                                              OPINION
                                         No. 04-10-00065-CV

                       Michael CARESS, Michael York and Manuel Villarreal,
                                         Appellants

                                                   v.

                                            Jane M. LIRA,
                                               Appellee

                      From the 406th Judicial District Court, Webb County, Texas
                                Trial Court No. 2008-CVQ-000782-D4
                             Honorable Oscar J Hale, Jr., Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: September 15, 2010

AFFIRMED

           This is an appeal from a partial summary judgment rendered in favor of appellee on her

trespass to try title claim against appellants. The disputed property was sold to appellee, and

then, one month later, also sold to appellants at a foreclosure sale. We affirm.

                                               BACKGROUND

           The following facts are not in dispute. In 2006, Gares II, Inc. (“Gares”) purchased a tract

of land in a residential subdivision that included three lots, one of which is the lot at issue in this
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appeal. Gares’ purchase was funded by Laredo National Bank pursuant to a real estate lien note,

which was secured by a first lien Deed of Trust (“the Gares Deed”). When Gares defaulted on

his obligation to pay the note, the Substitute Trustee posted the property for a foreclosure sale on

March 10, 2008. The next day, Gares sold the lot at issue here to appellee, Jane Lira. The bank

did not execute a release of lien; therefore, none was recorded. The foreclosure sale occurred on

April 1, 2008. Following the sale, the bank executed and delivered a Substitute Trustee’s Deed

conveying three lots, including the one at issue here, to appellants. Lira filed the underlying

trespass to try title suit against the bank and the appellants. Lira subsequently filed a motion for

partial summary judgment. The trial court granted the motion voiding the trustee’s sale and

severed Lira’s claims against appellants from other claims against other parties in the underlying

suit.

                                              DISCUSSION

        To recover in her trespass to try title suit, Lira bore the burden to prove her title to the

disputed property by: (1) proving a regular chain of conveyances from the sovereign, (2)

establishing superior title out of a common source, (3) proving title by limitations, or (4) proving

title by prior possession coupled with proof that possession was not abandoned. Martin v.

Amerman, 133 S.W.3d 262, 265 (Tex. 2004); Longoria v. Lasater, 292 S.W.3d 156, 165 (Tex.

App.—San Antonio 2009, pet. denied). Lira’s claim must rest on the strength of her title, not a

weakness in the appellants’ title. Longoria, 292 S.W.3d at 165.

        In this case, there is no dispute Lira and appellants claim title from a common source;

thus, Lira had only to prove she held superior title. In her motion for summary judgment, Lira

argued she held superior title because the trustee’s sale of the lot to appellants was void on the

grounds that the bank agreed to release the lot from the lien under the Gares Deed in exchange



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for Lira paying to the bank the agreed payoff amount on the lot. Lira requested and received a

payoff amount as it applied to the lot, and although she paid that amount to the bank, the bank

did not execute an instrument evidencing the bank’s release of the lot from the Gares Deed. The

bank then allowed the same lot to be sold at a foreclosure sale. In their response, appellants

countered that the foreclosure sale was not void because the Gares Deed does not contemplate or

authorize a partial payment of the debt owed by Gares. Instead, according to appellants, the

Gares Deed requires that the entire debt secured by the deed be paid before any lien is released.

Therefore, appellants argued, because Lira only made a partial payment toward Gares’ debt as to

the one lot, the lien on the one lot could not be released.

       Our resolution of this issue centers on the construction of the Gares Deed. Generally, the

construction of an unambiguous deed is a question of law. Terrill v. Tuckness, 985 S.W.2d 97,

101 (Tex. App.—San Antonio 1998, no pet.) (noting rules of contract construction ordinarily

apply to construction of a deed). In construing a deed, our primary duty is to ascertain the intent

of the parties as provided within the four corners of the document. Luckel v. White, 819 S.W.2d

459, 461 (Tex. 1991).      We must examine and consider the entire writing in an effort to

harmonize and give effect to all the provisions of the deed, even if different parts of the deed

appear inconsistent or contradictory. Id. at 462. We assume the parties intended every clause to

have some effect; therefore, the language of the deed should be interpreted so that no provision is

rendered meaningless. Id.; Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). No single

provision taken alone will be given controlling effect; rather, all the provisions must be

considered with reference to the whole instrument. Coker, 650 S.W.2d at 393.

       The Gares Deed defines the “Mortgaged Property” to include “the real property described

in Exhibit “A,” which states as follows:



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               Situated in Webb County, Texas, and being the Surface Only of Lot
        Number Seven (7), in Block Number One (1), Lot Number One (1) in Block
        Number Two (2), and Lot Numbers Four (4) and Fourteen (14) in Block Number
        Three (3), D&J Alexander Subdivision, Unit VIII, a subdivision situated in the
        City of Laredo, as per the Plat recorded in Volume 25, Page 162, Webb County
        Plat Records.

        The deed defines “Indebtedness” to include “[a]ny sums becoming due and payable

pursuant to the Note.” The “Payment of Indebtedness” and “Partial Payments” clauses of the

deed state respectively as follows:

                If [Gares] shall pay, or cause to be paid, all of the Indebtedness and does
        keep and perform each and every covenant, condition, and stipulation herein, in
        the Note contained, or in any other instrument securing, evidencing or related to
        the Indebtedness, then this agreement and the grants and conveyances contained
        herein shall become null and void, and the Mortgaged Property shall revert to
        [Gares] and the entire estate, right, title and interest of the Trustee and Noteholder
        will thereon cease; and the Noteholder in such case shall, upon request of [Gares]
        and at [Gares’] costs and expense, deliver to [Gares] proper instruments
        acknowledging satisfaction of this instrument; otherwise, this agreement shall
        remain in full force and effect.

                                               ...

                Acceptance by Noteholder of any payment of less than the amount due on
        the Indebtedness shall be deemed acceptance on account only and the failure to
        pay the entire amount then due shall be and continue to be a default; and at any
        time thereafter and until the entire amount due on the Indebtedness has been paid,
        Noteholder shall be entitled to exercise all rights conferred on it by the terms of
        this agreement upon the occurrence of an Event of Default.

        Appellants contend the Partial Payments clause does not allow a lien on a single lot to be

released until the entire Indebtedness is paid in full. We do not agree with appellants’ narrow

interpretation of the Partial Payments clause. We construe this clause as evidencing the parties’

intent that any payment less than the full amount required under the loan agreement constitutes

an act of default. However, we do not construe this clause as precluding the bank from releasing

its lien on a lot-by-lot basis.




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       “A seller or lienholder may execute a partial release, that is, a release of the property

subject to the lien.” 63 TEX. JUR. 3d Real Estate Sales § 414 (2010). “The seller is not required

to execute a partial release unless there is an agreement to that effect.” Id. Here, the Gares Deed

does not contain a separate clause expressly entitled as an agreement between the bank and

Gares allowing Gares to sell off the Mortgaged Property lot-by-lot and obtain a release of lien as

to the sold lot(s). However, two clauses in the Gares Deed evidence an intent to allow for such

an occurrence under certain circumstances. It is an act constituting a default if Gares “without

the prior written consent of [the bank], sells, transfers, [or] conveys . . . its interest in the

Mortgaged Property (or any part thereof) . . . .” [Emphasis added.] This clause evidences an

intent by the parties that Gares may sell “any part” of the Mortgaged Property if it first obtains

written consent from the bank. The deed also contains a clause that allows the bank “without

notice, [to] release any part of the Mortgaged Property or any person liable for the Indebtedness

without in any way affecting the liens hereof on any part of the Mortgaged Property not

expressly released . . . .” [Emphasis added.] This clause evidences an intent by the parties that

the bank may release its lien on a lot-by-lot basis.

       After examining the plain language of this unambiguous deed and construing the deed in

its entirety, we conclude it was the intent of the parties that the bank could release its lien as to

any part of the Mortgaged Property without first requiring that the entire Indebtedness be paid in

full. Lira’s summary judgment evidence establishes that the bank admitted “the payoff check

was sufficient for [the bank] to execute a partial release of lien releasing [the lot]” and the bank

no longer had a lien against the property “[u]pon successful negotiation of the Payoff Check

tendered by or on behalf of” Lira. However, despite these admissions, the bank never executed a

document evidencing its release of its lien. Nevertheless, under the circumstances presented



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here, we do not believe the failure to execute a written release invalidates the sale to Lira. A lien

is usually extinguished upon payment of the indebtedness that it was created to secure. Spencer-

Sauer Lumber Co. v. Ballard, 98 S.W.2d 1054, 1055 (Tex. Civ. App.—San Antonio 1936, no

writ). The extinguishment is complete even without a written release. Id. Therefore, because

the lien on the lot purchased by Lira was extinguished prior to the foreclosure sale, there was no

lien as to that lot to foreclose, and the trustee had no power to transfer title to the lot to

appellants. See Diversified, Inc. v. Walker, 702 S.W.2d 717, 721 (Tex. App.—Houston [1st

Dist.] 1985, writ ref’d n.r.e.) (if trustee conducting foreclosure sale had no lawful authority to

offer property for sale, purchaser could not acquire title to the property). Accordingly, we

conclude the trial court did not err in rendering summary judgment in favor of Lira on her

trespass to try title claim against appellants.

                                                  CONCLUSION

        We overrule appellants’ issue on appeal and affirm the trial court’s judgment.




                                                    Sandee Bryan Marion, Justice




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