DID YOU REALLY CONVEY ANYTHING BY YOUR DEED? OR A BRIEF LOOK AT Concho Resources, Inc. et al v. Ellison, 627 S.W.3d 226 (Tex. 2021) (“Ellison”)
CAVEAT: This article examines only one part of a Texas Supreme Court case. The following analysis is not to be construed as a review of all of the issues raised in the case and addressed by the Court. This article was written to alert attorneys, landmen, bankers, executors, trustees – parties who regularly prepare and/or execute deeds to third parties to effectuate a variety of purposes, of the potential devasting effect of the above identified case. Part of the Ellison case brings into question whether an instrument is or is not a conveyance when it: (i) identifies the grantor and grantee; (ii) contains an accurate property description and (iii) is signed by at least the grantor. At issue in this case was a document styled “Boundary Stipulation of Ownership of Mineral Interest” (“Boundary Stipulation”) which contained the following words: “ This Stipulation shall be deemed to contain adequate words of grant and conveyance as are necessary and proper to transfer and vest the ownership of the mineral estate in the lands in each of the Parties in the amounts and proportions set out above …” The mineral owners under two adjacent tracts of land were attempting to change the ownership of the mineral estate under both tracts by establishing a boundary line DIFFERENT from that found in the initial conveyancing instrument(s) as well as conveying each to the other sufficient mineral interests in the lands at issue to effectuate the purposes of the instrument and vest title to the mineral estate in the respective mineral owners. Significantly, the mineral ownership was made retroactive to a date corresponding to the date of Ellison’s oil, gas and mineral lease. Ellison was not a party to the Boundary Stipulation. The Court determined that the Boundary Stipulation, with an identified grantor/grantee, signed by both parties and containing an accurate property description was not a conveyance as will be further elaborated on below. (Ultimately, the Texas Supreme Court held that Ellison was
precluded from asserting her clearly vested and proved title. In fact, the Court asserted that actual title considerations were immaterial to the opinion in a trespass to try title case. The opposing oil companies actually conceded Ellison’s title had been conclusively proved and were not disputing that fact.) This ruling casts enormous doubt on what is a legal conveyance and, when the ruling is examined in light of the tens of thousands of prior general warranty deeds, executor’s deeds, trustee’s deeds, stipulations of interest etc. containing similar grant language as that used in the Ellison case, whether these past documents were or were not legal conveyances. There is one simple issue that was raised by the foregoing language: Were the words of grant coupled with the identification of grantor and grantee and execution of the Boundary Stipulation by both parties sufficient to initially constitute the instrument in legal effect a conveyance? (Correction deed analysis will not be a part of this article. However, it should be pointed
out that further analysis of the Court’s opinion would yield additional problems such as the fact that the Boundary Stipulation instrument was not only a correction deed
but it was also a VOID correction deed. Such a legal conclusion would have alone forced the Court to affirm the Appeals Court decision awarding title to the lands at issue to Ellison. This article, however, will stop in its analysis of the opinion to focus on the question of what are title attorneys to look at in each instrument in a chain of title – the label/title/style of the instrument or what the verbiage in the instrument actually accomplishes.) In the Court’s first opinion it was stated: “ We need not reach Concho’s alternative argument that the
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