The courts that have addressed this issue have concluded that title passes to the grantee. See State v. Dunn, 574 S.W.2d 821, 824 (Tex. App.- Amarillo 1978, writ ref d n.r.e.) (concluding that because attempted exception of property in a deed was invalid, the property that was the subject of the attempted exemption passed to the grantee); Lewis v. Midgett, 448 S.W.2d 548, 551-52 (Tex. Civ. App.-Tyler 1969, no writ) (holding that because attempted exception of property in a deed was void the property that was the subject of the attempted exemption passed to the grantee). The Cashman Sisters have not shown that if the attempt to reserve or except the Purported Royalty was void or invalid, title to the Purported Royalty would stay with the Assignors rather than pass to Sandel Energy.
Nor do they dispute that the statute of frauds applied to the reservation of interest within the assignment at bar. See Lewis v. Midgett, 448 S.W.2d 548, 551-52 (Tex. Civ. App.—Tyler 1969, no writ) (concluding that the deed passed all of the estate owned by the grantor despite the attempted reservation since the latter failed to comply with the statute of frauds). Disagreement comes in whether one particular element of the statute was satisfied, and that element concerns the need to describe the property being conveyed or reserved.
Nor do they dispute that the statute of frauds applied to the reservation of interest within the assignment at bar. See Lewis v. Midgett, 448 S.W.2d 548, 551-52 (Tex. Civ. App.—Tyler 1969, no writ) (concluding that the deed passed all of the estate owned by the grantor despite the attempted reservation since the latter failed to comply with the statute of frauds). Disagreement comes in whether one particular element of the statute was satisfied, and that element concerns the need to describe the property being conveyed or reserved.
(Emphasis in original; citations omitted).See also Dunlap Investors Ltd. v. Hogan, 133 Ariz. 130, 650 P.2d 432 (1982); Parkinson v. Board of Assessors of Medfield, 395 Mass. 643, 481 N.E.2d 491 (1985); Royse v. Easter Seal Soc'y for Cr. Children, 256 N.W.2d 542 (N.D. 1977); Germany v. Murdock, 99 N.M. 679, 662 P.2d 1346 (1983); Lewis v. Midgett, 448 S.W.2d 548 (Tex.Civ.App. 1969). From the foregoing law and aside from the merger question, it is our conclusion that the easement sought to be created in this case in the 1983 deed to Fayette Square was insufficient as a matter of law as to its description.
A warranty deed will pass all of the estate owned by the grantor at the time of the conveyance unless there are reservations or exceptions that reduce the estate conveyed. Sharp v. Fowler, 151 Tex. 490, 493, 252 S.W.2d 153, 154 (Tex. 1952); Cockrell v. Tex. Gulf Sulphur Co., 157 Tex. 10, 15, 299 S.W.2d 672, 675 (Tex. 1956); Lewis v. Midgett, 448 S.W.2d 548, 551 (Tex.Civ.App.-Tyler 1969, no writ). See also Melton v. Davis, 443 S.W.2d 605, 608 (Tex.Civ.App.-Tyler 1969, writ ref'd n.r.e.) (Held that if appellees had intended to reserve the disputed minerals, they could have done so by apt language specifically and unequivocally expressing such intent; having failed to do so, title to the mineral estate in question passed to appellants under the deed.).
We agree that, for a clause in a deed to operate as exception, it must identify, with reasonable certainty, the property to be excepted from the larger conveyance. Fuentes, 472 S.W.2d at 293 (citing Lewis v. Midgett, 448 S.W.2d 548 (Tex.Civ.App.-Tyler 1969, no writ)). Where the subject of the conveyance is sufficiently described, but the excepted portion is not identifiable, the exception fails, rather than the grant, because the uncertainty goes to the exception only. State v. Dunn, 574 S.W.2d 821, 824 (Tex.Civ.App.-Amarillo 1978, writ ref'd n.r.e.) (citing Fuentes, 472 S.W.2d at 293).
Reference cannot be made to the corrected plat because it did not come into existence until approximately 20 years after the conveyance. See Lewis v. Midgett, 448 S.W.2d 548 (Tex.Civ.App.-Tyler 1969, no writ). Appellants have neither alleged nor suggested, either in the trial court or in this court, that their claim to title was based upon anything other than this void deed. Appellee has shown by competent summary judgment evidence, peaceful and exclusive possession of the 395 acres for over five years.
Therefore, the Buskes retained no right, title or interest in the two acre tract. See Fuentes v. Hirsch, 472 S.W.2d 288, 293 (Tex.Civ.App. El Paso 1971, writ ref'd n. r. e.); Lewis v. Midgett, 448 S.W.2d 548, 551 (Tex.Civ.App. Tyler 1969, no writ). However, in 1964 the Buskes purported to convey by deed to the State the fee for the west 130 feet of the highway right-of-way, it being a 1.161 acre tract out of the two acre tract which the Buskes had no interest in.
Therefore, the present suit must be regarded as an action for damages for breach of an executory contract, and so considered, it fails because the contract is too indefinite to be enforced. Plaintiff would apply to this contract the rule sometimes applied with respect to deeds, that if the description of the whole tract is sufficient, but there is an indefinite reservation or exception, title to the whole tract passes and only the reservation or exception fails, citing Lewis v. Midgett,448 S.W.2d 548 (Tex.Civ.App., Tyler, 1969, no writ); Fuentes v. Hirsch,472 S.W.2d 288 (Tex.Civ.App., El Paso, 1971, writ ref'd n. r. e.); and De Roach v. Clardy, 52 Tex.Civ.App. 233, 113 S.W. 22 (1908) (writ ref'd). These cases stand for the rule that after a vendor has sold land, delivered the deed, and transferred possession, he or his heirs will not be permitted to recover title to the entire property because of uncertainty of an exception for which the vendor was himself responsible.
Inasmuch as the easement before us does not furnish within itself a description to its location, nor is there any reference to outside aids to help in determining its location, the easement must fail for lack of an adequate description. Lewis v. Midgett, 448 S.W.2d 548 (Tex.Civ.App.1969, no writ); City of Port Arthur v. Badeaux, 425 S.W .2d 658 (Tex.Civ.App.1968, writ ref. n.r.e.). Judgment of the trial court is reversed, and judgment is here rendered for appellants declaring the easement void.