NO QUEDA NADA.

As noted in the harmonizing canon discussion, before a court applies an anti-harmonizing canon, it must first determine that the deed cannot be harmonized after a review of the four corners of the instrument. Once that finding is made, the court may choose from a long list of canons that will give controlling weight or preemptive authority to one part of the deed.364 Such was the clear intent of the court in Hancock v. Butler,365 the case which first pronounced the harmonizing canon. The court stated:

The governing rule is, that every part of the instrument should be harmonized and given effect to, if it can be done. If that cannot be done, and it is found that the deed contains inherent conflict of intentions, then the main intention, the object of the grant being considered, shall prevail.366

Thus, as a condition precedent to the use of an anti-harmonizing canon the court should make every effort to harmonize. The legal standard for using an anti-harmonizing canon, however, has not been clearly articulated.

99, 102 (Tex. Civ. App.—San Antonio 1958, writ ref’d n.r.e.); Arnold v. Ashbel Smith Land Co., 307 S.W.2d 818, 824–25 (Tex. Civ. App.—Houston 1957, writ ref’d n.r.e.); Hester v. Weaver, 252 S.W.2d 214, 215 (Tex. Civ. App.—Eastland 1952, writ ref’d); Acklin v. Fuqua, 193 S.W.2d 297, 299 (Tex. Civ. App.—Amarillo 1946, writ ref’d n.r.e.); First Nat’l Bank of Snyder v. Evans, 169 S.W.2d 754, 756 (Tex. Civ. App.—Eastland 1943, writ ref’d).

364. For example, once the court decided to use an anti-harmonizing canon, it could choose from several, including the “granting clause prevails,” “the granting and habendum clause prevails over recitals,” or a more generic unequal weight clause that allows the court to make an ad hoc decision as to which clause prevails. See infra part VI.B.2.

365. 21 Tex. 804, 806 (1858).

366. Id. at 806. See generally Herd, supra note 62, at 640–43 (discussing a line of cases dealing with resolving irreconcilable conflicts in grants).

For example, two articulated standards are “irreconcilable conflict” and “necessary repugnance.” But what constitutes such a conflict or repugnance is the subject of substantial disagreement. The Alford/Luckel disparate treatment of the multiple fraction deed is illustrative of that difficulty.

The Texas Supreme Court, in Benge v. Scharbauer,367 gave the

following definition of when anti-harmonizing canons should be used: All parts of the instrument must be given effect if possible to do so without violating any legal principles. Even though different parts of the deed may appear to be contradictory and inconsistent with each other - if possible, the court must construe the language of the deed so as to give effect to all provisions thereof and will harmonize all provisions therein, and not strike down any part of the deed, unless there is an irreconcilable conflict wherein one part of the instrument destroys in effect another part thereof.368

This approach makes it difficult for the court to find that a conflict exists. It places a heavy burden on those seeking to have the court place greater weight on one part of a deed than another.

Any generalization concerning when courts find and do not find an irreconcilable conflict, is difficult to make. The supreme court has consistently used language, such as in Benge, to avoid applying anti- harmonizing canons. For example, in Cockrellv. Texas Gulf Sulphur Co.,369 the supreme court attempted to reconcile a deed that reserved royalty from a designated parcel. The existing lease covering the parcel contained an entirety clause so that the grantor received apportioned royalties prior to the conveyance. The deed was made subject to the existing lease. The grantee claimed that the grantor was not entitled to any royalty because production did not occur on the acreage that was conveyed. The court disagreed, giving effect to the deed’s subject-to clause. The court found that the subject-to clause incorporated the lease’s entirety clause into the royalty deed.370 Consequently, the deed entitled the grantor to royalties on an apportioned

367. 152 Tex. 447, 259 S.W.2d 166 (1953).

368. Id. at 451, 259 S.W.2d at 167, For other similar definitions, see Watkins v. Slaughter, 144 Tex. 179, 182, 189 S.W.2d 699, 700 (1945); Fleming v. Ashcroft, 142 Tex. 41, 48–49, 175 S.W.2d 401, 405–06 (1943); Associated Oil Co. v. Hart, 277 S.W. 1043 (Tex. Comm’n App. 1925, holding approved).

369. 157 Tex. 10, 15, 299 S.W.2d 672, 675, (1956). 370. Id. at 16, 299 S.W.2d at 676.

basis.371 While the Cockrell decision gave effect to, and harmonized, all the language in the deed, I believe that the dissent is correct in concluding that the overall intent of the parties, as expressed in the instrument, was to only reserve the non-apportioned royalty under the acreage described in the deed.372 Nonetheless, the Cockrell court construed the deed in a way that avoided a potential conflict by creating two grants. Apportioned royalties were reserved under the existing lease, but non-apportioned royalties were

reserved under future leases. As with Hoffman and Benge, any

interpretation that concludes that the parties intended multiple grants by reference to a boilerplate provision is somewhat suspect. Yet, the supreme court realized that conflicts can and do occur. In those cases, use of the appropriate anti-harmonizing canons will be necessary.