Gift Deed or Warranty Deed? Words Have Consequences

In her first issue, Jenschke challenges the trial court’s order granting the partial summary judgment. Although Jenschke phrases her issue as a challenge to the trial court’s conclusion that her claim was barred by limitations, Jenschke’s brief also challenges the trial court’s conclusion that “the unambiguous language of the Deeds provides for cash consideration.” Because we conclude the trial court properly interpreted the royalty deeds, we do not address whether limitations barred Jenschke’s claim. See Tex. R. App. P. 47.1 (noting opinions need only address issues necessary to the final disposition of the appeal).

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“The construction of an unambiguous deed is a question of law for the court,” Wenske v. Ealy, 521 S.W.3d 791, 794 (Tex. 2017), which we review de novo, Kardell v. Acker, 492 S.W.3d 837, 842 (Tex. App.–San Antonio 2016, no pet.). In this case, neither party contends the royalty deeds are ambiguous, and we agree the deeds are unambiguous.

“When construing an unambiguous deed, our primary duty is to ascertain the intent of the parties from all of the language within the four corners of the deed.” Wenske, 521 S.W.3d at 794; accord Kardell, 492 S.W.3d at 842. The Texas Supreme Court has recently instructed that if a court can ascertain the parties’ intent from the language of the deed, “that should [generally] be the end of our analysis.” Wenske, 521 S.W.3d at 794.

In her brief, Jenschke acknowledges the general rule that parol evidence is not admissible to contradict the terms of a deed; however, Jenschke cites several cases to support her argument that an exception to the rule allows parol evidence to be admitted to rebut recitals of consideration in a deed. See, e.g., Carrico v. Kondos, 111 S.W.3d 582 (Tex. App.–Fort Worth 2003, pet. denied); Keel v. Hoggard, 590 S.W.2d 939 (Tex. Civ. App.–Waco 1979, no writ); Bentley v. Andrewartha, 565 S.W.2d 590 (Tex. Civ. App.–Austin 1978, no writ); Latham v. Dement, 409 S.W.2d 429 (Tex. Civ. App.–Dallas 1966, writ ref’d n.r.e.); Puckett v. Frizzell, 377 S.W.2d 715 (Tex. Civ. App.–Tyler 1964, no writ); Cochell v. Cawthon, 110 S.W.2d 636 (Tex. Civ. App.–Amarillo 1937, writ dism’d). Jenschke then relies on those cases to assert Joseph’s affidavit was admissible to contradict the recitals of consideration in the royalty deeds and therefore raised a genuine issue of material fact as to whether the royalty deeds were conveyances for cash consideration or gift deeds.

*3 Although the cases Jenschke cites hold parol evidence is admissible in the context of those cases, the holdings in those cases cannot be divorced from their facts. None of the cited cases hold parol evidence is admissible to prove that a deed reciting consideration is actually a gift deed. See, e.g., Carrico, 111 S.W.3d at 586–87 (holding parol evidence admissible to prove the affirmative defense of failure of consideration in a breach of contract case); Keel, 590 S.W.2d at 944 (holding parol evidence admissible to prove recited consideration had not been paid in action to collect unpaid balance due on a vendor’s lien note); Bentley, 565 S.W.2d at 592 (holding parol evidence admissible to prove true consideration to be paid where deed recited ten dollars and other valuable consideration); Latham, 409 S.W.3d at 433 (same); Puckett, 377 S.W.2d at 722 (holding parol evidence admissible to prove total consideration owed for a conveyance); Cochell, 110 S.W.2d at 638 (holding parol evidence admissible to prove recited consideration was not paid). However, the admissibility of parol evidence in the context presented in the instant case has been addressed by one of our sister courts.

In Johnson v. Driver, Lillian Edge executed a deed conveying property to Tommye Stringfield. 198 S.W.3d 359, 361 (Tex. App.–Tyler 2006, no pet.). Several years later, Russell Driver, as trustee of the Billie Holcomb Living Trust, filed a lawsuit and sought a summary judgment declaring that the deed’s recital of consideration proved the conveyance was a sale and the property, therefore, was part of the community estate of Tommye and her husband Leon. Id. Because the property was community property, Driver asserted Leon’s undivided one-half interest in the property passed to Billie Holcomb when Leon subsequently died intestate. Id. Holcomb was Leon’s daughter from a prior marriage and Leon’s only child. Id. Upon Holcomb’s death, Driver asserted the property passed to her trust. Id.

Daniel N. Johnson, independent executor of Tommye’s estate, asserted the conveyance was a gift despite the recitals in the deed to the contrary. Id. In response to Driver’s summary judgment motion, Johnson attached three affidavits wherein the affiants stated the conveyance was a gift. Id. at 361–62. The trial court granted summary judgment in favor of Driver. Id. at 361.

On appeal, the Tyler court rejected Johnson’s argument that his affidavits created a fact issue as to whether the transaction was a gift. Id. at 363–64. The Tyler court noted the general rule that parol evidence is not admissible to vary the terms of an unambiguous deed or to contradict the legal effect of an unambiguous written instrument. Id. at 363. The Tyler court then concluded the affidavits proffered by Johnson were not admissible to contradict the consideration recited in the deeds, holding “the parol evidence rule prevented the trial judge from giving [the affidavits] any legal effect.” Id. at 363–64; see also Massey v. Massey, 807 S.W.2d 391, 405 (Tex. App.–Houston [1st Dist.] 1991, writ denied) (holding unambiguous deeds reciting consideration proved conveyances were bargained-for-exchanges and parol evidence was inadmissible to establish the transactions were actually intended to be gifts).

We agree with the Tyler court that parol evidence is not admissible to contradict the recital of consideration in a deed when a party is seeking to establish a deed reciting consideration is a gift deed. See Johnson, 198 S.W.3d at 363–64; see also Cochell, 110 S.W.2d at 638 (“[A]n entire want of consideration cannot be shown to contradict the recital of payment of a consideration for the purpose of defeating the effective words of a deed or other legal instrument ….”). Therefore, we conclude Joseph’s affidavit was not admissible in this case to contradict the unambiguous recitals of consideration in the royalty deeds. See Johnson, 198 S.W.3d at 363–64. The trial court properly concluded “the unambiguous language of the Deeds provides for cash consideration.” Jenschke’s first issue is overruled.