law-deed | deed of trust |
Courts have held that a declaratory judgment is proper when a party requests the trial court to construe a deed
or lease to determine if the instrument is valid and conveys the purported interest in dispute. See, e.g.,
Sunwest Operating Co. v. Classic Oil & Gas, Inc., 143 Fed. Appx. 614, 620 (5th Cir. 2005); Ruiz v. Stewart
Mineral Corp., 202 S.W.3d 242, 247 (Tex. App.—Tyler 2006, pet. denied).
Whether a Valid Deed Existed
Section 5.021 of the property code requires that a deed be in writing and must be subscribed or delivered by
the conveyor or the conveyor's agent. TEX. PROP. CODE ANN. § 5.021 (West 2004). However, as noted by the
Fourteenth Court of Appeals,
There is no longer a requirement, as there was at common law, that a deed or instrument to effect conveyance
of real property have all the formal parts of a deed formerly recognized at common law or contain technical
words. If from the whole instrument a grantor and grantee can be ascertained, and there are operative words or
words of grant showing an intention by the grantor to convey title to a real property interest (which is sufficiently
described) to the grantee, and is signed and acknowledged by the grantor[,] it is a deed which accomplishes a
legally effective conveyance.
Green v. Canon, 33 S.W.3d 855, 858 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). "A property
description is sufficient if the writing furnishes within itself, or by reference to some other existing writing, the
means or data by which the particular land to be conveyed may be identified with reasonable certainty." AIC
Mgmt. v. Crews, 246 S.W.3d 640, 645 (Tex. 2008).
When the purported deed has been lost or destroyed: In such a case, the existence of the writing can be
proven by parol evidence only if the witness saw the writing and can testify clearly as to its contents. Placer
Energy Corp. v. E&S Oil Co., 692 S.W.2d 197, 199-200 (Tex. App.-Fort Worth 1985, no writ) (citing Arreguin v.
Cantu, 609 S.W.2d 639, 641 (Tex. Civ. App.-San Antonio 1980, no writ); Crosby v. Davis, 421 S.W.2d 138, 142-
43 (Tex. Civ. App.-Tyler 1967, writ ref'd n.r.e.)); Hutchison v. Massie, 226 S.W. 695, 696 (Tex. Civ. App.-
Amarillo 1920, writ dism'd w.o.j.).
Delivery of the Deed
Conveyance by deed requires delivery of the deed. See TEX. PROP. CODE ANN. § 5.021; see also Noell v.
Crow-Billingsley Air Park Ltd. P'ship, 233 S.W.3d 408, 415 (Tex. App.-Dallas 2007, pet. denied). Delivery of a
deed has two elements: (1) the grantor must place the deed within the control of the grantee (2) with the
intention that the instrument becomes operative as a conveyance. Noell, 233 S.W.3d at 415. The question of
delivery of the deed is controlled by the intent of the grantor, and it is determined by examining all the facts and
circumstances preceding, attending, and following the execution of the instrument. Id. Recording a deed is not
necessary to pass title; an unrecorded deed is binding on the parties to the conveyance. Id. at 416-17 (citing
TEX. PROP. CODE ANN. § 13.001(b) (West 2004) ("The unrecorded instrument is binding on a party to the
instrument, on the party's heirs, and on a subsequent purchaser who does not pay a valuable consideration or
who has notice of the instrument.")).
TEXAS SUPREME COURT CASES ON DEEDS
Myrad Properties, Inc. v. Lasalle Bank NA, No. 08-0444 (Tex. Dec. 18, 2009)(Green)
(whether a correction deed may convey two properties when an unambiguous deed mistakenly conveyed only
one, correction deed found void, court renders judgment and orders rescission of the mistaken deed)
MYRAD PROPERTIES, INC. v. LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE
REGISTERED HOLDERS OF GMAC COMMERCIAL MORTGAGE SECURITES, INC., COMMERICIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1997-C1, ROBIN GREEN, AND MELISSA COBB; from
Bell County; 3rd district (03-07-00240-CV, 252 SW3d 605, 03-28-08)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Green delivered the opinion of the Court. [pdf]
View Electronic Briefs filed in MYRAD PROPERTIES, INC. v. LASALLE BANK NAT'L ASSOCIATION
CASES IN WHICH SUPREME COURT DENIED REVIEW
URI COHEN v. DELORES HAWKINS; from Harris County; 14th district (14‑07‑00043‑CV, ___ SW3d ___,
04‑15‑08, pet denied Nov. 2008)(real estate transaction, setting aside deed, clean hands, bona fide purchaser)
respondent's motion to compel petitioner to serve petition for review on respondent dismissed as moot
DERWEN RESOURCES, LLC AND SHRINERS HOSPITALS FOR CHILDREN, INC. v. CARRIZO OIL & GAS, INC.;
from Liberty County; 9th district (09-07-00597-CV, ___ SW3d ___, 05-28-09, pet. denied Sep. 2009) This
dispute involves the interpretation of a deed conveying an interest in a certain two hundred and twenty-nine
acre tract situated in Liberty County ("229 acre tract"). A proper analysis of the issues warrants a discussion of
the chain of title.
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