Face Challenges Confidently

388 Fisher v. Wynn

Tuesday, September 1st, 2015


Richard F. Brown

The following is not a legal opinion. You should consult your attorney if the case may be of significance to you.
Fisher v. Wynn, No. 12–11–00008–CV, 2011 WL 3338771 (Tex. App.—Tyler Aug. 3, 2011, no pet.) (mem. op.), held that a “subject to” clause did not act as a second conveyance of minerals in addition to the conveyance in the granting clause in a warranty deed.  Downs owned an undivided interest in the surface and minerals in five surveys.  By Partition Deed of the surface only, Downs received a 1/5 interest in the surface of the Burditt Survey and continued to own a 1/10 interest in the minerals in the Bruce, Hereford, Sublett, Williams (“BHSW Surveys”), and Burditt surveys.  Downs, as Grantor, then conveyed to Fisher, as Grantee, as follows:
“I, James Cade Downs, . . . do grant, sell and convey unto the said Kathleen Clark Fisher . . . my undivided one-fifth (1/5th) interest in and to all those certain tracts . . . of land, situated in San Augustine County, Texas, out of and a part of the JESSE BURDITT SURVEY . . . [legal description and reference to attached Exhibit A follow].”
The “subject to” clause qualified the grant by reference to the Partition Deed and stated in part:
“This conveyance is subject to the mineral reservations and exceptions made in the partition deed . . . dated June 15, 1977 . . ., HOWEVER, out of this grant there is saved, excepted and reserved, one-half of my undivided interest in the oil, gas and other minerals in, to and that may be produced from the said lands for and during my natural life . . . .  It is understood that in said partition deed so mentioned herein the surface estate was divided and the minerals were left undivided, and by this instrument I am conveying my undivided interest in said minerals unto the grantee herein . . ., subject to the above reserved life estate . . . .”
The issue was whether Downs conveyed the surface and minerals in the Burditt Survey only, or did Downs also convey all of the minerals owned by Downs in the BHSW Surveys?  The parties aligned as Grantor and Grantee.
In construing the warranty deed, the Tyler Court of Appeals followed Luckel v. White “to harmonize all of the parts, construing the instrument to give effect to all its provisions.” The court rejected Grantee’s argument that the doctrine of “last antecedent” applied, such that “said minerals” in the “subject to” clause referred to the term “minerals” immediately preceding it, which were the minerals underlying the Burditt and BHSW surveys mentioned in the Partition Deed.  The court found persuasive the fact that only the Burditt Survey lands were specifically described and thus rejected a rigid application of the “last antecedent” doctrine.  When read in conjunction with the entire warranty deed, “said minerals” clarified that the Partition Deed addressed the surface only, and therefore only the Burditt Survey minerals were conveyed.
The court held that the canons of construction urged by Grantee (last antecedent, that the greatest estate is conveyed, and that deeds are to be construed against the grantor) “should only be employed if, after harmonization has been attempted, the language remains in doubt.”  Harmonization resolved any doubt, and the court held that the deed conveyed the surface and minerals in the Burditt Survey only.
The case continues the trend toward an emphasis on the “four corners” rule and a reluctance to strictly apply as dispositive other more narrow rules of construction.