Opinion filed August 1, 2019

In The

Eleventh Court of Appeals 

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No. 11-18-00009-CV

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IN THE MATTER OF THE ESTATE

OF HILDA LOUISE TATUM, DECEASED

On Appeal from the County Court at Law

Erath County, Texas

Trial Court Cause No. P09416

O P I N I O N

This appeal involves a dispute among family members regarding the validity 

of a warranty deed dated December 17, 1999 (the 1999 Deed). The parties dispute 

whether certain executing grantors of the 1999 Deed conveyed their individual 

interests in the property at issue even though the 1999 Deed was not executed and 

delivered by all of the proposed grantors who owned an interest in the property being 

conveyed. Appellants (Larry Wayne Tatum, Deritha Quay Davis, Herbert Franklin

Tatum, and Betty Kathryn Culbertson) and Appellee (Vicki Lynn Truss) owned an 
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equal, undivided future interest in the property and executed the 1999 Deed. 

Appellee is also the independent executor of her mother’s estate.

In her capacity as independent executor, Appellee filed a traditional motion 

for summary judgment arguing that the 1999 Deed was valid to convey the 

individual interests of the executing grantors because they all executed and delivered 

the 1999 Deed. In response, Appellants argued that a genuine issue of material fact 

existed regarding whether they executed and delivered the 1999 Deed with the intent 

of conveying the executing grantors’ individual interests in the property without the 

signatures of all the proposed grantors. The trial court granted summary judgment 

in favor of Appellee.

In one issue on appeal, Appellants challenge the trial court’s grant of summary 

judgment. Because we conclude that a genuine issue of material fact exists regarding 

whether the enforceability of the 1999 Deed was conditioned on the execution and 

delivery of the 1999 Deed by all of the proposed grantors, we sustain Appellants’

sole issue and reverse and remand.

Background Facts

George and Hilda Tatum had ten children: Deritha Quay Davis, John Willie

Tatum, Herbert Franklin Tatum, Larry Wayne Tatum, Betty Kathryn Culbertson, 

Deborah Dorris Sauer, Georgia Ellouise Arms, Timothy Dan Tatum, Vicki Lynn

Truss, and Ricky Glenn Tatum.

On January 18, 1982, George and Hilda executed and delivered to their 

children a warranty deed concerning a 134-acre tract of land, which constituted the 

family farm (the Property). The deed reserved a life estate in the Property for George 

and Hilda and conveyed the remainder (future) interest to each of their ten children 

in equal shares. However, in 1999, John died, and his interest in the Property

transferred to his widow, Marian Meaders Tatum. At that point, the future interest 
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in the Property was held by George and Hilda’s surviving nine children and John’s 

widow, Marian (collectively, the Tatum Children).

After John’s death, Hilda approached an attorney and asked him to draft a 

deed that would convey each of the Tatum Children’s interest in the Property back 

to George and Hilda. Shortly thereafter, during a family Christmas gathering in 

December 1999, Hilda approached each of the Tatum Children with the 1999 Deed 

and asked each of them to convey their interest back to her and George. The 1999 

Deed listed all ten Tatum Children as the grantors, and it purported to convey the 

Property in fee simple back to George and Hilda; the 1999 Deed made no reference

to the undivided future interests of the grantors.

Appellants allege that they and Hilda understood that the 1999 Deed would 

not be effective unless it was signed by all of the Tatum Children. Appellants also 

allege that they signed and acknowledged the 1999 Deed based upon this belief. 

Appellee and three other Tatum Children also executed the 1999 Deed. However,

Timothy and Marian never signed the 1999 Deed. Therefore, ultimately, only eight 

of the ten Tatum Children signed the 1999 Deed.

George died in 2000. In 2001 and 2002, believing the 1999 Deed was never 

executed or delivered, Betty, Deborah, Georgia, and Ricky each executed an 

affidavit (the Affidavits) to rescind his or her signature on the 1999 Deed “due to the 

failure to obtain full legal consent from all involved parties.” Deborah, Georgia, and 

Ricky are not parties to this action.

Appellants allege that, in 2003, Hilda arranged a meeting with the Tatum 

Children to discuss the Tatum Children’s transfer of their interests in the Property. 

This time, however, Hilda requested that the Tatum Children consider transfering

their interests among themselves so that only one of them would hold the entire 

interest. At that time, Larry was the only child who expressed an interest in 

purchasing the other Tatum Children’s remainder interests.
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Deritha, Herbert, Betty, Timothy, and Marian subsequently conveyed their 

interests in the Property to Larry. Larry properly filed and recorded the conveyances 

in December 2003. Deborah, Georgia, Vicki, and Ricky also spoke with Larry about 

selling their interests, but they were unable to reach an agreement. Hilda, despite 

helping facilitate the transfers, properly filed and recorded the 1999 Deed in March

2004.

Hilda died in 2016, and her will was admitted to probate. Appellants assert 

that, in Hilda’s will, she claimed ownership to 80% of the remainder interest in the 

Property.1 The trial court appointed Appellee as executor of the estate.

As executor of the estate, Appellee filed suit for declaratory judgment asking 

the trial court to declare that the 1999 Deed transferred 80% of the remainder 

interests in the Property to George and Hilda and to declare that the Affidavits were 

ineffective rescissions of each affiant’s signature on the 1999 Deed. In response, 

Appellants filed a joint answer and counterclaim, seeking declaratory judgment as 

to the validity and enforceability of the 1999 Deed and Affidavits. According to 

Appellants, because the “1999 Deed was never fully executed and delivered,” it 

“failed to become effective or convey any interest in the property addressed therein.”

Appellee later filed a motion for summary judgment asking the trial court to 

declare the 1999 Deed effective as a conveyance of the interest of the eight Tatum 

Children who executed the 1999 Deed. The trial court granted Appellee’s motion 

for summary judgment and entered a Final Judgment finding that the 1999 Deed was 

not ambiguous and was “valid, effective, and enforceable against the eight grantors 

who signed” the 1999 Deed. This appeal followed.

 

1Hilda’s will is not in the appellate record.
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Analysis

In Appellants’ sole issue, they contend that the trial court erred when it granted

Appellee’s motion for summary judgment. Specifically, Appellants argue, among 

other things, that a genuine issue of material fact exists as to whether the 1999 Deed 

was executed and delivered by the executing grantors with the intent of conveying 

their individual, fractional interests in the Property without all of the Tatum Children 

signing and conveying their interests as well. Appellants argue that, based on their 

discussions with Hilda, they understood that the 1999 Deed would convey their 

individual interests in the Property only if all the Tatum Children executed the 1999 

Deed. Because not all of the Tatum Children executed the 1999 Deed, Appellants 

argue that the 1999 Deed did not convey their interests despite them having signed 

the 1999 Deed.

We review a trial court’s summary judgment de novo. See First United 

Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). A 

party moving for traditional summary judgment bears the burden of proving that 

there is no genuine issue of material fact as to at least one essential element of the 

cause of action being asserted and that it is entitled to judgment as a matter of law.

TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257 

(Tex. 2017). If the movant initially establishes a right to summary judgment on the 

issues expressly presented in the motion, then the burden shifts to the nonmovant to 

present to the trial court any issues or evidence that would preclude summary 

judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–

79 (Tex. 1979). When reviewing a summary judgment, we take as true all evidence 

favorable to the nonmovant, and we indulge every reasonable inference and resolve 

any doubts in the nonmovant’s favor. Provident Life & Accident Ins. Co. v. Knott, 

128 S.W.3d 211, 215 (Tex. 2003).
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In the present case, Appellants essentially contend that the trial court 

improperly granted summary judgment in favor of Appellee because there was a 

genuine issue of material fact as to whether the enforceability of the 1999 Deed was 

conditioned upon the execution and delivery of the 1999 Deed by all of the proposed 

grantors. Appellee asserts that the parol evidence rule precludes our consideration 

of extrinsic evidence in support of this contention. We disagree with Appellee.

“It is well settled that a written instrument may not be varied by evidence of 

an oral agreement that contravenes its terms.” Litton v. Hanley, 823 S.W.2d 428, 

430 (Tex. App.—Houston [1st Dist.] 1992, no writ). This is known as the parol 

evidence rule. See id. However, parol evidence is admissible to show that an 

agreement was not to become effective except upon certain conditions or 

contingencies. Baker v. Baker, 183 S.W.2d 724, 728 (Tex. 1944). Under this 

exception to the parol evidence rule, extrinsic evidence is admissible to establish an 

oral condition precedent if it is not inconsistent with the terms of the written 

agreement. See DeClaire v. G & B McIntosh Family Ltd. P’ship, 260 S.W.3d 34, 

45–46 (Tex. App.—Houston [1st Dist.] 2008, no pet.). A condition precedent is a 

condition “to be performed before the agreement becomes effective, and which calls 

for the happening of some event or the performance of some act after the terms of 

the contract have been agreed on, before the contract shall be binding on the parties.” 

Rincones v. Windberg, 705 S.W.2d 846, 848 (Tex. App.—Austin 1986, no writ)

(quoting BLACK’S LAW DICTIONARY (4th ed.) at 366).

Here, Appellants presented summary judgment evidence which showed that

the parties orally agreed on a condition precedent to the enforcement of the 1999 

Deed—the condition precedent being the execution and delivery of the 1999 Deed 

by all of the Tatum Children. Specifically, Appellants produced personal affidavits 

in which they explained the events surrounding their signing of the 1999 Deed.
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In Larry’s affidavit, he stated that Hilda presented the 1999 Deed to him at the 

family Christmas party and asked him to sign it. Larry explained that he “told her 

that [he] would not sign to give [his] 1/10th back unless all of [his] siblings would 

do so.” Larry stated that, in response, “[Hilda] assured [him] that she would not and 

could not do anything unless she got all ten [Tatum Children] to agree and sign.”

Betty also stated in her affidavit the circumstances surrounding her signing of 

the 1999 Deed. Betty stated that Hilda wanted Betty “to sign [her] 1/10 of the farm 

back over to [Hilda and George].” Betty stated that she was reluctant at first, but,

“after [Hilda] assured [her] that the deed would not become valid unless all ten 

signatures were obtained, [she] signed.”

Similarly, Herbert stated that Hilda wanted him to “deed the farm back over 

to her and [George].” Herbert explained that Hilda informed him that all of the 

Tatum Children needed to sign the 1999 Deed for it to be effective. Herbert stated 

that, given this understanding, he “signed the document, thinking that this is what 

the family wanted.” However, because Marian and Timothy did not sign, Herbert 

thought that the 1999 Deed was rendered “null and void, as [Hilda] had previously 

indicated,” and that “each sibling [owned a] 1/10 share.”

Finally, Deritha stated that, although she also signed the 1999 Deed, she 

“understood that [the 1999 Deed] was invalid because all 10 [grantors] did not sign.”

Moreover, the condition precedent that all the Tatum Children must have 

signed the 1999 Deed for the 1999 Deed to be effective is not inconsistent with the 

terms of the 1999 Deed. The 1999 Deed is silent as to its legal effect when not all 

of the proposed grantors execute and deliver the 1999 Deed. Importantly, no 

provision in the 1999 Deed states that the 1999 Deed is operative to convey the 

individual interest of an executing grantor regardless of whether all of the proposed 

grantors execute the 1999 Deed. In fact, the 1999 Deed makes no reference to the 

individual interests of the proposed grantors. Rather, the Property being conveyed 
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is described in terms of a full fee simple interest in the family farm. Because each 

proposed grantor equally owned a one-tenth future interest in the Property, the only 

way for the grantees to hold a full fee simple interest in the Property as a result of 

the 1999 Deed is if all of the proposed grantors executed and delivered the 1999 

Deed. As a result, we conclude that the oral condition precedent contemplated by 

the parties does not contravene the terms of the 1999 Deed.

In light of Appellants’ affidavits, and because evidence of the parties’ oral 

condition precedent is not inconsistent with the terms of the 1999 Deed, we conclude 

that Appellants produced sufficient evidence to raise a genuine issue of material fact 

regarding whether the parties intended the enforceability of the 1999 Deed to be 

conditioned upon the execution of the 1999 Deed by all of the Tatum Children. See 

generally Castroville Airport, Inc. v. City of Castroville, 974 S.W.2d 207 (Tex.

App.—San Antonio 1998, no pet.) (reversing summary judgment on similar 

grounds). Therefore, summary judgment should not have been granted in favor of 

Appellee.

Appellee maintains, however, that, although all of the Tatum Children did not 

sign the 1999 Deed, Appellants nonetheless conveyed their interests in the Property 

because they did sign the 1999 Deed. To support her argument, Appellee cites to 

Hays v. Marble, 213 S.W.2d 329, 335 (Tex. Civ. App.—Amarillo 1948, writ 

dism’d). In Hays, the Amarillo Court of Civil Appeals examined the validity of a 

contract and accompanying deed that was signed by some, but not all, of the tenants 

in common of a piece of property. Hays, 213 S.W.2d at 334–35. In holding that 

those who signed the deed were bound by its provisions, the appellate court

reasoned:

Each of several tenants in common is entitled to sell his interest without

regard to whether the others wish to do so or not and those signing a 

contract . . . are legally bound by its terms though some of them might 
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refuse to join therein or, by reason of other circumstances, specific 

performance against them cannot be decreed.

Id. at 335.

We note, however, that the appellate court also provided an exception to this 

general rule:

[W]here the contract provides, or the parties have an agreement and 

understanding, that the contract is not to be complete unless all of the 

sellers execute it, such a provision is valid and the contract cannot be 

enforced unless all of the sellers sign it.

Id. The appellate court specifically noted that such a provision or agreement was 

absent in the contract and that there was no testimony or evidence that any such 

agreement existed either among the tenants who signed the deed or between them 

and the grantee. Id.

Unlike in Hays, here, the summary judgment evidence showed that Appellants 

and Hilda did have an agreement and understanding that the 1999 Deed would not 

be effective unless and until it was signed by all of the Tatum Children. Thus, 

although Appellants signed the 1999 Deed, a genuine issue of material fact remains 

regarding the enforceability of the 1999 Deed.

Additionally, Appellee argues that, because the 1999 Deed is unambiguous, 

extrinsic evidence, such as Appellants’ personal affidavits, cannot be considered to 

raise a fact issue regarding intent. We disagree. As discussed above, extrinsic 

evidence is admissible to establish an oral condition precedent. See Baker, 183 

S.W.2d at 728; DeClaire, 260 S.W.3d at 45–46.

When we consider Appellants’ summary judgment evidence, we conclude 

that a genuine issue of material fact exists regarding whether the parties intended the 

enforceability of the 1999 Deed to be conditioned upon the execution of the 1999 

Deed by all of the Tatum Children. Thus, we conclude that the trial court erred in 

concluding that, as a matter of law, the 1999 Deed was valid, effective, and 
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enforceable to convey Appellants’ interests when not all of the Tatum Children 

executed and delivered the 1999 Deed. Accordingly, we sustain Appellants’ sole 

issue on appeal.

This Court’s Ruling

We reverse the trial court’s judgment and remand for further proceedings 

consistent with this opinion.

KEITH STRETCHER

JUSTICE

August 1, 2019

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.

 

2

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.