323 Wiggins v. Cade

Richard F. Brown

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

Wiggins v. Cade, 313 S.W.3d 468 (Tex. App.—Tyler 2010, pet. denied), held that a mineral conveyance satisfies the statute of frauds if parol testimony can connect some data in the deed with some definite land.  Grantor conveyed the same nonparticipating royalty interest to Grantee #1 and to Grantee #2 by separate deeds.  Grantee #2 alleged the legal description in the prior deed did not satisfy the statute of frauds because it did not include the name of the survey or the abstract number in which the property was situated.   The beginning point was identified in the deed as follows:

BEGINNING at an offset corner, same being the northwest corner of a tract of 45 acres of land formerly owned by Mrs. Kate Crook . . . .

Grantee #2’s expert, a registered professional land surveyor, testified by affidavit that “he could not locate the property on the ground with reasonable certainty based on the legal description in the deeds because it contained neither the name of the survey or the abstract number in which the property was situated.”   Grantee #1’s expert, a landman and a lawyer, testified by affidavit that he was able to identify the survey in which the property was located by the reference in the legal description to the “45 acres of land formerly owned by Mrs. Kate Crook.”  He searched for and found Mrs. Kate Crook in the grantor/grantee indices in the Rusk County clerk’s office, and he then determined that there was only one forty-five acre tract that Kate Crook ever owned in Rusk County.

It is established that “[a] recital of ownership may be used as an element of description and may serve as a means, together with some other element, of identifying the land with reasonable certainty.”   Grantee #2 contended that the “deed must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty.”   This court held that “[a]n individual can use parol evidence to connect data described in the instrument, such as the name of a land owner, to establish the sufficiency of a legal description.”

The significance of the case is the holding which permits opinion testimony to supplement the written deed to complete the legal description of the property being conveyed.  It does seem that on these facts and as between these parties, it is possible with some effort to confirm the location of the land on the ground with reasonable certainty.  However, the public policy behind the statute of frauds in promoting the certainty of land titles should mean something more certain than parol testimony opining on a partial title opinion on a neighbor’s tract.  A deed of real property must be in writing, but this case holds that an essential element can be supplied by parol testimony, and that testimony is not even testimony as to a fact, but opinion testimony from an expert witness.  A title examiner examining title to Blackacre and faced with similar facts, must now require an examination of title to Whiteacre.  It would not be surprising to find title issues as to Whiteacre.  Must the Whiteacre tract be “owned” for the legal description on Blackacre to be enforceable?  Is it enough that there is a deed into Mrs. Kate Crook on Whiteacre, but she owns nothing?