Duhig rule

BEN____Can you win appeal to the Duhig rule If you can prove intent of parties involved in the sell of property and mineral reservation and conveyance?                                                                                      Example of real case in question---Original Seller Grantor RS has 100% title to surface and minerals as far back as records go. RS sell property to IW with reservation--"There is also excepted and reserved herefrom an undivided one-half interest in and to all of the oil,gas and other minerals, together with the right of ingress and egress and the usual and necessary rights incident to the full enjoyment of the same"        IW now has title to all the surface and 50% of the minerals ----few years later IW (now the Grantor) sell property to CF with intent understanding they would spilt the minerals--- in warrent deed with vendor's lien  it states "There is also excepted and reserved herefrom an undivided one-half interest in and to all of the oil, gas and other minerals, together with the right of ingress and egress and the usual and necessary rights incident to the full enjoyment of the same"  Being the same land described in deed from RS to IW as recorded-----------Rusk County, Texas  "It is hereby stipulated that Grantors (IW) are conveying an undivided one-half interest in and to all of the oil, gas and other minerals in and under the above described lands"(to CF--Grantee) --------- later years CF heirs (CF desc) sell surface of land to (EW)and desire to reserve all minerals------- In their Warrenty and Vendor's Lein they descript history and list------ Reservations from and Exceptions to Conveyance and Warrent----(1) minerals reservation as set out in deed from RS to IW  (2) Minerals reservation as set out in Deed from IW to CF (3) Grantor { which is same as CF} further reserve for themselves title all oil, gas, and others minerals which maybe produced and saved from the above described tracts or parcels of land  (4) This conveyance is further made subject TO ANY AND ALL PREVIOUS RESERVATIONS APPEARING OF RECORD.     NO ACTIVITY FOR 50 Years on mierals so family member nothing to appeal or question about---- go forward to present time leasing activity appears-- the heirs of CF lease property. The heirs of IW no knowledge untill a landsman call about leasing since landman found minerals deed from estate of IW transferring mineral out of the estate to indivual heir and heirs of IW look at lease offer but then landsman said after research and running title the deeds are ambiguous and "Duhig Rule" cuts IW heirs out. There are two living that can remember intent of IW grantor to grantee CF on sell. Unless CF heirs honor intent does IW heirs have cause of action to set Duhig aside if intent trumps Duhig if IW can prove in deposition what the intent was between parties. The person that would be deposed is daughter of CF. Heirs that receive minerals are the grandchildren who were yet to be born when property was sold???????? Also the warrent deed CF heirs sell BEN THANKS IN ADVANCE FOR YOU REVIEW---The question is does IW heirs have any claim to their intended minerals from their parent or does Duhig result in estoppeal

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Replies to This Discussion

Permalink Reply by Ben Elmore on February 10, 2011 at 15:20
It will certainly help.
Permalink Reply by Silver Doller Jim West on March 16, 2011 at 16:00
I have never seen a duhig overturned, I can almost guarantee you are going to be throwing good money @ bad!
Permalink Reply by Ben Elmore on March 17, 2011 at 2:48
Actually Duhig has less teeth these days than it used to.  Courts are more willing to reform deeds to match the parties' intent.  But it certainly depends on the Judge.
Permalink Reply by adubu on March 17, 2011 at 3:08
Ben--- can you please reference cases that court have approved reformation of deeds for me? Thanks
Permalink Reply by Ben Elmore on March 17, 2011 at 3:33

Not off the top of my head.  Take a look at this September 2010 section report of the Texas State Bar, Oil & Gas Section, and in particular the article entitled "Ding Dong, Duhig is Dead!"

 

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Permalink Reply by adubu on March 17, 2011 at 10:41
Ben---thanks I had seen this article by Terry Hogwood--excellent---I was hoping you had some personal cases or others in brief--again THANKS
Permalink Reply by Silver Doller Jim West on March 17, 2011 at 11:39

Let's see a few reversal judgements, until than, good luck!

Permalink Reply by adubu on March 20, 2011 at 6:03
Ben-- a question of conveyance of minerals in warrant deed. Grantor conveys 1/4 mineral interest to Grantee in warrant deed but says nothing about reservation of any minerals to grantor. Deed is signed and filed. The question who has title to the other 3/4 minerals assuming grantor owned 100% prior to sell. Does Grantor retain 75% or does grantee now have 100% since no reservation was made in the warrant deed by grantor. If grantor only had 25% I assume he conveyed the 25% he had to grantee in the deed. So question ---in general grantor must make reservation of minerals in deed if not any minerals he had is conveyed without mention in deed to grantee --is this correct?
Permalink Reply by Ben Elmore on March 20, 2011 at 10:53

Grantor owns 100% of mineralss and conveys "1/4th mineral interest in and to minerals under the land" then grantor owns 3/4ths and grantee owns 1/4th.  No need for a reservation.

 

Grantor owns 1/4th of inerals and conveys "1/4th mineral interest in and to minerals under the land" then grantor owns nothing and grantee owns 1/4th mineral interest.

 

Grantor owns 1/4th of minerals and conveys "1/4th of minerals owned by grantor" then grantor owns 1/16th and grantee owns 1/16th.

 

In these situations, a reservation is unnecessary.

Permalink Reply by adubu on March 20, 2011 at 11:20
Ben--- would that be 3/16 owned by grantor and 1/16 by grantee if conveys 1/4that  owned by grantor if grantor owned 1/4th
Permalink Reply by Ben Elmore on March 21, 2011 at 2:55
Yep, sorry - typo
Permalink Reply by adubu on March 20, 2011 at 11:26
Ben--- if Grantor owes 100% and sell land in warrant deed without any mention of the minerals does the minerals go with the land and grantee now own all 100% of minerals? Then this is a little different in the above example that Grantor spells out conveying 1/4 of the minerals and does not say anything above reservation but still owns 75% .

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