Mother Hubbard Clause Saves a Property Deed

Originally published by Charles Sartain.

Co-author Rusty Tucker

Bell v. Midway Petroleum Grp., L.P., 9th Dist.] Mar. 18, 2021 was a trespass to try title action, suit to quiet title for possession of a land, and a counterclaim for title by adverse possession. There are several …

… Takeaways

• A Mother Hubbard Clause can save a deed in which the property description fails to satisfy the Statute of Frauds.
• Testimony to establish adverse possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.
• Where there is a claim for adverse possession, an overly agressive party risks paying the oppoent’s attorney’s fees.
• Before you head off to the courthouse for vindication, remember that the complexity of legal and factual issues are wholly unrelated to the amount in controversey. We say that because this dispute seems like a lot of work for less than an acre of land.

Background

In 1964, Vestal and Smith purchased a .878-acre tract from the heirs of Nailor. Later, Bell, who owned land in close proximity, began to move equipment and supplies onto the property, among other activities. When those events happened was the subject of conflicting testimony. In 2012 Vestal asserted ownership and demanded Bell to vacate the property. Bell refused and asserted adverse possession, alleging the 1964 deed was invalid. Vestal sued to quiet title and have Bell evicted. Midway bought the property and was substituted as plaintiff.

After a bench trial the court held that Midway had superior and equitable title and that Bell had five days to vacate, denied Bell’s adverse possession claim, and ordered Bell to pay Midway’s attorney’s fees. The court of appeals affirmed, determining that Bell did not conclusively prove he had been in continuous possession of the property since 1989.

Sufficiency of Legal Description

To prevail on a trespass to try title claim, a party must establish that it has:

• title emanating from the sovereignty of the soil;
• superior title in itself emanating from a common source to which the defendant claims;
• title by adverse possession; or
• title by earlier possession coupled with proof that possession has not been abandoned.

Midway presented the 1964 deed that purported to convey several different tracts of land; the property description was, to say the least, vague.

Mother Hubbard to the rescue

However, the Mother Hubbard Clause read that it was “the intention of Grantors . . . to convey . . . all of the lands and properties and all right title and interest therein which Grantors may own or possess in Montgomery County School Land Survey… .”

There was never a deed for a larger 33-acre tract within which the .878 acres was located because the heirs of Nailor only had an estimate of the acreage. The Mother Hubbard Clause captured any acreage the sellers had in the Survey.

The property description in the 1964 deed did not satisfy the statute of frauds, but the Mother Hubbard Clause evidenced grantors’ intent to convey all the property owned in the Survey, which necessarily included the .878 acres.

Adverse possession

Bell, as the party who sought to establish title by adverse possession, had the burden of prove an actual, visible, continuous, notorious, distinct, and hostile appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person. Trial testimony to establish adverse possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.

At most, the evidence showed that Bell’s occupation was contested and presented nothing more than an opportunity for the trial court, as fact finder, to weigh the credibility of the witnesses, draw inferences, and make reasonable deductions from the evidence. The court of appeals deferred to the trial court as factfinder.

Attorney’s Fees

Bell’s judicial admission of unlawful possession was sufficient for the trial court to award attorney’s fees under Civil Practice and Remedies Code §16.034(a)(1), which authorizes an award to a prevailing party in a trespass to title case involving adverse possession where the claim was groundless and made in bad faith.

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