A Partition Deed Fails in Texas

Originally published by Charles Sartain.

Cases like Hahn v. Gips et al are like eating your broccoli – not so tasty but lots of fiber. The “fiber” here is the effect of a partition deed in which not all the cotenants join.

The “Parent Property” was a 74.15 acre tract in DeWitt County, Texas. Kenneth and George each owned half of the surface and an undivided 1/4^th of the minerals. Siblings Charles and Doris each owned an undivided 1/4^th of the minerals.

Kenneth and George executed partition deeds, each granting the other a 37.07 acre tract. Each deed purported to grant the grantor’s ½ interest in the surface and 1/4^th interest in the minerals, subject to certain reservations.

Kenneth conveyed to the Gipses 100% of the surface of his tract, reserving a ½ NPRI in the 1/4^th mineral interest that he owned (i.e. … a 1/8th royalty … ) and subject to the 3/4^th mineral interest belonging to the other three. The Gipses leased to Conoco.

Partition of the mineral estate?

An agreement to partition land must bind all the owners or none is bound. Neither Charles nor Doris executed, so they were not parties.  Thus, none of the four cotenants were bound by this purported partition of the mineral estate.

Generally, a partition deed is not a conveyance of title. Instead, the effect is to divide the property, giving each grantor the share which he already owned. A partition deed is merely the division of the property so that each may have exclusive use and occupancy as he sees fit.

The trial court concluded that Kenneth conveyed to the Gipses all of his interest in the minerals under his tract, less a royalty equal to 1/8th of the landowner’s royalty which “floats in accordance with the size of the landowner’s royalty.” The court of appeal disagreed. The deed reserved to Kenneth an undivided 1/2 NPRI in what he then owned, being an undivided half of his 1/4^th in the royalty.

If a deed reserves a fraction of the minerals under the land conveyed, then it reserves a fraction of that part of the mineral estate actually owned by the grantor and conveyed in the deed. But, if the deed reserves a fraction of the minerals under the land described, then the deed reserves a fraction of the minerals of the entire physical tract, regardless of the part of the estate actually conveyed.

The meaning of “subject to”

The phrase indicates a grantor’s intent to exclude the interest described under the particular clause. The phrase creates exceptions in the deed to favor those excepted interests listed. Thus, the Gips deed recognized and excluded the undivided combined 3/4^th mineral interest owned by George, Doris and Charles.

The result:

Everett McGill would be proud. Just as he led Delmar and Pete on their odyssey, I brought you all this way for nothing. Who got what is too complicated to describe without making this already long entry too long. See page 16 of the opinion if you want to know. Let the general principles be your takeaway.

A musical interlude

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