Co-author Travis Nadalini*
If you aren’t quite sure about the difference between trespass to try title and suit to quiet title, Lockhart as Tr. of Lockhart Fam. Bypass Tr. v. Chisos Mins., LLC explains. But first, …
Warren Lockhart died. His Will gave his residuary estate to the “Trustee(s) of the Bypass Trust created under the Lockhart Family Trust Agreement.” The residuary estate included mineral and royalty interests in Section 38 in Howard County. His widow Jean was appointed independent executor.
On the day they signed the Will, Warren and Jean executed a Restatement of the Lockhart Family Trust. Upon the death of the first die, the trust estate was to be divided into two separate trusts, one of which was the Bypass Trust. The Section 38 interests were allocated to the Bypass Trust. Upon the death of the survivor the remaining trust estate was to be divided among six beneficiaries.
Jean then executed a Distribution Deed with special warranty transferring the Section 38 interests individually and as executor of Warren’s Estate. Despite references to the mineral estate, the property description included the surface estate only. A First Correction Deed and Second Correction Deed were executed and filed of record to correct the legal description. All three deeds were effective as of October 22, 2002. Neither Correction Deed was signed by the grantees. The interests were later conveyed to Chisos Minerals and others.
Jean sued Chisos and the others for trespass to try title, rescission and cancellation of the Second Correction Deed, and to quiet title. The court denied Jean’s motion for summary judgment, granted Chisos’, quieted Title to the Section 38 interests, and ordered that Jean take nothing. The court emphasized the often-misunderstood distinction between a trespass to try title claim and an action to quiet title.
What’s the Difference?
A trespass to try title action is the method of determining title to lands. It is typically used to clear problems in the chain of title or to recover land unlawfully held from a rightful owner. In fact, Texas courts have recently interpreted this cause of action to be the exclusively remedy for resolving competing claims to ownership of real property.
An action to quiet title, on the other hand, challenges an adverse interest that impacts title and possssion only indirectly. Any claim or potential claim to ownership of property is a “cloud.” The party that owns the property can dispute the “cloud” by claiming that it is invalid or unenforceable. In such instance, the title holder can file an action to “quiet title” to remove the cloud from the title. This action relies on the invalidity of the defendant’s claim to the property. The action has the equitable effect of declaring invalid or ineffective the defendant’s claim to title.
Put simply, a trespass to try title claim is a legal procedure for challenging the ownership of property, while an action to quiet title is an equitable remedy for establishing one’s right to ownership of real property against other adverse claimants.
Action to Quiet Title:
To prevail on an action to quiet title, the plaintiff must show:
(1) an interest in a specific property;
(2) title to the property is affected by a claim by the defendant; AND
(3) the claim, although facially valid, is invalid or unenforceable.
Trespass to Try Title
To prevail on a trespass to try title claim, the plaintiff must first establish that the real property interest is the proper subject for a trespass to try title action. To do this, the plaintiff must show an actual possession of the real property; constructive possession will not suffice. Then, the plaintiff may recover by provding or proving:
(1) a regular chain of conveyances from the sovereign;
(2) a superior title out of a common source;
(3) title by limitations; OR
(4) prior possession that has not been abandoned.
The plaintiff must ultimately recover upon the strength of her own title—not the weakness of the defense.
Jean’s trespass to try title claim was not actionable because the Section 38 interest was non-possessory (But on Chisos’ motion for summary judgment, Chisos bore the burden to raise the issue).
Trespass to try title adjudicates title or the right of possession of real property. Because Chisos only asserted ownership of a nonpossessory royalty and reversionary interest, Jean’s suit was not actionable. Yet, Chisos’ take-nothing relief was only proper if it either conclusively negated Jean’s action or conclusively established an affirmative defense to that action. Chisos failed to do so, and the court precluded Chisos from raising the non-possessory argument on appeal.
Three strikes and yer out on appeal
Her swing-for-the-fences appeal argued that the deeds were not effective for other reasons: (1) She did not sign in her capacity as trustee; thus, the deeds did not convey any interest held by the trustee. (2) The deeds were merely a quitclaim. (3) The Correction Deeds made material changes to the Distribution Deed and thus failed to comply with the Texas Correction Instrument Statutes. The opinion explains why these assertiions failed.
*Travis is a rising 3L at Baylor Law School and a Gray Reed summer associate.