CHAPTER 12 The Mother Hubbard or Cover All Clauses in ... · CHAPTER 12 The "Mother Hubbard" or "Cover All" Clauses in Mineral Deeds and Leases Bruce M. Kramer Professor of Law Texas

CHAPTER 12

The "Mother Hubbard" or "Cover All" Clauses

in Mineral Deeds and Leases

Bruce M. Kramer

Professor of Law

Texas Tech University

School of Law

Lubbock, Texas

Synopsis

§ 12.01. Introduction.

§ 12.02. Sample Mother Hubbard Clauses.

[1]--Deed Clauses.

[2]--Mineral Lease Clauses.

§ 12.03. Purposes of Mother Hubbard Clauses.

[1]--Deeds.

[2]--Leases.

§ 12.04. The Two Basic Approaches.

[1]--The Literal Approach.

[2]--The Strict or Narrow Approach.

§ 12.05. The Effect of Reservations or Exceptions on Mother Hubbard Clauses.

§ 12.06. Recordation and Notice Problems.

§ 12.07. Miscellaneous Problem Areas.

[1]--Scienter Requirement.

[2]--Future Acquired Interests.

[3]--Surface or Mineral Estate.

§ 12.01. Introduction.

Many standard oil and gas lease forms, as well as other instruments used to convey mineral interests,contain a clause which seeks to insure that the transferee receives all of the mineral estate owned by thetransferor even if some interest is not specifically described. This clause is often referred to as a "MotherHubbard" or "cover-all" clause.(1) This Chapter will explore the legal ramifications of the use of MotherHubbard clauses.(2)

The use of Mother Hubbard clauses is not of recent origin.(3) The basic underlying problem that gave rise totheir use was a combination of arbitrary rules that affected judicial interpretations of land descriptions andthe lack of a uniform system by which land could be defined adequately and accurately.(4) The problemswere particularly acute in Texas where large areas of land were poorly surveyed during the early days ofsettlement. That led, in part, to a special type of Mother Hubbard clause, known as a "excess and vacancy"clause, which is much more restrictive than the typical Mother Hubbard clause.(5) Also, the use of a metesand bounds description, along with the random placement of fences or other boundary lines, created many"limitation titles" that would only be confirmed many years after a deed or lease had been executed. For thetransferee to receive the benefit of minerals owned by the transferor by adverse possession, Mother Hubbardclauses often included references to adversely possessed interests as included within the deed or lease.

With oil and gas leases, the lessees would insist on a Mother Hubbard clause because under a rule of captureownership scheme, unfettered by conservation regulation, or a liberal well spacing exception doctrine, thelessor who actually owned a small strip of land not described by the lease would be able to drill a well onthe premises and produce a "living allowable," all to the great detriment of the lessee.(6) Today MotherHubbard clauses are more common in oil and gas leases then in other instruments, although they still appearin deeds.

§ 12.02. Sample Mother Hubbard Clauses.

[1]--Deed Clauses.

There are two general types of Mother Hubbard clauses used in mineral deeds. The first usually expressesan intent to convey and then uses conveying language to cover the non-specifically described mineralinterests. For example, in Luthi v. Evans,(7) the court interpreted the following Mother Hubbard clause:

Assignors intend to convey, and by this instrument convey, to the Assignee all interest of whatsoever naturein all working interests and overriding royalty interest in all Oil and Gas Leases in Coffey County, Kansas,owned by them whether or not the same are specifically enumerated above . . ..(8)

The second type of deed form merely refers to the intention or agreement of the parties to include the non-specified acreage. For example, in Katz v. Bakke,(9) the deed stated:

It being intended hereby to convey to the Grantee herein all the right, title, interest and estate in and to anyand all minerals owned by the undersigned in or under said land hereinafter specifically excepted from thisconveyance.(10)

While one commentator has suggested that the second clause, since it lacks words of conveyance, may notbe sufficient to transfer title,(11) no court has treated the lack of granting language as critical to theapplication of the Mother Hubbard clause.

Another typical feature of Mother Hubbard clauses is that the lands must either be "contiguous," "adjacentto," or "adjoining." In Gardner v. Amerada Petroleum Corp.,(12) the Mother Hubbard clause referred to

lands that were "adjacent or contiguous." The issue was whether an urban lot across a dedicated street fromthe described acreage was included in the Mother Hubbard clause. Applying Texas law, the courtdetermined that neither term requires the interest physically to touch the described acreage.(13) Therefore thecourt concluded that the lands were included in the conveyance.(14)

In Texas, as indicated, specialized Mother Hubbard clauses were developed to deal with the problems of"excesses and vacancies" caused by inaccurate surveys followed by resurveys.(15) Other types of MotherHubbard clauses specify what types of lands the grantor or lessor own that are to be covered. This mightinclude lands claimed by adverse possession, prescription (Louisiana), reversion, or unrecordedinstrument.(16) Some clauses, by their own terms, only apply to interests owned at the time of theconveyance while other clauses are intended to pick up after-acquired titles.(17) Obviously, where theMother Hubbard clause specifies any condition precedent to its operation, that condition must be met beforeother issues relating to the clause's applicability arise.

[2]--Mineral Lease Clauses.

Mother Hubbard clauses are more frequently found in mineral leases than in mineral deeds. It is notsurprising, therefore, that different deed forms contain different language in their Mother Hubbard clauses.But the same problems that arise with deed clauses arise in lease clauses. For example, the following clausenot only reflects an intent to include other acreage but also uses conveying language to actually lease thenon-described minerals:

Notwithstanding any particular description, it is nevertheless the intention of lessor to include within thislease, and he does hereby lease, not only the land so described but also any and all other land owned orclaimed by lessor in the herein named survey or surveys, or in adjoining surveys, and adjoining the hereindescribed land up to the boundaries of the abutting landowner.(18)

The following clause merely asserts the intention of the parties to include non-described acreage; it is alsomore general in the types of acreage that it includes because it uses "contiguous" rather than "adjoining." Italso expressly covers as much acreage as the lessor may own, even where that non-described acreageexceeds the amount specifically described:

but this lease shall cover and include all land owned or claimed by lessors contiguous to or forming a partof the land described or referred to above, whether the same be more or less than the estimated acreage.(19)

Where the parties want to create conditions on the operation of the Mother Hubbard clause, they are free todo so. For example, in Whitehead v. Johnston,(20) the lease specified, not only an adjoining or adjacencyrequirement, but also the types of claims of land that would be covered:

This lease also covers and includes, in addition to that above described, all land, if any, contiguous oradjacent to or adjoining the land above described and (a) owned or claimed by Lessor by limitation,prescription, possession, reversion or unrecorded instrument or (b) as to which Lessor has a preference rightof acquisition.(21)

The use of the three terms, "adjacent," "contiguous," and "ad-joining," may create problems since"adjoining" is more restrictive than either "adjacent" or "contiguous." To give the term meaning, a courtmay require physical touching of the parcels.

There are some Mother Hubbard clauses that specifically deal with the issue of after-acquired propertyinterests. These issues may arise, for example, where the lessor is adversely possessing a mineral interest

but has not done so for the limitations period at the time of leasing. What would happen when, eventually,the lessor successfully adversely possesses a mineral estate in lands adjacent to lands previously leased? Thefollowing clause would seem to allow those adversely possessed lands to be included in the leased acreage,even though title to them did not inure to the lessor until after the lease had been executed:

This lease covers not only such interests in leased premises as the party constituting Lessor presently ownstherein but also such additional interests as he may acquire in the future by operation of the law orotherwise . . ..(22)

The use of printed forms is both a blessing and a curse for the practicing attorney. They save valuable timeif properly used, but create the risk of including or excluding matters of concern to the client. So it is withMother Hubbard clauses. While the clause is for the benefit of the grantee or lessee, the various provisionscontained in different form deeds or leases may not fit the particular needs of your client. These provisionsalso tend to vary substantially from state to state because of local needs. For example, many Louisianaclauses deal with the civil law concept of prescription, which is their analog to adverse possession. ManyTexas leases refer to surveys, rather than governmental sections, because many areas of Texas weredeveloped before governmental section lines had been created. Thus, care should be taken in the drafting ofa Mother Hubbard clause to see that it covers the situations which are most likely to occur in your state,without including surplus language which might only confuse a court. Before using such terms as"adjoining," "contiguous," or "adjacent," one should be aware of how your state treats all of those terms, foras we saw above, those terms may not have the same definitions everywhere.

§ 12.03. Purposes of Mother Hubbard Clauses.

The inclusion of Mother Hubbard clauses in deeds or leases may serve the same or different objectives. Inboth deed and lease situations, it is, unfortunately, too common for there to be shortcomings in the legaldescription of the property interest owned by the lessor or grantor. Insofar as the clause reflects the parties'intent to include acreage not specifically described, its purpose is the same. However, because of thefugacious nature of oil and gas and the rule of capture ownership concept, inclusion of this clause in leasesserves to protect the lessee against third parties who later purchase or lease the minerals underlying theomitted acreage and cause the lesee a substantial amount of drainage or expense.

[1]--Deeds.

The primary purpose of Mother Hubbard clauses in deeds is to deal with the inadequacy of descriptions.These clauses originated in mineral deeds or leases, in the use of general clauses such as "all of the grantor'sland in X county or Y survey," to describe the interest to be conveyed. Thus a description of "all that certaintract or tracts, parcel or parcels, . . . situated in the county of Brazoria or state of Texas..." was held totransfer all estates and interests owned by the grantor.(23)

In all deeds, the problem of adequately describing the conveyed interests is exacerbated by a lack ofgovernmental surveys, the use of metes and bounds descriptions, and erroneous land surveys. The problemof erroneous land surveys was particularly acute in Texas, which has the bulk of the litigation regardingMother Hubbard clauses.(24)

A further description problem arises where the owners rely on natural or artificial monuments to describetheir interests, when, in fact, their actual ownership is more or less than the physical features wouldindicate.(25) This would allow an owner who acquires title by adverse possession to transfer the landadversely possessed when the owner-grantor intends to transfer all of the interests she owned.(26) Theproblem of lands or minerals acquired through adverse possession is lessened where the grantor has not

acquired legal title through the appropriate quiet title action and the clause is written to cover after-acquiredtitle.

Mother Hubbard clauses also are effective to deal with uncertainty caused by unclear or ambiguous legaldoctrines relating to the ownership of lands or minerals affected by accretion, relic-tion, or erosion.Additional legal uncertainty may be caused by ownership of minerals under easements or rights-of-waywhere the deed is unclear as to the ownership of the mineral estate. In these cases, the interests would inureto the benefit of the grantee/lessee should the grantor/lessor be the owner of the mineral estate.(27)

With leases of fugacious minerals like oil and gas, the additional factor of the rule of capture createssubstantial incentives for lessees to include Mother Hubbard clauses in leases.

A recent Alabama Supreme Court decision stated: "public policy discourages the separate ownership ofnarrow strips of land."(28) An initial question that may be posed is why is the court inquiring into issuesrelating to public policy as it interprets a written instrument executed by two competent parties. Clearly aMother Hubbard clause does not violate any "public policy" that would prevent the parties' consensualagreement from being implemented. This policy, which is implicitly based on "efficiency" principles, is onereason why courts have enforced Mother Hubbard clauses. The creation of small, isolated, possiblylandlocked strips of land imposes substantial transaction and other costs on society when faced withmultiple owners of either the surface or mineral estates. Thus, where parties do include these clauses, courtswill enforce them notwithstanding the general terms and lack of specific descriptions used.

[2]--Leases.

Prior to the adoption of well spacing and other conservation regulations, any mineral owner, notwithstandingthe size of the holding, could drill a well and produce as much oil or gas as was physically possible. Lessorsof specifically described lands who intentionally or unintentionally retained ownership of small mineralestate holdings could develop those holdings themselves or lease to third parties. This would require thelessee to drill expensive and, probably, unnecessary offset wells to prevent loss of the hydrocarbons.(29)

With the advent of compulsory pooling statutes and proration rules limiting production from wells drilled onsmall holdings, the economic incentive to include Mother Hubbard clauses has been reduced but noteliminated. Lessees always want to control as much acreage as they can. Thus, it is in their best interest toinclude these clauses in their leases even though the threat of drilling and development on small holdingshas essentially been eliminated.

§ 12.04. The Two Basic Approaches.

[1]--The Literal Approach.

The legitimacy of Mother Hubbard clauses can be traced to a trilogy of cases decided on the same day bythe Texas Commission of Appeals. Sun Oil Co. v. Burns,(30) Sun Oil Co. v. Bennett,(31) and Gulf ProductionCo. v. Spear,(32) were all authored by Commissioner Smedley, a jurist of some repute in oil and gas matters.Burns involved a printed form Mother Hubbard clause that stated:

It being the intention, however, of lessor to include within the terms of this lease not only the abovedescribed land, but also any and all other land owned or claimed by lessor in said survey or surveys inwhich the above described land is situated or in adjoining surveys and adjoining the above describedland.(33)

The typewritten description included "100 acres of land" but, when added up, actually described 106.25

acres. In addition, the lessor owned a 3.736 acre tract adjoining the described 106.25 acre tract.

The opinion stresses the fact that the court is merely enforcing the written agreement of the parties. Thecourt's main purpose is to ascertain the parties' intent as expressed in the deed. The language of the MotherHubbard clause was clear and not ambiguous.(34) While there is a canon of construction that generallyfavors specific descriptions over general descriptions,(35) Burns stated that, where the intention is clear tolease not only the specifically described acreage but any additional acreage, that intention will beimplemented.(36) The court emphasized the intent of the parties and made no direct statement limiting thatintent to small or irregularly shaped tracts. It is clear, however, that the excluded acreage was a reasonablysmall area when compared to the described 106 acres.

In Bennett, the court took a similar approach to a metes and bounds description that, on its face, coveredtwo separate tracts, one of 34 acres and one of 42 acres.(37) The issue involved a 2.59 acre tract whichadjoined the described 42 acre tract. The Mother Hubbard clause was identical to the clause in Burns sincethe same lease form was used. Here the lessor sought to reform the lease to remove the Mother Hubbardclause because she never had intended to lease the 2.59 acre tract. Apparently the lessor never read thewritten lease and, therefore, was unaware of the inclusion of the Mother Hubbard clause.

The court again emphasized the plain and unambiguous language of the clause. Ignorance of what you agreeto is neither a mutual mistake nor fraud so that reformation is unavailable. But the court added language notcontained in the Burns opinion, which may have sown the seeds for some later problems:

When once negotiations have ripened into a written agreement executed by the parties, and the instrument isplain and unambiguous, the agreement and the intention of the parties, in the absence of fraud, accident ormutual mistake, are to be determined by the court as a matter of law. . . . The . . . clause is not misleading,and it contains no inherent unfairness. Its apparent reasonable purpose is to prevent the leasing of smallunleased pieces or strips of land, . . . which may exist without the knowledge of one or both of the parties byreason of incorrect surveying, careless location of fences, or other mistake.(38)

The court openly talks about small or irregular tracts as coming under the Mother Hubbard clause eventhough that language is nowhere to be found in the clause itself. It also raises the specter of a lack of ascienter requirement when it discusses lands that are owned without the knowledge of the parties.(39) Thatlanguage is clearly dictum here because the lessor knew that she owned the non-described 2.59 acre tract.Finally, the court hints that only where the omission of the lands is caused by mistake or errors in surveyingdoes the clause apply. Again there is nothing in the express language of the clause which limits itsapplication to acreage omitted by mistake.

Finally, in Spear, a much briefer Mother Hubbard clause was part of the printed form lease. The clausemerely stated: "It being the intention to include all land owned or claimed by Lessor in said survey orsurveys."(40) The lessee claimed that a non-described 1.81 acre tract which adjoined five specificallydescribed tracts was leased by virute of the above cited clause.(41) The facts were more complicated sincethe 1.81 acres was really mis-described rather than non-described.

The lessor argued that, without the additional language in the Burns and Bennett Mother Hubbard clausesevincing a clear intent to include non-described acreage, the 1.81 acres should not be treated as covered bythe lease. The court found sufficient evidence of intent to lease the mis-described land by looking at the"surrounding circumstances" of the leasing transaction, even though it found the clause unambiguous.(42)

While all three decisions involved reasonably small acreage, their major focus was on the express language

of the Mother Hubbard clause. With the exception of the quoted language from Bennett, the MotherHubbard clause was treated as any other part of a lease. It was enforced as written, unless the lessor couldprove fraud, duress, or mutual mistake. There was no public policy analysis and little concern for theproblems of including large areas within the ambit of the clause. Likewise, all three decisions treated theclause as clear and unambiguous on its face, preventing the admission of parol evidence to show a contraryintent.

This literal approach to interpretation was followed in several later Texas cases. For example, in Law v.Stanolind Oil & Gas Co.,(43) the court had no difficulty in applying a standard Mother Hubbard clause to a5.63 acre tract where the lease had described only an 80 acre tract. No mention was made about small orirregular strips of land, nor did the court treat the clause as ambiguous. Likewise, in Dennis v. PacePetroleum Co.,(44) the court found that a substantial strip of land constituting 10.9 acres came within theambit of a series of leases containing mis-descriptions of the lands to be leased. A lease with a MotherHubbard clause was treated as being "quite clear" in reflecting an intent to lease all minerals owned by thelessor that adjoined the described acreage.(45)

This literal approach was also followed in Alexander v. Byrd,(46) a case involving adversely possessedlands. The Mother Hubbard clause covered "all land owned by [the lessors], either by deed, inheritance,limitation or otherwise in said survey or surveys, adjoining surveys or in the neighborhood thereof, . . .."(47)

The lessor had claimed a 6.2 acre strip of land by adverse possession. The lease specifically described a 100acre tract. The court found the clause unambiguous in reflecting the parties' intent to lease all lands ownedby lessors within the designated surveys. The 6.2 acre strip was owned through limitation title and, thus, wasleased by the Mother Hubbard clause.(48)

The literal approach has received support in Louisiana. In Melancon v. Melancon,(49) a Mother Hubbardclause was said to have been inserted in the lease "for the protection of the lessee should lessor ownadditional property adjacent to the property described in the lease."(50) No mention was made of limiting itsapplication to small strips or on public policy grounds. This was followed in Bergeron v. Amoco ProductionCo.,(51) so that a 40 acre tract of land located in the same section of land was covered by the MotherHubbard clause. In Bergeron, Amoco had entered into several leases with members of the Bergeron family.In one lease, the mother had purported to convey all of the mineral estate in a designated 40 acre tract. Inreality, she only owned a 513/2880th interest. Her sons owned the remaining fractional share. Her sons,however, had entered into leases with Amoco on other parts of the section where they owned mineralservitudes. These leases contained Mother Hubbard clauses which the Fifth Circuit found would bring intheir fractional share of the non-described 40 acre tract. The clause was enforced as written even though the40 acre tract was neither small nor irregular in shape.(52) The written instrument evinced clear andconvincing proof that the sons had intended to lease all of their acreage in the section. The fact that theywere unaware of their ownership of the fractional share in the 40 acre tract did not constitute a mutualmistake and the instrument was enforced as written.

[2]--The Strict or Narrow Approach.

Professors Williams and Meyers make the following observations about Mother Hubbard clauses:

Cover-all clauses are not highly regarded by the courts generally. An extreme manifestation of judicialdisfavor of the clause is the indication in one case that it does not have the effect of including in theconveyance any premises not particularly described. . . . Such disfavor has also been manifested by a narrowconstruction. . . .(53)

This judicial anxiety was manifested somewhat in the Bennett and Spear cases, where the court tried to limitthe clauses' general applicability. Even before this negative judicial attitude became clear, several courtsattempted to minimize the impact of Mother Hubbard clauses. In Texas Osage Co-Op Royalty Pool v.Thomas,(54) the court was faced with interpreting a very broad Mother Hubbard clause. If given facial effectit would have expanded the amount of acreage conveyed by over 200 acres.(55) The court grabbed on to thelanguage in Spear which allowed it to consider the surrounding circumstances. In Thomas, however, thecourt treated the deed's language as ambiguous and admitted "general" parol evidence, rather than limitingthe admission of extrinsic evidence more narrowly. Through the admission of parol evidence the courtconcluded that the Mother Hubbard clause had never been intended to increase the number of acres grantedand that the description in the deed contained a mistaken reference to a tract larger than the subject of theconveyance.(56)

Another way courts have dealt with Mother Hubbard clauses is to ignore them. In Texas Co. v. NewtonNaval Stores Co., Inc.,(57) the majority opinion totally ignored a Mother Hubbard clause in an oil and gaslease. The lessor had excepted a railroad right-of-way which had been abandoned many years before thelease was executed. The lease covered a total of 210 acres; the excepted right-of-way constituted anadditional 15 acres. The majority concluded that the exception was valid notwithstanding the merger of theservient and dominant tenements on the railroad's abandonment. The dissenting opinion sought to give somemeaning to the rather broad Mother Hubbard clause. If these clauses are to be enforced at all, and thereappears to be no public policy reasons not to enforce them in general, the facts in this case required itsapplication. The dissenting opinion noted the unfavorable judicial attitude towards such clauses when it said:

Courts have not looked with much favor on this clause in leases. It would serve no purpose to discuss thatclause except to say that it should be given some effect. I think the correct application of that clause is tocure minor defects in descriptions and to close up gaps, wedges, and omitted strips. This case, I think is atypical one for the application of this clause.(58)

If courts are attempting to determine the intent of the parties as expressed by the entire instrument, theinclusion of a Mother Hubbard clause should evince an intent to include non-described acreage as part ofthe bargained-for consideration. To ignore its inclusion totally, even as a part of a form lease, is to re-writethe agreement of the parties.

The difficulties in imposing judicial constraints on Mother Hubbard clauses, other than those expresslystated in the clause, is reflected in the leading opinion adopting constraints, Smith v. Allison.(59) The deedcontained a detailed and well-written Mother Hubbard clause:

The parties however intend this deed to include and the same is hereby made to cover and include not onlythe above described land, but also any and all other land and interest in land owned or claimed by theGrantor in said survey or surveys in which the above described land is situated or in adjoining the abovedescribed land. Should the foregoing particular description for any reason prove incorrect or inadequate tocover the land intended to be conveyed as above specified grantor agrees to execute such instrument orinstruments that may be necessary to correct such particular description.(60)

The grantor owned the southeast, northeast, and northwest quarters of Section 124 (480 acres), and all ofSections 123 and 145 (640 acres each). All of the acreage was adjoining, giving the grantor a total of 1760contiguous acres.

The deed specifically conveyed a one-half mineral interest in the southeast and northwest quarters ofSection 124. The grantees claimed that, pursuant to the Mother Hubbard clause, they were the owners of aone-half mineral interest in the northeast quarter of Section 124. The grantee did not claim, although the

language of the clause might support, inclusion of a one-half mineral interest in the additional adjoining1,440 acres.

The trial court and the Court of Civil Appeals viewed the deed as ambiguous and admitted parol evidence toascertain the intent of the parties insofar as the Mother Hubbard clause was concerned.(61) The initialsupreme court opinion also found that the clause was ambiguous, a clear repudiation of Sun Oil Co. v.Burns. The supreme court gave two reasons for its initial finding of patent ambiguity: (1) as written, the fullfee simple absolute title of both the surface and minerals in the non-described north-west quarter would beincluded and (2) the inclusion of the surface is repugnant or inconsistent with the reference to mineralswhich was otherwise contained in the granting, habendum, and warranty clauses.(62)

A concurring opinion by Justice McCall found the deed to be unambiguous, but agreed with the result thatthe minerals under the northwest quarter were not included.(63) He differentiated between Mother Hubbardclauses which are unaccompanied by specifically described tracts and those which follow specificdescriptions. As to the former, the description is sufficient and conveys all of the land owned by thegrantor.(64) But, as to the latter, Justice McCall concluded:

[T]he "Mother Hubbard" provision should be considered as supplemental to the specific description of theparticular tract which is the primary subject of the conveyance, and such provision should not be regardedas an independent description of any tract wholly separate and distinct from the particularly described tractunless the parties have clearly indicated in the instrument that was their intention.(65)

Justice McCall's approach seemingly balances the tension between enforcing the express language of awritten instrument and limiting the impact of a "form" provision, which is often unread based on somenebulous public policy grounds. It does not limit the clause's application to small strips or tracts but doeslimit it to areas particularly described.

On the motion for rehearing, the majority basically accepted the position of Justice McCall, but addedlanguage from Sun Oil Co. v. Bennett that Mother Hubbard clauses only cover small "pieces or strips" ofland.(66) This goes beyond the McCall concurring opinion and unnecessarily restricts the application of theclause.(67) However, by treating the clause as unambiguous, parol evidence is inadmissible. This restricts theapplication of Mother Hubbard clauses, even where the parties may have intended to include more thansmall pieces or strips of land.

The court was clearly struggling with its apparent view that the parties, and more specifically the grantor,could not have intended to include large amounts of land or minerals by the inclusion of a Mother Hubbardclause in a form deed or lease. The court is apparently "saving" the grantor from the unintended result ofsigning a lease or a deed with a Mother Hubbard clause. It is also adopting what it undoubtedly perceives asthe industry practice of treating these clauses as including only small strips or pieces of lands.(68) Whilegiving some effect to the clause, the approach taken by the opinion on rehearing minimizes its impact andmakes the deciding issue when is acreage small or when is a strip not a strip.

The confusion caused by the multiple opinions in Smith was repeated by the Mississippi Supreme Court inContinental Oil Co. v. Walker.(69) The issue was whether a Mother Hubbard clause in a lease covered anadjacent 40 acre parcel, whose ownership was being disputed. The court rejected the lessee's argument thatthe non-described 40 acre parcel was included, although its rationale is not clear. While noting that MotherHubbard clauses are "not looked on with favor" and are only intended to cover "irregular or omitted strips ofland," the court argued that the recital of the number of acres covered by the lease prevents giving effect tothe Mother Hubbard clause in accordance with the lessee's position.(70) The Mississippi approach is similar

to that of Justice McCall in that it refuses to accept the language as written as reflecting the parties' intent todouble the size of the acreage to be leased through the Mother Hubbard clause. At one point, the court treatsthe clause as unambiguous but incapable of bringing in more than irregular strips or pieces but then suggeststhat parol or extrinsic evidence may be admitted to ascertain the parties' intent.

In Barnett v. Getty Oil Co.,(71) the Mississippi Supreme Court treated a conflict between the specificdescription clause, the Mother Hubbard clause, and the acreage recital as creating an ambiguity so that parolor extrinsic evidence could be admitted to ascertain the intent of the parties. The lease on its facespecifically described a 200 acre tract while the recital clause said that the lease contained 240 acres. Thelease also contained a Mother Hubbard clause. The lessor argued that Walker precluded the admission ofparol evidence and that the Mother Hubbard clause should be narrowly construed to cover only small tracts.The court disagreed that Walker treats all Mother Hubbard clauses as unambiguous and found that theinterplay among the three clauses in this lease created an ambiguity which could be resolved throughextrinsic evidence.

The Alabama Supreme Court also follows the narrow interpretation rule for Mother Hubbard clauses,although in Whitehead v. Johnston,(72) the court did find non-described acreage covered by the clause. TheMother Hubbard clause was narrowly written so that only lands claimed or owned by the Lessor bylimitation, prescription, possession, reversion, or unrecorded instrument would be covered. In addition, thelands had to be contiguous, adjacent, or adjoining. The lessor leased a specifically described 5 acre tract. Healso claimed ownership by limitation title to an adjacent 1 acre tract. The court concluded that the 1 acretract was leased through the Mother Hubbard clause, but did so after limiting the application of theseclauses.(73) Thus, only excess acreage or a small strip of land not included in the specific description will becovered by the Mother Hubbard clause.(74) The court treated the lease as unambiguous, essentially followingthe McCall approach in Smith v. Allison.

While a 1 acre tract is a small strip in absolute terms, here it added 20% to the area covered by the lease.The dissenting justices noted that large relative percentage and would have restricted the application of theMother Hubbard clauses even more than the majority.(75) They set up the straw person of includingsubstantially more acreage than could conceivably have been intended by the parties, as in Smith v. Allison,to buttress their claim that a literal application of the clause contravenes public policy. The dissenters,however, never tackled the "freedom of contract" principle used by the majority to give some meaning tothe clause that, after all, was part of a consensual agreement between two competent parties.

Another way to limit the application of a Mother Hubbard clause is to avoid incorporating by reference aninstrument which contains the clause. In Partnership Properties, Co. v. Sun Oil Co.,(76) the owner of certainparcels in Sections 22 and 23 executed a lease with a Mother Hubbard clause in 1945. At the time, theowner claimed by limitation title a 2.41 acre tract in Section 19 that was contiguous to one of the describedparcels. That lease expired and the owner then conveyed the mineral interests without describing the 2.41acre tract. The deed did not contain a Mother Hubbard clause, but did contain a reference to "the landsleased" under the 1945 lease.(77) The grantee argued that the 1945 lease included the 2.41 acre tract and,therefore, that acreage was conveyed in the 1946 deed. The court never stated whether the Mother Hubbardclause would have included the 2.41 acres. It treated the issue as one of the adequacy of the description inthe 1946 deed and applied the standard canon of construction that a specific description controls over ageneral description. If that canon is followed, however, no Mother Hubbard clause would ever beimplemented since, by definition, it is a general description which is supplemental to the specificdescription. Thus, the court refused to give any weight to the reference to the "lands leased" language andavoided the problem of having to apply a Mother Hubbard clause.(78)

§ 12.05. The Effect of Reservations or Exceptions on Mother Hubbard Clauses.

There is a basic tension or inconsistency between a Mother Hubbard clause and a specific exception orreservation. The issue is whether the clause should pick up the interest which has otherwise beenspecifically reserved. After all, if you give the Mother Hubbard any meaning, it does operate outside of thespecific descriptions in the instrument. In Cummings v. Midstates Oil Corp.,(79) the Mississippi SupremeCourt took the apparent position that the Mother Hubbard clause prevails over the specific reservationlanguage. The specific description reserved "the Southwest Quarter of the Southwest Quarter less Ten (10)Acres off of West side . . .."(80) The lease also contained a standard Mother Hubbard clause. The Chancellorfound that the Mother Hubbard clause contained words of conveyance, rather than mere words of intention,so that the excepted acreage was included in the lease. The Supreme Court agreed with the result but treatedthe lease as ambiguous, admiting parol evidence to ascertain the intent of the parties.(81)

The result in Cummings has been criticized by the commentators,(82) and limited in a later MississippiSupreme Court decision.(83) Where the grantor/lessor reserves a discretely described parcel and theinstrument contains a Mother Hubbard clause, the reserved interest should not be conveyed.(84) Thus, ifOwner leases Section 8 to Huge Oil and specifically reserves the northwest quarter, the northwest quarterwould not be swept into the lease by a Mother Hubbard clause.(85) Where the Owner reserves anoutstanding right-of-way or easement and the lease includes a Mother Hubbard clause, the clause shouldoperate to lease the minerals underlying the right-of-way if the Owner and not the holder of the easementowns the minerals.(86)

What happens where Grantor owns a one-half mineral interest underlying two adjacent quarter sections andleases one of the two quarter sections with a lease containing a Mother Hubbard clause. Should the mineralsin the non-described quarter section be leased? Williams and Meyers argue that they should, but clearlyunder the strict interpretation doctrine the non-described quarter section interest will not be leased.(87)

Similarly, if the Grantor owns all of the minerals underlying Blackacre and leases or conveys one-half ofthe minerals by a deed or lease containing a Mother Hubbard clause, is the non-described one-half mineralestate included? There appear to be no cases on point. The language of the Mother Hubbard clause may becritical. For example, if the clause merely refers to "lands owned or claimed" by the grantor, the lease mightnot cover the non-described fraction; a broader clause that states that the grantor intends to convey "all theright, title, interest, and estate in and to any and all minerals owned" by the grantor might cover thoseminerals.(88) There do not appear to be any cases on point, but Williams and Meyers suggest that, in thissituation, the language of the deed is ambiguous and extrinsic evidence should be admitted to determine theintent of the parties. There is a conflict or repugnancy between the granting clause and the Mother Hubbardclause that must be resolved. In many states, extrinsic evidence would be admitted, but in others, e.g.,Texas, which treat most written instruments as unambiguous, resort will be had to canons of construction.

Where there will be resort to interpretation, the result will depend on which canon the court chose to use.There are several that may be applicable. For example, you can construe against the scrivener, which, in thecase of most deeds, means construe against the grantor while, in the case of most leases, it means construeagainst the lessee. Or you can apply the canon that the granting clause language will prevail when it is inconflict with other clauses. Finally, you can attempt to harmonize all of the provisions, giving effect to asmuch as is possible.

§ 12.06. Recordation and Notice Problems.

The cases discussed thus far have all involved the parties to the instrument in question. As between thoseparties, Mother Hubbard clauses are enforceable; the only question is whether they will be literally or

narrowly construed. The question becomes more complicated, however, where third parties are involved. Inmost deed or lease situations, the instrument will have been recorded. This creates problems as to whethersubsequent owners are put on notice that prior deeds or leases covered tracts under the general descriptioncontained in the Mother Hubbard clauses.

An early Texas case(89) dealt with the following situation. The lessor executed a lease containing a MotherHubbard clause that covered all lands owned or claimed by the lessor in the Hollingsworth Survey. Thelessor did own non-described land within ths survey that the court found was included in the lease. The leasewas recorded. A second lease was executed allegedly covering the non-described acreage. The junior lesseeclaimed to be a bona fide purchaser for value since the prior recorded lease did not describe the contestedacreage specifically. The court rather summarily dismissed this contention based on the record of the firstlease. The court stated:

The lease to [the senior lessee] which was filed for record long before the execution of the lease to [thejunior lessee] gave notice of the intention of the parties to include in it all land owned or claimed by thelessor in the Hollingsworth Survey.(90)

This rather simple rule of constructive notice, however, ignores the reality of the general description in aMother Hubbard clause. Is a subsequent party put on notice given the fact that the nature and extent of theacreage that may be covered by a Mother Hubbard clause is unknown until such time as it may be litigatedor otherwise agreed to by the original parties?

This question has raised doubts in other jurisdictions about the nature of the notice that is provided byrecording a lease or a deed containing a Mother Hubbard clause. An early Louisiana case, United GasPublic Service Co. v. Mitchell,(91) rejected the Spear approach because of the court's concern that recordnotice was insufficient given the general language of the clause. In Mitchell, the first lease covered aspecified 112.36 acres in a governmental section and contained a general Mother Hubbard clause. The leasewas recorded and then assigned to the plaintiff. The heirs of the original lessor then executed a leasecovering a 7.35 acre tract adjoining the 112.36 acres in the first lease. This second lease was later assignedto the defendant.

The court initially noted that, had the original parties to the lease still been the owners, the 7.35 acre tractwould have undoubtedly been covered by the Mother Hubbard clause.(92) But only parties and privies aregoverned by the original lease. The court rejected the senior lessees' claim that the junior lessee was put onnotice of their claim to the 7.35 acre tract through the recording of the lease, concluding summarily:

[A] vague and indefinite description in a deed, not descriptive of any particular tract of land, is notsufficient to convey title . . ., especially as to third parties, even though it might give a right of action tocompel specific performance before the rights of third parties have intervened.(93)

The court does not state why there is no constructive notice here, although a search of the title recordswithin the specific chain of title to the 7.35 acres would not have shown the prior recorded lease of the112.36 acre tract. The court may be saying that, in the absence of actual knowledge, a subsequent purchaserfor value is under no duty to ascertain whether the grantor or lessor owns adjoining or contiguous acreagewhich might have been conveyed by a Mother Hubbard clause.(94)

Where the subsequent purchaser has inquiry or actual notice, outside of the recording system, it is clear thatshe is not a bona fide purchaser. That was the result in Sun Oil Co. v. Broadhead,(95) where the commonlessor made oral statements to the junior lessee that she had intended to convey all of her interests to thesenior lessee. The disputed tract involved a one-half mineral interest in a 7.47 acre tract which had

otherwise not been specifically described in the senior lease. The senior lease had described some 1,860acres and contained a Mother Hubbard clause conveying, "in addition, any and all land and rights andinterest in land owned or claimed by Lessor and adjacent or contiguous to the land above described."(96)

The court determined that the conversations between the common lessor and the junior lessee were"sufficient to require [the junior lessee] to inspect the [senior] lease, which was of record, to determine itseffect on the title of the minerals..."(97) The junior lessee had claimed that a search of the title based on thesectional index and the specific 7.47 acres would not have turned up the senior lease with its MotherHubbard clause. The court concludes that avoidance of the general index "was not reasonable under thepresent circumstances," suggesting that had the actual inquiry notice not been proven, there would havebeen no duty to search the general index to find the senior lease.(98)

A recent decision of the Kansas Supreme Court, Luthi v. Evans,(99) followed the Mitchell approach bylimiting the effect of the recording statutes where Mother Hubbard clauses were concerned. The instrumentconveyed working interests in seven described leases and added the following Mother Hubbard clause:

Assignors intend to convey, and by this instrument convey, to the Assignee all interest of whatsoever naturein all working interests and overriding royalty interest in all Oil and Gas Leases in Coffey County, Kansas,owned by them whether or not the same are specifically enumerated above . . ..(100)

The instrument was recorded in 1971, several days after it had been executed. The assignor also owned aworking interest in a non-described lease in Coffey County. In 1975 the assignor conveyed that interest to athird party. This third party party had conducted a title search and found nothing to indicate that the interesthad been conveyed in 1971.(101)

The court conceded that, as between the original assignor and assignee, the Mother Hubbard clause wouldhave been sufficient to cover the non-described working interest since that interest met the sole requirementof being located in Coffey County.(102) Likewise subsequent purchasers who had actual knowledge of thefirst deed with its Mother Hubbard clause would also be bound by its terms.

The more difficult issue was whether the recording of the first deed constituted constructive notice to asubsequent purchaser of an interest which would have otherwise been conveyed by a Mother Hubbardclause. After an extensive analysis of the Kansas recording statutes, the Supreme Court concluded that onlythose interests which are specifically described in a recorded deed are protected by the constructive noticeprinciple.(103)

The court was concerned that its holding would create a substantial amount of title uncertainty in all deedsor leases which contained Mother Hubbard clauses. It, therefore, recommended the following courses ofaction so that a grantee/lessee would not be divested of its ownership of lands or minerals gained through aMother Hubbard clause. It stated: "He may take possession of the property. Also, as soon as a specificdescription can be obtained, the grantee may identify the specific property covered by the conveyance byfiling an affidavit or other appropriate instrument or document with the register of deeds."(104) Since, in thiscase, there was neither subsequent recording nor actual knowledge by the subsequent purchaser, thesubsequent purchaser was treated as the owner of the lands otherwise covered by the Mother Hubbard clausein the first deed.

§ 12.07. Miscellaneous Problem Areas.

[1]--Scienter Requirement.

An issue which has been dormant for many years is whether a Mother Hubbard clause only covers lands

which the grantor/lessor has no knowledge of at the time the instrument is executed. Thus interests whicheither or both parties know about but which are omitted from the specific description clause would not passunder the Mother Hubbard clause. Dictum in early cases suggested that the clause only covered lands whichwere not known to the grantor/lessor at the time of the conveyance.(105) But, in most situations, courts havenot discussed a lack of scienter requirement and, in fact, it was clear in several cases that the grantor hadeither actual or constructive knoweldge of her ownership or claim to the non-described acreage.

This issue has recently been revived in Jones v. Colle.(106) Curry owned a fractional share of the mineralsunderlying two separate tracts. Her total mineral ownership was 49.54 mineral acres. Colle obtained areceivership lease of Curry's interest describing a conveyance of 49.54 acres but only refering to Tract I.Colle had actual knowledge that Curry owned a fractional mineral interest in Tracts I and II. Thereceivership lease also contained a Mother Hubbard clause. Curry subsequently conveyed her mineralinterests under both Tracts I and II to Jones.

Colle argued that the Mother Hubbard clause operated to lease the fractional mineral interest under Tract II.Jones argued that under the narrow interpretation rule of Smith v. Allison,(107) adding the 49.34 gross acresin Tract II to the lease was not intended by the parties.(108) The court agreed with Jones that Smithprecludes, even in the presence of other evidence, the addition of anything other than small or irregularstrips of land from coming under a Mother Hubbard clause. The court went further, however, and raised thescienter issue as an afterthought when it ended its opinion with the following statement: "Our holding inSmith precludes Colle from using the Mother Hubbard clause to secure title to the minerals in the 49.34 acreadjoining tract, the existence of which was known to both parties at the time the lease was executed."(109)

As written, the court's opinion would not allow even small strips of land to be covered by a Mother Hubbardclause where the lessor and the lessee had actual knowledge of the ownership or existence of the non-described interest. It would defeat the principal objective of the Mother Hubbard clause and, likewise, defeatthe public policy objective of avoiding separate ownership of small parcels or strips of land. It would alsoadd to the clause an additional requirement that the parties had not agreed to include since most MotherHubbard clauses make no reference to the parties' knowledge of the omitted interests.(110)

[2]--Future Acquired Interests.

In several circumstances Mother Hubbard clauses will cover lands that are not owned by the grantor/lessorat the time the conveyance is made. Depending on the language of the clause, future or after-acquired landsmay be expressly included.(111) Or these interests can be impliedly included where the clause refers to landsthat are subject to the grantor/lessor's preferential right of purchase or to ownership through adversepossession.

Where a lessor claims but does not file the appropriate legal action to secure limitation title prior to theexecution of the lease, will that adversely possessed lands be subject to the Mother Hubbard clause? In atleast one case, it has been held that the only action that must antedate the lease is the adverse possessionclaim. The fact that the quiet title action is consummated after the execution of the lease will not prevent theadversely possessed interest from coming under the Mother Hubbard clause.(112)

Louisiana has reached some inconsistent results in dealing with after-acquired lands. In several cases,Louisiana courts have held that these lands fall within the ambit of a general Mother Hubbard clause. Thus,lands inherited subsequently to the execution of a lease will be covered by a Mother Hubbard clause thatrefers to reversionary interests owned by the lessor.(113)

But in Calhoun v. Gulf Refining Co.,(114) the Louisiana Supreme Court limited the inclusion of after-

acquired mineral interests to the original grantor in the absence of express language in the clause to bindsubsequent purchasers. In Calhoun, a successor in interest to the lessor acquired a mineral interest inadjoining lands ostensibly covered by the Mother Hubbard clause. The court treated the clause as a personalagreement between the lessor and lessee which would not bind a subsequent purchaser of the lessor'sinterest.(115) The court could have treated the Mother Hubbard clause as a real covenant that would havebeen binding on assignees but chose, instead, not to do so.

[3]--Surface or Mineral Estate.

Where language in a deed is unclear as to whether it includes both the surface and the minerals, will ageneral Mother Hubbard clause operate to convey the greatest estate possible to the grantee? In Yuscavagev. Hamlin,(116) the Pennsylvania Supreme Court answered that question in the affirmative. The grantorsowned the surface and mineral estates underlying two tracts of land, except for previously reservedsubterranean coal rights. They then conveyed "all the surface and right of soil" to the grantees and madenumerous references to "said land" throughout the deed. The habendum clause contained a general referenceto the conveyance of "all the estate, right, title, and interest . . . of [the grantor]."(117) The grantors claimedthat the oil and gas interest was not conveyed. The court disagreed, relying in part on the broad language ofthe habendum clause. This is in accord with the treatment of Mother Hubbard clauses and generaldescriptions. Courts are willing to give effect to all of the terms of a deed, including those which are generalin nature to carry out the intent of the parties.

1. 1. I will refer to the clause as a Mother Hubbard clause. That is the terminology used in 1 Kuntz, The Law of Oil & Gas § 22.3(b)(1990) [hereinafter cited as Kuntz]. Cover-all clause is the term in 1 Williams & Meyers, Oil & Gas Law § 221 (1992) [hereinaftercited as Williams & Meyers]. In a basic WestLaw search using the term "mother hubbard," 83 cases were listed of which some 27constituted mineral conveyancing cases. Besides Kuntz and Williams & Meyers, there is a recent A.L.R. annotation covering MotherHubbard clauses. Construction and application of "Mother Hubbard" or "cover-all" clause in oil and gas lease or deed, 80A.L.R.4th 205 (1990).

2. 2. It is beyond the scope of this Chapter to discuss the general problems of the adequacy of descriptions, although Mother Hubbardclauses are clearly a response to the doctrines that have been applied to legal descriptions. See generally, 6A Powell, Real Property § 899 (1992); G. Thompson, Commentaries on the Modern Law of Real Property § 3022 (1962) [herinafter Thompson].

3. 3. For example, the following mother hubbard clause appeared in a 1930 era lease:

It being the intention, however, of the lessor to include within the terms of this lease not only the above described land, but also anyand all other land owned or claimed by lessor in said survey or surveys in which the above described land is situated or in adjoiningsurveys and adjoining the above described land.

Sun Oil Co. v. Burns, 84 S.W.2d 442 (Tex. Int. App. Ct. 1935). But general descriptions antedated mother hubbard clauses by manyyears. For example, in Vanmeter's Executors v. Vanmeter, 44 Va. 142 (1846), a deed description conveying all of the lands of thegrantor in Hardy County was sufficient. See also Long v. Shelton, 126 S.W. 40 (Tex. Int. App. Ct. 1910) and cases cited atThompson § 3023 n.82.

4. 4. 1 Williams & Meyers § 221.

5. 5. McRae, "Granting Clauses in Oil and Gas Leases," 2 Inst. of Oil & Gas L. & Tax'n 43, 88-91 (1951) [hereinafter cited asMcRae]. The author gives the following as an example of such a limited clause:

In the event a resurvey of said lands shall reveal the existence of excess and/or vacant land lying adjacent to the lands above describedand the lessor, his heirs or assigns, shall by virtue of his ownership of the lands above described, have preference right to acquire saidexcess and/or vacant lands, then and in that event this lease shall cover and include all such excess and/or vacant lands which thelessor, his heirs and assigns, shall have the preference right to acquire by virtue of his ownership of the lands above described as andwhen acquired by the lessor; and the lessee shall pay the lessor for such excess and/or vacant lands at the same rate per acre as thecash consideration paid for the acreage hereinabove mentioned.

Id. at 89.

6. 6. 1 Williams & Meyers § 221.

7. 1. 576 P.2d 1064 (Kan. 1978).

8. 2. Id. at 1066.

9. 3. 265 S.W.2d 686 (Tex. Int. App. Ct. 1954, writ ref'd).

10. 4. Id. at 687. See also Roeder Co. v. Burlington Northern, Inc., 716 P.2d 855, 858 (Wash. 1996) (clause read: "together withany and all other real property of every kind and nature and wheresoever situate, in which the first party has at this time or mayhereafter acquire any interest"); Texas Osage Co-op Royalty Pool v. Thomas, 270 S.W.2d 450, 453 (Tex. Int. App. Ct. 1954, writref'd n.r.e.) (clause read: "It being mutually understood and agreed that this conveyance is to cover all lands now owned by thegrantors in the above stipulated surveys whether herein properly described or not and containing 83½ acres of land, more or less.").

11. 5. "Discussion Notes," 3 O.&G.R. 1950, 1951 (1954).

12. 6. 91 F. Supp. 134 (S.D. Tex. 1950).

13. 7. Broun v. Texas & N. O. R. Co., 295 S.W. 670, 674 (Tex. Int. App. Ct. 1927, writ ref'd) defined the terms as follows: "Thatwhich is adjacent may be separated by some intervening object; that which is adjoining must touch in some part." See alsoBrotherhood Inv. Co. v. Coal River Mining Co., 46 F.2d 976, 979 (4th Cir. 1930).

14. 8. 46 F.2d at 138. As an alternative basis for its conclusion the court noted that ownership of urban lots, in the absence of thedeed to a governmental body, entails ownership to the center of the right-of-way, so that the acreage was physically adjoining, aswell as adjacent and contiguous.

15. 9. See clause cited, supra, at § 12.01 n.5.

16. 10. See Whitehead v. Johnston, 467 So. 2d 240, 241 (Ala. 1985) (lease).

17. 11. See e.g. , Dees v. Hunt Oil Co., 123 F. Supp. 58, 59 (W.D. La. 1954).

18. 12. Dennis v. Pace Petroleum Co., 230 S.W.2d 585, 588 (Tex. Int. App. Ct. 1950, writ ref'd n.r.e.). See also Ward v. Gohlke,279 S.W.2d 422 (Tex. Int. App. Ct. 1955, writ ref'd).

19. 13. United Gas Pub. Serv. Co. v. Mitchell, 177 So. 697, 698 (La. 1937).

20. 14. 467 So. 2d 240, 241 (Ala. 1985).

21. 15. Id. at 241. See also Melancon v. Melancon, 199 So. 2d 573 (La. Int. App. Ct. 1967) where the clause limited the potentialadditional acreage to acreage gained by prescription or accretion: "[The lease covers] All land owned by the Lessee[sic] in the abovementioned Section or Sections or Surveys, all property acquired by prescription and all accretion or alluvion attaching to and forminga part of said land and included herein, whether properly or specifically described or not."

22. 16. Dees v. Hunt Oil Co., 123 F. Supp. 58, 59 (W.D. La. 1954).

23. 1. Smith v. Westall, 13 S.W. 540 (Tex. 1890); Long v. Shelton, 126 S.W. 40 (Tex. Int. App. Ct. 1910). See generallyThompson, § 3023 (1966).

24. 2. 1 Williams & Meyers at § 221.

25. 3. McRae at 83-84.

4. See "Discussion Notes," 3 O.&G.R. 1950 (1954).

27. 5. 1 Kuntz at § 13.5.

28. 6. Whitehead v. Johnston, 467 So. 2d 240, 242 (Ala. 1985).

29. 7. 1 Williams & Meyers at § 221.

30. 1. 84 S.W.2d 442 (Tex. Int. App. Ct. 1935).

31. 2. 84 S.W.2d 447 (Tex. Int. App. Ct. 1935).

32. 3. 84 S.W.2d 452 (Tex. Int. App. Ct. 1935).

33. 4. Burns, 84 S.W.2d at 443.

34. 5. The court at one point stated:

It is not fairly susceptible of more than one interpetation. It not only shows, but it declares in plain and unmistakable terms, theintention of the grantor to include within the lease, not only the land particularly described, but also any other land owned or claimedby the lessor. . . .

84 S.W.2d at 444. Compare this approach with the muddled approach taken to Mother Hubbard clauses in Smith v. Allison, 301S.W.2d 608 (Tex. 1956) discussed in the text, infra, at § 12.04[2].

35. 6. Id. at 445-6. See also Sanger v. Roberts, 48 S.W. 1 (Tex. 1898).

36. 7. Id. For other early cases concluding that a general description will prevail over a specific description, see McKinney v.Raydure, 203 S.W. 1084 (Ky. 1918); Sutton Mfg., Mill, & Mining Co. v. McCullough, 174 P. 302 (Colo. 1918).

37. 8. Bennett, 84 S.W.2d at 447.

38. 9. Id. at 451.

39. 10. See the discussion of Jones v. Colle, 727 S.W.2d 262 (Tex. 1987), infra, at § 12.07[2], which elaborated on the scienterrequirement.

40. 11. Spear, 84 S.W.2d at 454.

41. 12. The court does not give the total amount of acreage leased but the 1.81 acre tract was part of a 7.81 acre tract. Id. at 456.While 1.81 acres is a small tract in absolute terms, it is nearly 25% of the total of the 7.81 tract. The court, however, gave no weightto the relatively large fractional share of the total tract represented by the non-described acreage.

42. 13. Id. at 455. The surrounding circumstances that were considered included a discussion of previous conveyances of the 7.81acre tract had always included the 1.81 acre tract. The court ignored language in the lease, however, which did describe this tract asonly containing 6 acres.

43. 14. 209 S.W.2d 381 (Tex. Int. App. Ct. 1948, writ ref'd n.r.e.).

44. 15. 230 S.W.2d 585, 588 (Tex. Int. App. Ct. 1950, writ ref'd n.r.e.).

45. 16. For other cases taking a similar approach see Farrell & Co. v. Arkansas Fuel Oil Co., 84 F.2d 887 (5th Cir. 1936); Ballard v.Stanolind Oil & Gas Co., 80 F.2d 588 (5th Cir. 1935); Alexander v. Byrd, 114 S.W.2d 915 (Tex. Int. App. Ct. 1938, writ ref'd);Mann v. Rio Bravo Oil Co., 107 S.W.2d 653 (Tex. Int. App. Ct. 1937, writ ref'd).

17. 114 S.W.2d 915 (Tex. Int. App. Ct. 1938, writ ref'd).

47. 18. Id. at 916. See also Lauchheimer v. Saunders, 65 S.W. 500 (Tex. Int. App. Ct. 1901).

48. 19. Id. at 916. The court also cites another well-used canon of construction to support its finding, namely that a deed or lease isconstrued most strongly against the grantor or lessor, who is normally the scrivener of the instrument. Id.

49. 20. 199 So. 2d 573, 576 (La. Int. App. Ct. 1967).

50. 21. Id.

51. 22. 789 F.2d 344 (5th Cir. 1986), aff'g , 602 F. Supp. 551 (M.D. La. 1984).

52. 23. The district court opinion clearly distinguished Louisiana law on Mother Hubbard clauses from Smith v. Allison, 301 S.W.2d608 (Tex. 1956), discussed at text, infra, § 12.04[2]. 602 F. Supp. at 554. Prior Lousiana decisions had uniformly treated "omnibus"clauses in deeds, such as "all of grantor's lands in X County" as being effective conveyances of all of the grantor's non-describedlands. See e.g. , Williams v. Bowie Lumber Co., 38 So. 2d 729 (La. 1948); Major v. Morgan, 408 So. 2d 923 (La. Int. App. Ct.1981); Valvoline Oil Co. v. Krauss, 335 So. 2d 64 (La. Int. App. Ct. 1966).

53. 24. 1 Williams & Meyers at § 221.3.

54. 25. 270 S.W.2d 450 (Tex. Int. App. Ct. 1954, writ ref'd n.r.e.).

55. 26. Id. at 452-53. In fact, two deeds were involved. The first would have been expanded to include an additional 247 acres,while the second would have been expanded to include an additional 339 acres.

56. 27. See also Windsor v. Loyd, 191 S.W.2d 521 (Tex. Int. App. Ct. 1945, writ ref'd) (court ignored the Mother Hubbard clause,giving predominant effect to specific description).

57. 28. 78 So. 2d 751 (Miss. 1955).

58. 29. Id. at 754. The view of Justice Gillepsie in dissent was adopted by the majority in Continental Oil Co. v. Walker, 117 So. 2d333, 338 (Miss. 1960).

59. 30. 301 S.W.2d 608 (Tex. 1956).

60. 31. Id. at 610.

61. 32. 281 S.W.2d 136 (Tex. Int. App. Ct. 1955), aff'd in part and rev'd in part, 301 S.W.2d 608 (Tex. 1956). The Court of CivilAppeals reversed the trial court judgment because the trial court looked solely at the intent of the grantor while the Court of CivilAppeals determined that the intent of the grantee was also a material factor.

62. 33. 301 S.W.2d at 611.

63. 34. 301 S.W.2d at 615-16 (McCall, J. concurring).

64. 35. This view was recently followed in The Roeder Co. v. Burlington Northern, Inc. , 716 P.2d 855, 860 (Wash. 1986).

65. 36. Smith, 301 S.W.2d at 616.

66. 37. Id. at 617.

67. 38. There was a dissent to the opinion on rehearing which treated the Mother Hubbard clause as invovling a latent as opposed toa patent ambiguity. These dissenters wanted parol evidence admitted where Justice McCall and the majority opinion on rehearingwould never admit it. Id. at 618-19.

68. 39. See "Discussion Notes," 4 O.&G.R. 1990 (1955).

69. 40. 117 So. 2d 333 (Miss. 1960).

70. 41. Id. at 338.

71. 42. 266 So. 2d 581 (Miss. 1972).

72. 43. 467 So. 2d 240 (Ala. 1985).

73. 44. See the discussion of Whitehead's use of public policy grounds at text, supra, at § 12.03[3].

74. 45. Whitehead, 467 So. 2d at 242.

75. 46. Id. at 243-44 (Jones, J. dissenting).

76. 47. 552 So. 2d 246 (Fla. Int. App. Ct. 1989).

77. 48. Id. at 247.

78. 49. The court does imply that, had the 1946 deed contained a Mother Hubbard clause, it would have been enforced, although thecourt never states that the 2.41 acres would have been included in the 1945 lease. Id. at 246.

79. 1. 9 So. 2d 648 (Miss. 1942).

80. 2. Id. at 649.

81. 3. Id. at 651-52. The court considered the construction of the instrument by the parties after its execution as evidencing an intentto lease the 10 acres otherwise excepted. The court does not expressly state why the lease is ambiguous, since in most jurisdictionsextrinsic evidence can not be admitted to show ambiguity.

82. 4. 1 Williams & Meyers at § 221.2 n.2.1; 1 Kuntz at § 22.3.

83. 5. Texas Co. v. Newton Naval Stores Co., Inc., 78 So. 2d 751 (Miss. 1955). In Newton, the express exception of an abandonedrailroad right-of-way was said to have survived a Mother Hubbard clause which included all lands claimed or owned by the lessor.There was a dissent in Newton which argued that the court's interpretation essentially neutralized the Mother Hubbard clause.Williams and Meyers argue that it would be difficult to believe that the lessor and lessee sought to not lease the minerals under aright-of-way that cut through the heart of the leased acreage. 1 Williams & Meyers at § 221.2 n.5.

84. 6. In Sun Oil Co. v. Bennett, 84 S.W.2d 447 (Tex. Int. App. Ct. 1935), the court did give effect to the Mother Hubbard clause asto a non-described parcel, but did not discuss the clause insofar as a specifically designated reserved tract was concerned.

85. 7. 1 Williams & Meyers § 221.2. The issue has not been the subject of much litigation. It was raised tangentially in Lewis v. EastTexas Finance Co. , 123 S.W.2d 803 (Tex. Int. App. Ct. 1938), rev'd, 146 S.W.2d 977 (Tex. 1941). Lewis involved a grantor whoreserved a right-of-way. The appellate court decision held that the right-of-way was not covered by the Mother Hubbard clause, butthat decision was reversed by the Supreme Court of Texas on the basis that the right-of-way only covered the surface estate and,therefore, the minerals were leased. See also Melton v. Davis, 443 S.W.2d 605 (Tex. Int. App. Ct. 1969, writ ref'd n.r.e.).

86. 8. See 1 Williams & Meyers at § 221.2 n.4.

87. 9. Id. at § 221.4.

88. 10. Id. at § 221.4 n.1.

1. Gulf Prod. Co. v. Spear, 84 S.W.2d 452 (Tex. Int. App. Ct. 1935).

90. 2. Id. at 324. A similar result was reached in Gardner v. Amerada Petroleum Corp. , 91 F. Supp. 134 (S.D. Tex. 1950), and inBarnett v. Getty Oil Co. , 266 So. 2d 581 (Miss. 1972).

91. 3. 177 So. 697 (La. 1937).

92. 4. Id. at 700. Louisiana follows a literal approach to Mother Hubbard clauses. See text, supra, at § 12.04[1].

93. 5. Id. at 700.

94. 6. Williams and Meyers argue that the onus on a purchser is not too great even if they have to go outside of their immediate chainof title to search the records of adjoining or adjacent lands. 1 Williams & Meyers at § 221.8.

95. 7. 323 So. 2d 95 (Miss. 1975).

96. 8. Id. at 96.

97. 9. Id. at 99.

98. 10. There has been no definitive ruling in Mississippi on the issue of what constitutes constructive notice by recordation. Thecited passage only implicitly supports the Mitchell approach, but in many oil and gas legal issues, Mississippi closely aligns itselfwith Texas so that the Spear approach may still be adopted should the issue arise.

99. 11. 576 P.2d 1064 (Kan. 1978).

100. 12. Id. at 1066.

101. 13. The third party purchaser apparently personally conducted the title search and paid for an abstract of title on this eighthleasehold interest. Id. at 1067.

102. 14. Id. at 1068. The court noted that Mother Hubbard clauses in deeds were relatively uncommon in Kansas but had beenenforced. It suggested that only in "death bed" siutations or where the specific information on the legal descriptions are unavailablewould the clause be enforced. Id.

103. 15. The court looked at both the recording and conveyancing statutes to support this conclusion. It was influenced by therequirement in both statutes that the land be sufficiently described. But having conceded that the Mother Hubbard clause isenforceable between the parties, the court had already determined that a sufficient description had been made. Nonetheless the courtconcluded:

A description of the property conveyed should be considered sufficient if it identifies the property or affords the means ofidentification within the instrument itself or by specific reference to other instruments recorded in the office of the register of deeds.Such a specific description of the property conveyed is required in order to impart constructive notice to a subsequent purchaser.

Id. at 1070.

104. 16. Id. at 1070.

105. 1. See Sun Oil Co. v. Bennett, 84 S.W.2d 447, 451 (Tex. Int. App. Ct. 1935).

106. 2. 727 S.W.2d 262 (Tex. 1987).

107. 3. See text, supra, at § 12.04[2].

108. 4. The intermediate appellate court decision had interpreted Smith to allow larger parcels to be covered where the intent to

include them was evident. Since the lease did accurately state the total amount of mineral acres owned under both Tracts I and II, theparties must have intended that all of the lessor's interests be leased. 709 S.W.2d 8, 10 (Tex. Int. App. Ct. 1986), rev'd, 727 S.W.2d262 (Tex. 1987).

109. 5. 727 S.W.2d at 263.

110. 6. See "Discussion Notes," 96 O.&G.R. 144-45.

111. 7. See e.g. , Dees v. Hunt Oil Co., 123 F. Supp. 58 (W.D. La. 1954) and its Mother Hubbard clause which is reproduced in thetext, supra, at § 12.02[2].

112. 8. Whitehead v. Johnston, 467 So. 2d 240 (Ala. 1985).

113. 9. Bergeron v. Amoco Prod. Co., 789 F.2d 344 (5th Cir. 1986). See also Dees v. Hunt Oil Co., 123 F. Supp. 58 (W.D. La.1954); Melancon v. Melancon, 199 So. 2d 573 (La. Int. App. Ct. 1967).

114. 10. 104 So. 2d 547 (La. 1958).

115. 11. See also Williams v. Arkansas Louisiana Gas Co., 193 So. 2d 78 (La. Int. App. Ct. 1966).

116. 12. 137 A.2d 242 (Pa. 1958).

117. 13. Id. at 244.