208 Sun-Key Oil Co., Inc. v. Whealy

Richard F. Brown

The following is not a legal opinion. You should consult your attorney if the case may be of significance to you.

Sun-Key Oil Company, Inc. v. Whealy, No. 2-06-198-CV, 2006 WL 3114466 (Tex. App.—Fort Worth 2006, no pet.) holds that a conveyance of a certain number of acres out of a larger tract is an inadequate legal description. A lease which is void because of an inadequate legal description can be neither revived nor ratified. It is still void. Gray leased “150 acres of land out of the S/2 of the John Hibbins Survey” to Sun-Key. Whealy acquired Gray’s interest by a deed “subject to” Gray’s Lease. Gray and Sun-Key then amended the Gray Lease to correct the legal description. Whealy filed suit for a declaratory judgment that the Gray Lease was void. Sun-Key contended the original lease description was good and that Whealy could not contest the validity of the Gray Lease under the doctrines of revivor and ratification.

The description in the lease identifying the leased property as some of the acreage out of a larger tract did not comply with the statute of frauds and was void. The lease amendment was executed by Gray after the conveyance of Gray’s interest into Whealy and was therefore not binding on Whealy. A revivor may save a terminated lease, but only when there is a termination of a grant which was originally effective. Revivor did not apply here, because the Gray Lease was void from its inception.

The court determined that Sun-Key’s defense could only be ratification and not revivor. A recital that a deed is “subject to” some other document (here the Gray Lease) limits the grantor’s warranty and makes the grant subservient to the document named, but does nothing to create affirmative rights. If the Gray Lease had been valid, then Whealy would take subject to whatever limitation the Gray Lease imposed on the title. Here, the question was whether Whealy ratified the void lease by accepting the deed “subject to” the Gray Lease. The court held Whealy could not have ratified the Gray Lease by accepting the deed because, at the time of the conveyance, the legal description was, as a matter of law, a violation of the statute of frauds and thus void.

The significance of the case is the holding that neither revivor nor ratification will save a lease which is void because of a defective legal description. It is still void. A description of an unidentified portion of a larger, identifiable tract, is void as a matter of law.