NO. 12-11-00008-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

GUY C. FISHER, JOE FISHER, JR., § APPEAL FROM THE 273RD

ANNE WINSLOW, ROBERT DIES,

JOHN FISHER AND

KATHLEEN MUNGER,

APPELLANTS

V.

LEILA CLARK DOWNS WYNN, MARIE 

CLARK CRAWFORD, EXA BELLE 

CLARK MCDANIEL, HELEN BUTTS 

TIPPS, SUE BUTTS MCEACHERN,

CATHERINE CREWS DEL VECCIO, § JUDICIAL DISTRICT COURT 

JANET CREWS BARROW,

MARGARET JOE SEWELL LANGLEY,

ELINOR CREWS, TRUSTEE, SUSAN 

FRY BRACKEN, ROBERT A. FRY, JR.,

SIM CREWS FRY, ANNE CROW

CROCKETT, JACQUELINE CROW 

RUTTER, JAMES WILBURN 

RAGSDALE, ROBERT E. SMITH,

MOLLY PATRICIA MCKINNEY, 

POLLY A. WRIGHT AND RICHARD 

WATKINS,

APPELLEES § SAN AUGUSTINE, TEXAS

MEMORANDUM OPINION

This is a suit for declaratory judgment regarding construction of a warranty deed. The 

trial court granted Appellees’ motion for summary judgment and denied Appellants’ motion for 

summary judgment. Appellants urge one issue on appeal contending the trial court erred in 

granting Appellees’ motion and in denying Appellants’ motion. We affirm.
BACKGROUND

Robert Cade Downs, Jr., owned an undivided one-half interest in the surface and minerals 

in 1316.2 acres located in the Burditt, Bruce, Hereford, Sublett, and Williams Surveys in San 

Augustine County. The other undivided one-half interest in the 1316.2 acres belonged to James 

Cade Downs and five other residuary legatees under the will of their father, Robert Cade Downs, 

Sr.

The Partition

On June 15, 1977, the owners executed a partition agreement and deed dividing only the 

surface estate of the 1316.2 acres. In the division, Robert Cade Downs received a separate 

interest in the surface of five tracts totaling 657 acres in the Bruce, Hereford, Sublett, and 

Williams Surveys. James Cade Downs and the five other residuary legatees of Robert Cade 

Downs, Sr. received undivided interests in the surface of the remaining 659.2 acres situated in 

seven tracts in the Burditt Survey. The mineral estate in the 1316.2 acres was expressly left 

undivided.

Under the partition deed, James Cade Downs received an undivided one-fifth interest in 

the surface of the 659.2 acres in the Burditt Survey. Because the minerals were not partitioned, 

he owned an undivided one-tenth interest in the minerals under the entire 1316.2 acres located in 

five surveys.

The 1979 Warranty Deed

In 1979, James Cade Downs signed and delivered a warranty deed to his cousin Kathleen 

Clark Fisher, another legatee of Robert Cade Downs Sr. The granting clause (first paragraph) 

reads, in part, as follows:

. . . I, James Cade Downs, . . . do grant, sell and convey unto the said Kathleen Clark Fisher . . . 

my undivided one-fifth (1/5th) interest in and to all those certain tracts . . . of land, situated in San 

Augustine County, Texas, out of and a part of the JESSE BURDITT SURVEY . . . [legal 

description and reference to attached Exhibit A follow].

The “subject to” clause (second paragraph) contains two sentences qualifying or elaborating on 

the grant by reference to the partition deed. It also contains the “said minerals” phrase in 

controversy here, and reads as follows:
This conveyance is subject to the mineral reservations and exceptions made in the partition deed 

between Robert Cade Downs, Jr., et al., dated June 15, 1977 . . . , HOWEVER, out of this grant 

there is saved, excepted and reserved, one-half of my undivided interest in the oil, gas and other 

minerals in, to and that may be produced from the said lands for and during my natural life. . . . It 

is understood that in said partition deed so mentioned herein the surface estate was divided and the 

minerals were left undivided, and by this instrument I am conveying my undivided interest in said 

minerals unto the grantee herein . . . , subject to the above reserved life estate. . . .

(emphasis added). The habendum and warranty clause (third paragraph) contains no specific 

reference either to the grant in the first paragraph or to the “said lands” but refers to the premises

that are “above described” and again to “the said premises.” It reads in part:

TO HAVE AND TO HOLD the above described premises, except as above stated, together with 

all and singular the rights and appurtenances thereto in anywise belonging unto the said Kathleen 

Clark Fisher . . . , and I do hereby bind myself . . . to warrant and forever defend . . . the said 

premises unto the said Kathleen Clark Fisher . . . against every person whomsoever lawfully 

claiming or to claim the same or any part thereof.

Procedural History

Appellants filed suit seeking a declaratory judgment that, based on its reference to the 

partition deed in the “subject to” clause, the warranty deed from James Cade Downs to Kathleen 

Clark Fisher conveyed all of James Cade Downs’s undivided mineral interest that he received in 

the partition of the 1316.2 acres and not just his undivided interest in the surface and minerals in 

the Burditt Survey tract.

Appellees filed answers to Appellants’ petition. Appellees Marie Clark Crawford and 

Exa Belle Clark McDaniel also filed a counterpetition seeking a declaratory judgment that the 

deed unambiguously conveyed James Cade Downs’s interest in the Burditt Survey only. 

Alternatively, they alleged that if the reference to “said minerals” in the “subject to” or limiting 

clause rendered the warranty deed ambiguous, extrinsic evidence consisting of letters and 

inventories should be admitted to aid in the deed’s construction. Extrinsic evidence, they

contended, would show that, after the execution of the deed, Joe J. Fisher, husband of and agent 

for Kathleen Clark Fisher, attempted to buy James Cade Downs’s mineral interest in the four 

other surveys, the same interest Appellants now claim they own.

Appellants moved for summary judgment on the ground that they are the owners of 

James Cade Downs’s mineral interest in all of the tracts covered by the partition deed. Appellees 

Marie Clark Crawford and Exa Belle Clark McDaniel filed their motion for summary judgment 

requesting a declaration that the warranty deed conveyed James Cade Downs’s mineral interest 
in the Burditt Survey tract only. Appellees Anne Crow Crockett and Jacqueline Crow Rutter 

joined in this motion, as did Appellees Richard F. Watkins, Helen Butts Tipps, Sue Butts 

McEachern, James Wilburn Ragsdale, Robert E. Smith, Molly Patricia McKinney, and Polly A. 

Wright (the Watkins Appellees). All of the movants maintained the warranty deed was 

unambiguous. The Watkins Appellees, in their response to Appellants’ motion, alternatively 

alleged that the warranty deed was ambiguous. They also submitted letters and an inventory of 

James Cade Downs’s mineral interests made after the execution of the warranty deed showing 

that Kathleen Clark Fisher, through her husband, attempted to buy James Cade Downs’s

undivided mineral interest in the four other surveys. Therefore, they argue, a fact question 

existed and summary judgment for Appellants was improper.

The trial court found the warranty deed to be unambiguous and declared that it conveyed 

only James Cade Downs’s interest in the Jesse Burditt Survey.

SUMMARY JUDGMENT

In their sole issue, Appellants argue that the trial court erred in denying their summary 

judgment motion and granting Appellees’ summary judgment motion. The resolution of this 

issue turns on whether the warranty deed dated May 24, 1979, from James Cade Downs to 

Kathleen Clark Fisher conveyed only the grantor’s undivided interest in the surface and minerals 

in 659.2 acres in the Jesse Burditt Survey in San Augustine County described in the deed’s

granting clause and particularly described in Exhibit “A” attached thereto. Appellants contend

that the “subject to” clause of the deed effected a conveyance of all of James Cade Downs’s

mineral interest in four other surveys by reference to the partition deed between James Cade 

Downs and others who were the joint owners of 1316.2 acres situated in five surveys of San 

Augustine County. Appellants interpret the phrase “said minerals” in the “subject to” clause to 

refer to all of James Cade Downs’s undivided interest in the other minerals set out and left 

undivided in the partition deed (Burditt, Bruce, Hereford, Sublett, and Williams Surveys), and 

not simply to the minerals in the Burditt Survey described in the granting clause as Exhibit “A.” 

Other than the reference to “said minerals,” the warranty deed contains no description of the 

minerals Appellants claim were conveyed in the warranty deed from James Cade Downs to their 

predecessor in title, Kathleen Clark Fisher.
Standard of Review

A trial court’s decision granting summary judgment is reviewed de novo. Provident Life 

& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The trial court may grant a 

traditional motion for summary judgment if the movant establishes that there is no genuine issue 

of material fact and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. 

Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When, as here, both sides move for 

summary judgment on the same issue and the trial court grants one motion and denies the other, 

we review the summary judgment evidence presented by both sides and determine all questions 

presented. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). If we 

determine that the trial court erred, we render the judgment the trial court should have rendered. 

Id. 

When an instrument is unambiguous and the dispositive facts are not in dispute, a court 

may grant summary judgment and render a declaratory judgment regarding the parties’ rights 

under the instrument. See Barrand, Inc. v. Whataburger, Inc., 214 S.W.3d 122, 131-32 (Tex. 

App.–Corpus Christi 2006, pet. denied); TC Dallas #1, LP v. Republic Underwriters Ins. Co., 

316 S.W.3d 832, 837 (Tex. App.–Dallas 2010, no pet.).

Applicable Law

The question of whether an instrument is ambiguous is a question of law. Heritage Res., 

Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). “If the written instrument is so worded 

that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous 

and the court will construe the contract as a matter of law.” SAS Inst., Inc. v. Breitenfeld, 167 

S.W.3d 840, 841 (Tex. 2005). An ambiguity does not arise simply because the parties advance 

conflicting interpretations of the contract. Columbia Gas Trans. Corp. v. New Ulm Gas, 940 

SW.2d 587, 589 (Tex. 1996). If the contract is subject to two or more reasonable interpretations 

after applying the pertinent rules of construction, the contract is ambiguous. Id. But if after we 

apply the relevant rules of construction, a contract can be given a definite legal meaning, the 

contract is unambiguous, and we construe it as a matter of law. Frost Nat’l Bank v. L & F 

Distributors, Ltd., 165 S.W.3d 310, 312 (Tex. 2005).

The first rule of construction is to ascertain and give effect to the parties’ intentions as 

expressed in the document. Id. at 311-12. “The intention is to be ascertained as expressed by 

the language used, and not the intention which may have existed in the [makers’] minds . . . , but 
is not expressed by their language.” Slavens v. James, 229 S.W.317, 318 (Tex. Comm’n App. 

1921, judgm’t adopted). In construing a deed to ascertain the parties’ intention, the whole 

instrument must be looked to and all of its parts and all of its language given effect if possible. 

Holloway’s Unknown Heirs v. Whatley, 133 Tex. 608, 614, 131 S.W.2d 89, 92 (1939). “The 

parties to an instrument intend every clause to have some effect and in some measure to evidence 

their agreement. Even if different parts of the deed appear contradictory or inconsistent, the 

court must strive to harmonize all of the parts, construing the instrument to give effect to all its 

provisions.” Luckel v. White, 819 S.W.2d 459, 462 (Tex. 1991) (citations omitted). “The court 

should not strike down any part of the deed, unless there is an irreconcilable conflict wherein one 

part of the instrument destroys in effect another part thereof.” Id. 

No single provision should be given controlling effect. J. M. Davidson, Inc. v. Webster, 

128 S.W.3d 223, 229 (Tex. 2003). However, the effort to harmonize all parts of an instrument 

does not require that every part of the deed be treated as of equal weight in the solution of every 

question. Fleming v. Ashcroft, 142 Tex. 41, 49, 175 S.W.2d 401, 406 (1943). Labels given the 

clauses of “granting,” “warranty,” “habendum” and “future lease” are not controlling, and the 

substance of unambiguous provisions should be given effect.” Luckel, 819 S.W.2d at 463. “The 

relative positions of the different parts of the instrument are not necessarily controlling; the 

modern and sounder [view] being to ignore the technical distinctions between the various parts 

of the deed, and to seek the grantor’s intention from them all without undue preference to any 

. . . .” Reynolds v. McMan Oil & Gas Co., 11 S.W.2d 778, 781 (Tex. Comm’n App. 1928, 

holding approved).

Clauses that grant different interests in property do not create irreconcilable conflicts. 

Benge v. Scharbauer, 152 Tex. 447, 451-56, 259 S.W.2d 166, 168-70 (Tex. 1953). The 

intention of the parties, when ascertained, prevails over arbitrary rules. Luckel, 819 S.W.2d at 

462.

Discussion

Appellants claim the warranty deed makes two grants, a grant of James Cade Downs’s 

interest in the lands and minerals in Jesse Burditt Survey (subject to a life estate reserved in an 

undivided one-half of his minerals conveyed in the Jesse Burditt Survey), but also an entirely 

separate grant in the “subject to” clause of all his undivided interest in the minerals (with no 

reservation of a life estate) in the other four surveys left undivided in the partition deed. They 
insist that the term “said minerals” in the second sentence of the “subject to” clause refers to and 

conveys all of Downs’s undivided mineral interest in the other four surveys mentioned in the 

partition deed. Appellants invoke the doctrine of “last antecedent,” a rule of grammar that a 

qualifying phrase “must be confined to the words and phrases immediately preceding it to which 

it may, without impairing the meaning of the sentence, be applied.” Spradlin v. Jim Walter 

Homes, 34 S.W.3d 578, 581 (Tex. 2000). Under this doctrine, they argue that “said minerals” 

must refer to the use of “minerals” immediately preceding it–the minerals mentioned in the 

partition deed.

Appellants argue that the purported second grant of all the minerals mentioned in the 

partition deed is equally effective, although it is not in the granting clause but in the “subject to”

clause. They stress that a conveyance may occur in any of a number of clauses in a deed, and 

that, since Luckel, the granting clause is not necessarily controlling, and unambiguous provisions 

must be give effect. Luckel, 819 S.W.2d at 463. Appellants point out that clauses which grant 

separate interests in property do not create irreconcilable conflicts. Benge, 152 Tex. at 451-56, 

259 S.W.2d at 168-70. They assert that the claimed subsequent grant of all the minerals in the 

other four sections does not conflict with or negate the initial grant of the Jesse Burditt land and 

minerals described at length in the granting clause. Appellants contend that, in failing to give 

effect to the second sentence of the “subject to” clause as a conveyance, the trial court ignored a 

cardinal canon of construction –that each and every provision of a deed must be given effect.

Finally, Appellants invoke two subsidiary canons of construction: (1) that a deed’s 

language should be construed against the grantor, and (2) deeds should be read to convey the 

greatest estate possible to the grantee. See Waters v. Ellis, 158 Tex. 342, 346, 312 S.W.2d 231, 

234 (1958); Davis v. Andrews, 361 S.W.2d 419, 423 (Tex. Civ. App.–Dallas 1962, writ ref’d 

n.r.e.).

Both sides contend the warranty deed is unambiguous. Appellees, however, alternatively 

maintain that the warranty deed is ambiguous and the court should resort to extrinsic evidence in 

construing the instrument. Appellees point to correspondence in the record that they say shows 

that, after the execution of the warranty deed from James Cade Downs to Kathleen Clark Fisher, 

Appellants’ precedessor, Kathleen Clark Fisher, through her husband, negotiated to purchase 

from James Cade Downs his minerals in the other four surveys, minerals Appellants now claim 

had already been conveyed to her in the warranty deed.
We conclude, after an inquiry limited to its four corners, that the warranty deed is so 

worded that it can be given a definite legal meaning and hence, is not ambiguous. Therefore, we 

will construe the deed as a matter of law and without recourse to extrinsic evidence.

We are required to consider the entire instrument in order to ascertain the intention of the 

parties as expressed in the language of the document. Frost, 165 S.W.3d at 311-12. It is our 

duty, in construing the instrument, to strive to harmonize all of its parts in order to give each part 

effect consistent with the meaning intended by the parties. Luckel, 819 S.W.2d at 462.

Although not necessarily controlling, it is difficult to overlook that the lands in the Jesse 

Burditt Survey are the only lands specifically described in the warranty deed. They are described 

with great particularity in the granting clause as Exhibit “A.” The warranty deed nowhere 

contains such a description of any of James Cade Downs’s undivided interest in the minerals 

within the other four surveys mentioned in the partition deed, the mineral interests Appellants 

now contend Downs conveyed by the deed.

Appellants’ claim to all of James Cade Downs’s undivided interest in all of the other 

minerals set aside to him in the partition rests solely on their interpretation of “said minerals” in 

the second sentence of the “subject to” clause. Their interpretation depends upon a rigid 

application of the doctrine of “last antecedent.” But the rule is not meant to be so strictly 

applied. In Spradlin, the case cited by Appellants for the doctrine, the court acknowledged that 

the doctrine of “last antecedent” was “neither inflexible nor controlling.” Spradlin, 34 S.W.3d at 

580. In the case cited for the doctrine in Spradlin, the supreme court rejected the application of 

the doctrine, cautioning that “[i]t should not be applied without regard to the language read as a 

whole.” See City of Corsicana v. Willman, 147 Tex. 377, 379, 216 S.W.2d 175, 176 (1949). “It 

is not applicable when a further extension is clearly required by the intent and meaning of the 

context.” Id. Read in context and in conjunction with the entire instrument, we believe that the 

phrase “said minerals” is an ordinary abbreviated reference to the minerals laboriously described 

in the granting clause. The sentence containing the phrase “said minerals” has an ordinary 

explanatory and limiting purpose, functions appropriate to a “subject to” clause. It clarifies that 

the partition deed addressed the surface only and that therefore Downs owned only an undivided 

one-tenth interest in the Burditt Survey minerals. This construction does not ignore that part of 

the deed containing the phrase “said minerals,” but gives it the clarifying and limiting purpose 

the parties intended. Reading “said minerals” to refer to the minerals in the Burditt Survey, 
described at length in the granting clause, gives the phrase a meaning consistent with and in 

harmony with the entirety of the warranty deed.

The two canons of construction relied upon by Appellants, the greatest estate canon and 

the construe against the grantee canon, are inapplicable in this case. Both are subordinate to the 

rule that every part of the deed should be harmonized and given effect to effectuate the intent of 

the parties. See, e.g., Hancock v. Butler, 21 Tex. 804, 816 (1858); Arnold v. Ashbel Smith

Land Co., 307 S.W.2d 818, 824 (Tex. Civ. App.–Houston 1957, writ ref’d n.r.e.). They should 

only be employed if, after harmonization has been attempted, the language remains in doubt. 

Arnold, 307 S.W.2d at 824. In this case, harmonization of all the parts of the instrument resolves 

any reasonable doubt as to the meaning intended by the parties; therefore, neither canon is 

applicable.

We conclude the trial court correctly found that the warranty deed from James Cade 

Downs to Kathleen Clark Fisher conveyed only the land and minerals in the Jesse Burditt 

Survey. The trial court did not err in denying Appellants’ summary judgment motion and 

granting Appellees’ summary judgment motion.

We overrule Appellants’ sole issue.

DISPOSITION

The trial court’s judgment is affirmed.

BILL BASS

 Justice

Opinion delivered August 3, 2011.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals

sitting by assignment.

(PUBLISH)