Face Challenges Confidently

477 Millican DPC Partners, LP v. Frank Bobbitt McGregor Trust

Monday, February 1st, 2016

Richard F. Brown

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

Millican DPC Partners, LP v. Frank Bobbitt McGregor Trust, 433 S.W.3d 67 (Tex. App.—San Antonio 2014, pet. filed), held a deed’s general description of the conveyed land as the same land conveyed under a prior deed evidenced the grantor’s intent to convey title to all the acreage described in the prior deed, even though the metes and bounds description in the disputed deed omitted the acreage. This dispute involved title to an oddly shaped 34-acre tract of land located between Millican and McGregor. A 2006 survey revealed that a fence line between the parties had included the 34 acres “for many years,” within McGregor’s land. Millican claimed record title to the 34 acres as part of a larger 202acre tract based on three consecutive deeds in Millican’s chain of title. McGregor claimed the deeds did not convey the disputed 34-acre tract into Millican. The parties agreed the first deed—a 1945 conveyance—included the disputed 34acre tract of land as part of a “202 acre tract in the Thomas Henry Survey, Abstract No. 130.” The second deed—a 1973 conveyance—included a total of 4,943.75 acres, and generally described the land in relevant part as: “a 202 acre tract out of Thomas Henry Survey, Abs. No. 130, and described in [the first deed].” However, the second deed omitted the 34acre tract of land in its more particular metes and bounds description, and it added up the total acreage conveyed without including the 34 acres. The third deed—a 1974 conveyance—covered the “‘Subject Property . . . more particularly described by metes and bounds [in the second deed],’” and included the same total acreage as the second deed, 4,943.75 acres.

The parties and the court agreed that the deeds were unambiguous, and therefore the court reviewed the construction of the deeds de novo. The court cited four rules of deed construction: (i) when construing an unambiguous deed, the court’s primary duty is to ascertain the parties’ true intent within the deed’s four corners; (ii) a particular description in a deed will control over a conflicting general description;(iii) a deed’s reference to another deed incorporates the latter into the former’s description; and (iv) the court will construe a deed to confer on the grantee the greatest estate that the terms of the deed will permit. The court explained that although the general rule is that “‘where there is a repugnance between a general and a particular description in a deed, the latter will control,’” this rule “‘is not to be used when the grantor’s true intention clearly and unmistakably appears . . . from language of the entire instrument.’”

Based on these principles of deed interpretation, the court found the second deed included the 34-acre tract. Although the second deed’s more particular metes and bounds description did not include the 34acre tract, the general description in the second deed “unmistakably [did] include the [34acre tract] by expressing the grantor’s intent to convey the 202acre tract in the Thomas Henry Survey conveyed by the [first deed].” The second deed’s reference to the first deed incorporated the first deed and “convey[ed] all the property included within [the first deed,] i.e., the full 202-acre tract.” To hold otherwise would “nullify the grantor’s clear intention.” Additionally, construing the second deed to include the 34acre tract would convey the greatest estate possible, in line with the fourth principle of deed construction that the court cited.

Having established that the second deed included the 34acre tract, it was an easy step for the court to find that the third deed also included the 34-acre tract. The third deed explicitly referenced the land conveyed by the second deed, thereby incorporating both the first and second deeds into its description. Therefore, the court held that Millican established record title to the 34acre tract and was entitled to summary judgment on the single issue of record title. The court reversed and remanded to the trial court for further proceedings on Millican’s right to attorney fees and McGregor’s pending adverse possession claim.

This case reinforces well established rules of deed construction, but more importantly it is another in a long line of cases holding that a legal description referring to a prior deed always relates back and incorporates all that was previously conveyed.