of the lands conveyed in The 1927 Deed. They also know that such an attempt at a retroactive correction instrument cannot satisfy the correction deed statute nor is it valid under Myrad common law principles since there was no ambiguity in The 1927 Deed description. This leads to the conclusion that the 2008 Boundary Stipulation is void as an attempted correction deed. So what is the effect of a ratification of a void instrument? Does it suddenly make the void instrument retroactively legally- effective as between the original parties or does it remain void and unenforceable? Under the common law, a “void act” is one which is entirely null and is therefore not binding on either party to the instrument and therefore not susceptible of ratification. 30 In the author’s opinion, the 2008 Boundary Stipulation is void ab initio as a void correction deed. 31 It cannot be ratified and made into a legally-effective deed. Therefore, as between the parties to the 2008 Boundary Stipulation, even if the October 16, 2008 Letter is determined to effectuate a ratification of the 2008 Boundary Stipulation, it does not work to make the 2008 Boundary Stipulation a valid or legally- effective instrument as to Ellison. Circular reasoning by the Court aside, nothing was ratified. It is as though the 2008 Boundary Stipulation never existed since a void instrument is no evidence of anything. No change in the legal ownership of Ellison’s leasehold estate under his lease was effectuated. NOTE: The Court apparently further refused to follow stare decisis on the matter of ratification of a void instrument (deed) by making the following comment in Footnote 10 of its opinion: “We have said that under certain circumstances, a void deed may be ratified by a formal recognition of its validity. See Reserve Petroleum Co. v. Hodge, 147 Tex. 115, 213 S.W.2d 456, 459 (1948) Because we hold that the stipulation was not void, we need not address whether a contrary holding would summarily foreclose Concho’s ratification defense.” 32 Reserve Petroleum Co. v. Hodge supra, does not provide an exception to the rule that a truly void deed may be ratified. Rather, it confirms that a truly void deed cannot be ratified as it then
exists. Only after that which made the deed truly void is corrected in the “ratification” document can it be held that a formerly void deed has been ratified. For example, where a deed was found void for failure to properly describe the lands being conveyed, the subsequent “ratification” document must contain a proper description. The Court cannot point to any Texas Real Property law or rule which allows a void deed to be ratified retroactively . Under no circumstances is the October 16, 2008 Letter a new independent conveyance. It has none of the elements of a conveyance as outlined in Provision One above. Without creating what amounts to a new and independent conveyance, the void 2008 Boundary Stipulation is and remains a void correction deed. The October 16, 2008 Letter does not comply with the Reserve Petroleum Co. case since, as a matter of law, it cannot be construed to be a new and independent conveyance. 33 This was simply a rabbit trail the Court pointed to in order to justify its position that a void deed (which the Court cleverly denied deed status to) can be ratified.
Rule of Law No. 6 - Suit to Establish an Uncertain Boundary
Ignoring the Texas law underlying the cause of action of a suit to define an uncertain boundary line, this Court has created a “new” method for retroactively settling boundary ownership between adjoining tract owners – a “boundary stipulation”. This is a term of art that does not appear anywhere else in Texas Jurisprudence but in this case and does not carry with it the protections found in Texas common law/statutory law regarding correction deeds (See Rule of Law No. 4 .) Gulf Oil Corp. v. Marathon Oil Co . 34 summarized existing Texas real property law [30] Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542 (Tex. 2016) [31] Gaynier v. Ginsberg, 715 S.W.2d 749 (Tex. App. — 1986, writ ref’d n.r.e.) [32] Concho Resources, Inc. et al. v. Ellison, 627 S.W.3d. 226, 234 (Tex. 2021) (FN 10) [33] Reserve Petroleum Co. v. Hodge, 213 S.W.2d 456 (Tex. 1948) [34] Gulf Oil Corp. v. Marathon Oil Co ., 152 S.W.2d 711 (Tex. 1941)
28
N at i onal A ssociation of D i v i s i on O rder A nalys t s
Made with FlippingBook. PDF to flipbook with ease