                       In The
                 Court of Appeals
   Sixth Appellate District of Texas at Texarkana


                     No. 06-19-00054-CV



                 LELAND HOUSE, Appellant

                              V.

DAVID WEBB, INDIVIDUALLY AND AS INDEPENDENT EXECUTOR
       OF THE ESTATE OF DIANNE HOUSE, DECEASED,
               AND DUNCAN WEBB, Appellees



            On Appeal from the County Court at Law
                 Nacogdoches County, Texas
                 Trial Court No. CV1713898




         Before Morriss, C.J., Burgess and Stevens, JJ.
         Memorandum Opinion by Chief Justice Morriss
                                      MEMORANDUM OPINION
         During her marriage to Leland House and before predeceasing him, Dianne House received

a conveyance of over 874 acres from Elizabeth Spradley Bauman, her aunt. The question before

us now, after Dianne’s death, is whether the conveyance to her was a gift or a sale. If it was a sale,

the land became community property, and Leland has an interest as Dianne’s surviving husband.

If a gift, as found by a Nacogdoches County 1 jury, the property became Dianne’s separate property,

and Leland has no claim.

         After Dianne’s death, Leland pursued his claim that the property was community property

by suing Dianne’s son, David Webb, individually and as independent executor of the estate of

Dianne House, deceased, and Duncan Webb (collectively the Webbs) to quiet title to the property.

The Webbs asserted a counterclaim to quiet title and argued that the deed, made in consideration

of Bauman’s “love and affection” for Dianne, was a gift. After a Nacogdoches County jury found

that, by clear and convincing evidence, the property had been a gift to Dianne, the trial court

quieted title in David Webb, as trustee of the Dianne House Testamentary Trust.

         On appeal, Leland argues that the trial court erred in failing to construe the unambiguous

deed as a sale and, as a result, erred in allowing parole evidence in support of the Webbs’ position

that the conveyance was a gift. 2 Alternatively, Leland argues that the deed was ambiguous and


1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the Twelfth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
 The Webbs introduced testimony from Bauman’s attorney that the deed was executed because Bauman’s estate was
large and they “were trying to figure out a way that would allow gifts or whatever was necessary to reduce her estate.”
The attorney also testified that, while there were discussions that the conveyance was a gift to Dianne, there were no
discussions about a sale or about including Leland on the deed.

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that the jury’s verdict was not supported by sufficient evidence. Because we find the deed to be

an unambiguous gift, we affirm.

       “In general, characterization of property is determined by the time and circumstances of its

acquisition, often referred to as the ‘inception of title’ doctrine.” Jennings v. Piazza, No. 12-18-

00253-CV, 2019 WL 2710276, at *3 (Tex. App.—Tyler June 28, 2019, no pet.) (mem. op.)

(quoting Rivera v. Hernandez, 441 S.W.3d 413, 420 (Tex. App.—El Paso 2014, pet. denied)). It

is presumed that property possessed by spouses during marriage is community property, but this

presumption can be overcome by clear and convincing evidence that it is the separate property of

a spouse. TEX. FAM. CODE ANN. §§ 3.002–3.003. Property a spouse acquires “during marriage

by gift, devise, or descent” is separate property. TEX. FAM. CODE ANN. § 3.001(2).

       Here, it is undisputed that Bauman conveyed a 757-acre tract of land known as the “Big

Loco Farm” and a 117.36-acre tract known as “Little Farm” (collectively the Property) to Dianne

while she was married to Leland. Accordingly, the Property was presumed to be community

property unless clear and convincing evidence demonstrated that it was a gift. See TEX. FAM.

CODE ANN. § 3.001; Jennings, 2019 WL 2710276, at *5. “A gift is a voluntary transfer of property

to another made gratuitously and without consideration.” Jennings, 2019 WL 2710276, at *5

(citing In re Marriage of Moncey, 404 S.W.3d 701, 710 (Tex. App.—Texarkana 2013, no pet.)).

To determine whether the Property was conveyed as a gift or as the result of a sale, we first examine

the deed.

       Both parties argue that the deed is unambiguous, but each also contends that the terms of

the deed favor his own position. “Whether a written instrument is ambiguous is a question of law

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for the court.” Richardson v. Mills, 514 S.W.3d 406, 413 (Tex. App.—Tyler 2017, pet. denied)

(citing J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003); Coker v. Coker, 650

S.W.2d 391, 394 (Tex. 1983)). “Therefore, we review the trial court’s decision de novo.” Id.

(citing Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015)). “When conducting a de

novo review, we exercise our own judgment and redetermine each issue while according no

deference to the trial court’s decision.” Id. “If, after we apply the relevant rules of construction,

the written instrument can be given a definite legal meaning or interpretation, it is not ambiguous.”

Id. (citing Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (per curiam);

R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 1980)). But, if “a

deed is subject to two or more reasonable interpretations, then the deed is ambiguous, and a fact

issue exists as to the parties’ intent.” Jennings, 2019 WL 2710276, at *2 (citing Columbia Gas

Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996); Hausser v. Cuellar,

345 S.W.3d 462, 467 (Tex. App.—San Antonio 2011, pet. denied)). “[A]n ambiguity does not

arise merely because the parties advance conflicting interpretations of the deed’s language; instead,

for an ambiguity to exist, both interpretations must be reasonable.” Id.

       If the deed is determined to be unambiguous, we review it “without considering parole

evidence.” Richardson, 514 S.W.3d at 413. If a deed is unambiguous, “our primary duty when

construing [it] . . . is to ascertain the intent of the parties from all of the language in the deed by

applying a fundamental rule of construction known as the ‘four corners’ rule.” Id. (citing Luckel

v. White, 819 S.W.2d 459, 461 (Tex. 1991)). “We discern . . . intent from the entirety of the deed’s

language without reference to matters of mere form, relative position of descriptions,

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technicalities, or arbitrary rules.” Id. (citing Stribling v. Millican DPC Partners, LP, 458 S.W.3d

17, 20 (Tex. 2015)). “No single provision taken alone will be given controlling effect.” Id. (citing

SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005) (per curiam)). “We consider the

entire writing and attempt to harmonize and give effect to all of its provisions by analyzing those

provisions with reference to the document as a whole.” Id. (citing Frost Nat’l Bank, 165 S.W.3d

at 312). “We must assume the parties to the instrument intended every clause to have some effect;

therefore, the language of the deed should be interpreted so that no clause is rendered

meaningless.” Id. (citing Union Pac. R.R. Co. v. Ameriton Prop., Inc., 448 S.W.3d 671, 678 (Tex.

App.—Houston [1st Dist.] 2014, pet. denied)).

       The Texas Supreme Court has 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 v.

Ealy, 521 S.W.3d 791, 794 (Tex. 2017). The warranty deed in question reads,

       I, ELIZABETH SPRADLEY BAUMAN, . . . for and in consideration of the love
       and affection which I have for my niece, the Grantee, have GRANTED, SOLD
       AND CONVEYED, and by these presents do GRANT, SELL AND CONVEY unto
       DIAN[N]E HOUSE . . . all of the surface (without the present merchantable timber)
       and mineral estate in the following described real property in Nacogdoches County,
       Texas, to-wit: . . . “Big Loco Farm” . . . and “Little Farm.”

       Leland argues that the deed does not contain the word “gift” or indicate that it is to be

Dianne’s sole and separate property. Because the terms “sold” and “sell” are included, Leland

argues that the deed merely shows that Bauman loved Dianne and sold her the Property. Leland’s

argument requires us to ignore the provision that the property was granted, sold, and conveyed

“for and in consideration of” love and affection. In other words, the price of the sale, as plainly


                                                 5
stated by the terms of the deed, was love and affection. No further consideration was mentioned

or implied.

         We find Leland’s interpretation of the deed unreasonable because the deed plainly states

that the only consideration for the transfer was love and affection for a family member. See Scott

v. Scott, No. 04-17-00155-CV, 2018 WL 2694817, at *3 (Tex. App.—San Antonio June 6, 2018,

no pet.) (mem. op.) (concluding that a “Gift Deed,” in consideration of “Love of, and affection

for, Grantee,” was unambiguous and barred consideration of parole evidence that the property

conveyed by the deed was purchased); see also In re Marriage of Watson, No. 07-08-0057-CV,

2010 WL 346153, at *4 (Tex. App.—Amarillo Jan. 27, 2010, no pet.) (mem. op.) (“[W]e find the

phrase ‘in consideration of the relationship and services provided’ here refers not to some

unspecified but valuable consideration but to those arising from the familial relationship.”). 3

         Bauman’s intent to give the Property to Dianne can be ascertained from the language of

the deed. Therefore, we conclude that the deed was itself sufficient to rebut the presumption

favoring community property. In light of this finding, we need not address Leland’s remaining

arguments.




3
 We distinguish this case from cases involving deeds that either recited that properties were deeded in exchange for
monetary consideration or other valuable consideration. See Johnson v. Driver, 198 S.W.3d 359, 362 (Tex. App.—
Tyler 2006, no pet.). In those circumstances, language including love and affection as additional consideration merely
creates a rebuttable presumption that a conveyance is a gift. See Deleon v. Ramirez, No. 04-16-00495-CV, 2017 WL
3044546, at *2 (Tex. App.—San Antonio July 19, 2017, pet. denied) (mem. op.) (citing Hardy v. Hardy, No. 03-02-
00780-CV, 2003 WL 21402002, at *3 (Tex. App.—Austin June 19, 2003, no pet.) (mem. op.); Ellebracht v.
Ellebracht, 735 S.W.2d 658, 659 (Tex. App.—Austin 1987, no writ)).
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      We affirm the trial court’s judgment.




                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:      November 13, 2019
Date Decided:        November 19, 2019




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