What is the Duhig rule?

A rule of estoppel by deed. When a warranty deed grants and reserves more mineral interest than the grantor actually owned, the shortfall is charged against the grantor's reservation rather than against the grantee. The grantee receives the full interest the deed appeared to convey and the grantor keeps whatever remains, which is frequently nothing. It takes its name from Duhig v. Peavy-Moore Lumber Co., decided by the Supreme Court of Texas in 1940.

What is an overconveyance of a mineral interest?

A deed that, read as a whole, purports to grant and reserve more mineral interest than the grantor owned. It usually happens when a grantor reserves a fraction of minerals without accounting for a reservation someone made earlier in the chain, so the grant plus the reservation add up to more than one hundred percent of what was available.

When does the Duhig rule not apply?

It generally does not apply to quitclaim deeds, because there is no warranty to be estopped by. It does not apply where the deed discloses the outstanding prior interest, for example through subject to language, because the grantee was told what was already outstanding. It cannot fully cure a shortfall larger than the reserved interest, and some states decline to apply it where the grantee had actual notice or will reform the deed for mutual mistake instead.

Which states follow the Duhig rule?

It originated in Texas and has been applied in most producing states, including Oklahoma, Louisiana, New Mexico, North Dakota, Arkansas, Colorado, Mississippi and Wyoming. Kansas, Montana, Utah and California have not clearly adopted it by name and tend to analyze the same facts through the intent of the parties or general estoppel principles. Treatment and exceptions vary enough that state specific advice is necessary.

The Duhig Rule and Overconveyance of Mineral Interest

Short version: when a warranty deed grants and reserves more mineral interest than the grantor actually owned, the shortfall comes out of the grantor's reservation first. The grantee is made whole. The grantor keeps whatever is left, which is frequently nothing.

How an overconveyance happens

The arithmetic is simple enough that it is easy to do wrong, which is why it has happened in tens of thousands of deeds.

Take the classic sequence:

A owns the land and all of the minerals. A conveys the land to B, reserving one half of the minerals. B now owns the surface and one half the minerals. A owns one half.
B later conveys the land to C by warranty deed, reserving one half of the minerals.

B's deed to C says two things at once. It grants the property, which the deed implies carries the minerals with it. And it reserves one half. Read together, the deed purports to hand C one half and keep one half. But B only had one half to work with.

Somebody is going to be short by one half. The Duhig rule decides who.

What the rule actually does

It is estoppel by deed. Having warranted the grant, B is not permitted to keep a reserved interest while the grantee goes short. So the shortfall is charged against the reservation first: C gets the full one half the deed appeared to promise, and B keeps nothing.

The name comes from Duhig v. Peavy-Moore Lumber Co., decided by the Supreme Court of Texas in 1940 on essentially those facts. The reasoning has since been applied in most of the producing states, including Oklahoma, Louisiana, New Mexico, North Dakota, Arkansas, Colorado, Mississippi and Wyoming. Kansas, Montana, Utah and California have not clearly adopted it as such, and courts there tend to reach the question through intent of the parties or a general estoppel analysis instead. Treatment varies enough that this is genuinely a question for a title attorney in your state rather than for a website.

When Duhig does not apply

The rule is narrower than it first sounds, and most of the arguments in a real dispute are about whether you are inside it at all.

Quitclaim deeds. A quitclaim conveys whatever the grantor happens to own and warrants nothing, so there is no warranty to be estopped by. Texas and Arkansas both exclude quitclaims expressly.
Deeds that disclose the outstanding interest. If the deed says it is subject to a prior mineral reservation, or otherwise tells the grantee what is already outstanding, the grantee cannot claim to have been promised more. This is the single most common escape hatch, and it is why "subject to" language matters so much.
Where the reservation cannot cure the shortfall. Duhig charges the deficiency against the reserved interest. If the reserved interest is too small to cover it, the rule cannot fully solve the problem, and what happens next depends on the state.
Where the deed's intent is plain. Some courts, Oklahoma among them, will reform a deed for mutual mistake rather than apply the rule mechanically.
Actual notice. North Dakota, for one, declines to apply the rule where the grantee actually knew about the prior reservation.

How to spot a Duhig problem in your own chain

You do not need to be a title examiner to run the first check. You need the deeds and a piece of paper.

List every conveyance in order, from the earliest full mineral owner down to you.
After each one, write down two numbers: what the grantee got, and what the grantor kept. They must add to what the grantor had going in.
Find the deed where they do not. That is your overconveyance, and the interest of everyone downstream of it depends on how it is resolved.
Check for "subject to" language in that deed. Its presence or absence is usually the whole case.

The symptom that brings people to this page is almost always the same: a division order arrives with a decimal smaller than the family always believed, or two branches of a family are told different things by the same operator. Somewhere upstream, a deed promised more than it could deliver.

What to do about it

If the interest matters, this is attorney work. A title opinion resolves it, and in a serious dispute a quiet title action settles it for good. What you should not do is sign a division order that ratifies a decimal you believe is wrong, or sell an interest into an unresolved overconveyance without understanding which side of it you are on.

If you are wondering whether it is worth the trouble, that is a question about the value of the interest, and we will help you work that out at no cost and with no obligation. See division orders for what you are actually signing, and complaints and disputes for how these usually surface.

Send us the deeds and we will map the chain.

We do title work every day, and we will tell you what we see for free, whether or not you ever sell anything to us. If it looks like a real overconveyance we will tell you that too, and we will tell you to get an attorney rather than pretending a landman can fix it.

Ask a Landman Get a Free Valuation

Division orders, and what your decimal means
Fixed versus floating NPRI, the other great fraction problem
Depth severance, where minerals are split vertically instead
Non-participating royalty interest
Inherited mineral rights and transferring them
The mineral glossary

Berlin Royalties is a mineral buyer and a landman shop in Tulsa, not a law firm. This page describes a doctrine in general terms and is not legal advice about your deeds. Duhig is applied differently from state to state and the exceptions decide most real cases, so get a title attorney in the state where the minerals sit.

The Duhig rule and overconveyance of mineral interest