As promised in our last post, here is a state-by-state review of the Duhig Rule - who has adpoted it, who hasn’t, and who might.
Texas – Duhig v. Peavey Moore Lumber Company, 135 Tex. 503, 144 S.W.2d 878 (1940) was a Texas case. As a result, producing states have Texas to thank for the Duhig Rule.
According to Duhig, if there is a reservation of a “specific interest” without mention of the prior reservation, and all parties can’t be made whole, then the grantee is made whole at the grantor’s expense. Like Oklahoma, Texas allows reformation by equity in cases involving mutual mistake. Texas does not apply Duhig to quitclaim deeds.
Arkansas – Adopted Duhig for warranty deeds, but not quitclaim deeds.
California – Has not expressly adopted Duhig. Courts in that state generally try to give effect to the intent of the parties.
Colorado – Has applied Duhig in several cases.
Kansas – Has not explicitly adopted Duhig.
Louisiana – Follows Duhig, same as in Texas.
Mississippi- Has adopted Duhig.
Montana – Has not specifically adopted Duhig, but follows the doctrine of ‘estoppel by deed.’
New Mexico – Has adopted Duhig.
New York – Has not had much case law regarding the issue, but would likely follow, as they will not limit the estate of the grantee in the subsequent conveyance.
North Dakota – Adopted the Duhig Rule for warranty deeds, but a court declined to apply Duhig when the grantee had actual notice of prior reservations – very similar to Texas.
Oklahoma – Generally follows Duhig if a “Warranty Deed reserves a specific interest without acknowledging prior reservations, then the grantee is made whole at the grantor’s expense”. However, if there is mutual mistake, then equity allows reformation of the deed.
Pennsylvania – Likely would follow Duhig.
Utah – Has not formally adopted Duhig , and it is uncertain whether a Utah court would apply it.
Wyoming – Recognizes Duhig and follows Texas.
Where did this compilation come from?
We deviate from a remorseless pursuit of personal glory to give credit to George Snell of Steptoe and Johnson. The information in this post is from a publication authored by George and Richard Rosprim of the AAPL:
Oil & Gas Law: Nationwide Comparison of Laws on Leasing, Exploration and Production by Topic (George A. Snell, III & Richard A. Rosprim, CPL, eds., 2011).
It’s an excellent publication of the AAPL, and a great resource for anyone dealing with land and title issues in multiple states.
A musical interlude to remember Phil Everly. RIP.