Harlan v. Vetter

732 S.W.2d 390, 98 Oil & Gas Rep. 176, 1987 Tex. App. LEXIS 7563
CourtCourt of Appeals of Texas
DecidedMay 28, 1987
Docket11-86-217-CV
StatusPublished
Cited by34 cases

This text of 732 S.W.2d 390 (Harlan v. Vetter) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harlan v. Vetter, 732 S.W.2d 390, 98 Oil & Gas Rep. 176, 1987 Tex. App. LEXIS 7563 (Tex. Ct. App. 1987).

Opinions

OPINION

ARNOT, Justice.

This is an appeal from a declaratory judgment action wherein the trial court found that a document entitled “Affidavit” was insufficient as a conveyance of the minerals. We affirm.

Appellant, Norma Jean Harlan, contends that her husband, Eugene H. Harlan, conveyed certain mineral interests in Texas to her in an instrument which created a joint tenancy with right of survivorship. The only appellees who filed a brief are the children of Eugene H. Harlan.

The instrument, in its entirety, reads as follows:

STATE OF TENNESSEE
COUNTY OF DeKALB
AFFIDAVIT
PERSONALLY APPEARED, before me, the undersigned Notary at Large, [392]*392Eugene H. Harlan, and upon his oath, deposes and says:
THAT he is the owner of Mineral and Oil Leases being situated in Texas (19 counties approximately), Arkansas, Kansas, Kentucky, Louisiana and Oklahoma;
THAT he purchased these Mineral Interest from his father in 1952; FURTHER, that he is very ill with heart disease and the work of assessing and setting up in book form has fallen entirely upon his wife, NORMA JEAN HARLAN.
FURTHER, IT IS THE WISH OF Eugene H. Harlan, by the execution of this instrument, that his wife be considered to own these Mineral Interests with him as Joint Tenants, with the right of Sur-vivorship; that this Affidavit will suffice to be filed in the appropriate counties and will stand as indeed a Mineral Deed.
FURTHER, it is the wish of Eugene H. Harlan that his wife be considered to have full power and authority over the now existing producing royalties; that she have the power to sell, assign and convey, if she deems it necessary; that she have full power and authority to sell the non-producing mineral interest or retain them, whatever suits her best. By this Affidavit, Eugene H. Harlan, gives to his wife, to be hers absolutely upon his death, all the right, control and ownership of what was United Royalty Corporation, a Missouri corporation, as well as all interest Eugene H. Harlan had in and to the Mineral Interest that may or may not be in the name of United Royalty Corporation, a Missouri corporation, and conveys, upon his death, full right and title to the mineral interest in his name solely. It is further the wish of Eugene Harlan, that no one cause his wife any problem in carrying out the wishes of Eugene H. Harlan.
DATED THIS the 19th day of June, 1981, and signed in the presence of witnesses.

Neither party alleges nor contends this instrument is ambiguous. No extrinsic evidence of the intent of the parties was introduced.

For a deed or instrument to effect conveyance of real property, it is not necessary to have all the formal parts of a deed formerly recognized at common law or to contain technical words. If, from the whole instrument, a grantor and grantee can be ascertained, and if there are operative words or words of grant showing an intention of the grantor to convey title to a real property interest to the grantee, and if the instrument is signed and acknowledged by the grantor, it is a deed which is legally effective as a conveyance. Harlowe v. Hudgins, 84 Tex. 107, 19 S.W. 364 (1892); Brown v. Byrd, 512 S.W.2d 753 (Tex.Civ.App.—Tyler 1974, no writ); Harris v. Strawbridge, 330 S.W.2d 911 (Tex.Civ.App.—Houston 1959, writ ref d n.r.e.).

It is not the intention that the parties may have had but failed to express in the instrument, but it is the intention that is expressed by the instrument. Alford v. Krum, 671 S.W.2d 870 (Tex.1984). We have examined the document in its entirety to determine what is the intention expressed by the instrument.

1. Can a grantor and grantee be ascertained?

Clearly, Eugene H. Harlan can be identified as the grantor, and Norma Jean Harlan can be identified as the grantee.

2. Is the instrument signed and acknowledged by grantor?

The instrument is executed and acknowledged by the grantor.

3. Are there words of grant or operative words of grant showing the intention of grantor to convey title?
The following clauses provide:
a. “It is the wish of Eugene H. Harlan, by execution of this instrument, that his wife be considered to own these Mineral Interests, with him as Joint Tenants, with the right of survivor-ship....” (Emphasis added)
b. “It is the wish of Eugene H. Harlan that his wife be considered to have full power and authority over the [393]*393now existing royalties....” (Emphasis added)

We are of the opinion that “wish ... [to] be considered” to “own” or “have” are not sufficient operative words to convey title. The word “wish” is precatory: a recommendation or advice .or the expression of desire, but not a positive command or direction. Langehenning v. Hohmann, 139 Tex. 452, 163 S.W.2d 402 (1942); Haltom v. Austin National Bank, 487 S.W.2d 201 (Tex.Civ.App.—Austin 1972, writ ref d n.r.e.).

c. “Eugene H. Harlan gives to his wife to be hers absolutely upon his death, all right, control and ownership of what was United Royalty Corporation....” (Emphasis added)

The operative word is “give.” The parties agree that this gift is a transfer of personal property: stock in a corporation. This clause is not a transfer of real property and, therefore, is not considered in the determination of whether this is a deed.

d. “Eugene H. Harlan ... conveys, upon his death, full right and title to the mineral interest in his name solely.” (Emphasis added)

“Conveys” is a word of grant. A person may make an inter vivos conveyance of an estate of feehold or inheritance that commences in the future, in the same manner as by a will. TEX. PROP. CODE ANN. sec. 5.041 (Vernon 1986). A grantor may deed property that does not become absolute until the end of his life. Woodworth v. Cortez, 660 S.W.2d 561 (Tex.App.—San Antonio 1983, writ ref’d n.r.e.); Davis v. Zeanon, 111 S.W.2d 772 (Tex.Civ.App.—Waco 1937, writ ref’d).

We are of the opinion that Clause (d) contains words of grant showing the intention of Eugene H. Harlan to convey title to real property. However, for a deed to be an effective transfer of title, it must contain an adequate property description.

Appellant urges that the reference in the legal description to “the mineral interest in his name solely,” along with the other recitals in the deed, adequately describes the property.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fugedi v. Initram
Fifth Circuit, 2022
Mueller v. Davis
485 S.W.3d 622 (Court of Appeals of Texas, 2016)
in the Matter of the Estate of J.L. Beasley
Court of Appeals of Texas, 2014
MASGAS v. Anderson
310 S.W.3d 567 (Court of Appeals of Texas, 2010)
Bernard Dolenz, Trustee v. Juan Banda
Court of Appeals of Texas, 2009
Reiland v. Patrick Thomas Properties, Inc.
213 S.W.3d 431 (Court of Appeals of Texas, 2006)
Gore Oil Co. v. Roosth
158 S.W.3d 596 (Court of Appeals of Texas, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
732 S.W.2d 390, 98 Oil & Gas Rep. 176, 1987 Tex. App. LEXIS 7563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harlan-v-vetter-texapp-1987.