous deed. The Court avoided the required Myrad common law correction deed analysis by finding that the instrument was not a conveyance. It had to! Otherwise , the 2008 Boundary Stipulation would have been found to be a void correction deed. At common law, even the parties to the original conveyance in question, or their successors in interest, cannot execute a legally-
B. Correction Deed Analysis
It is apparent that this Court is holding, contrary to Texas real property law and its refusal to follow stare decisis , that the 2008 Boundary Stipulation – despite its express conveyance language - is NOT a deed but rather a boundary location stipulation agreement (The Court’s language/classification, not the author’s). Were the Court to have found that the 2008 Boundary Stipulation was in fact and in law a deed, such a ruling would have triggered the required statutory and common law correction deed analysis to first determine whether there was ambiguity or error in the description in the 1927 Deed that was being retroactively corrected. There was no such inquiry into the ambiguity of the 1927 deed description. It must be remembered that the same description is found in the oil and gas lease(s) under which Mrs. Ellison claims to own a working interest in the 301 acre tract. Had the ambiguity inquiry been made into the description found in the 1927 deed as well as the oil and gas lease(s) through which Mrs. Ellison claims title to a working interest, the description
[25] Myrad Properties, Inc. v. LaSalle Bank National Ass’n, 300 S.W.3d 746 (Tex. 2009)
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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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