(dissenting).
It is my opinion that the stipulation in the 1942 conveyance that the same is subject to the provisions of the 1933 deeds does not operate to except the land described in the earlier deeds. An exception of land described in other deeds excludes such land from the grant regardless of the legal effect of the deeds referred to. But a conveyance of land subject to the provisions of other deeds is an entirely different matter, and merely requires that the conveyance and the rights of the grantee thereunder yield and be subordinate to the legal operation and effect of such deeds.
The instrument in question purports to convey the twelve tracts of land described by metes and bounds therein, subject only to the provisions of the 1933 deeds and the life estate reserved to the grantor. Since the earlier deeds were and are void, the reference thereto in the later instrument amounts to nothing more than saying that the conveyance is “subj ect to nothing.” It is my opinion that this is exactly what the grantor intended to say in the event it should be determined that the prior deeds were ineffectual to pass title.
The phrase “subject to” means “subordinate to” or “burdened with.” The term frequently appears in conveyances as part of a reference to an encumbrance, lease or other instrument which operates to burden the estate conveyed. A stipulation that the conveyance is subject to the provisions of an earlier deed does not say, either expressly or by implication, that the property described therein is excepted from the grant. The title and estate which the former deed was effective to convey does not pass by the later deed, not because there was an exception from the grant but because the grantor does not own and cannot convey the same. The reference to the earlier deed merely gives the grantee notice of its existence and obligates him to take the property burdened with its provisions, thereby protecting the grantor on the warranty. It is customary and appropriate, therefore, to convey land subject to the provisions of another deed when: (1) the instrument referred to conveys or reserves a life estate or other interest which constitutes a burden on the title conveyed by the later deed, or (2) there is any doubt as to the legal effect of the earlier conveyance.
When a person wishes to convey land but is doubtful as to the validity or effect of an earlier deed to part or all of the land, an exception of the property described in the prior deed would prevent the accomplishment of his purpose to convey the same if he has the power to do so. But the omission of any reference to the earlier deed would render the grantor liable on the warranty in the event his title was impaired thereby. It is customary under these circumstances to insert a stipulation that the conveyance is subject to the provisions of the prior deed. The grantee is thus given the benefit of a conveyance of the land as distinguished from a mere quitclaim, but must take his chances on the validity and effect of the former deed. All of the title which the *676grantor owned or had the power to convey passes under the conveyance, but there is no liability on the warranty for any impairment of title resulting from the prior conveyance.
The record discloses that Mrs. Lowe did not know that the earlier deeds were valid and did not know that they were void, but that there was a serious question in her mind as to their legal effect. Her doubts in this respect are evidenced by the provision made in her will, executed on the same day as the 1933 deeds, for the disposition of the three 106-acre tracts “in the event said deeds, or any of them, fail for any reason.” Since she was uncertain as to the effect of the earlier deeds, it is clear that the “subject to” provision was inserted in the 1942 deed only for the purpose of showing that the property described in the former deeds had passed under their provisions if such instruments were valid, and not for the purpose of excepting the land described therein.
The majority reason that since the transactions were family gifts from the same grantor to the same grantees, it is speculative to assume that the grantor was so concerned about a possible liability for nominal damages under her warranty that she felt it necessary to protect herself by the provision in question. The conclusion that there would have been only nominal liability for a breach of the warranty is in itself somewhat speculative. The 1942 deed recites that the grantees had paid a valuable consideration, and there is no direct evidence that no consideration was paid. As pointed out in the majority opinion, the finding of the trial court that the deed was a gift must be supported, if at all, by the provisions of the will of J. W. Lowe and the 1933 deeds and the close relationship of the parties. Even if we assume that the deed was a gift and that Mrs. Lowe would not have been liable for breach of warranty, this affords no basis for according to the provision in question any unusual meaning. A careful conveyancer does not consider the extent of the grantor’s liability on the warranty in determining whether to insert provisions which will preclude any question of liability.
The conclusion of the majority that the 1942 deed was drawn by an experienced conveyancer is undoubtedly sound. The instrument clearly reveals that it was prepared by a person conversant with the forms of conveyances and the meaning and usage of legal terms. Knowledge of the customary manner of expressing an exception was not entirely lacking, because the words “save and except” were used in excluding two small tracts from the grant. Since no decision has been found which holds that a recital making a conveyance subject to the provisions of an earlier void deed will exclude from the grant the land described in the prior deed, I am persuaded that an intention to except from the 1942 deed the land described in the 1933 instruments would have been expressed in some manner other than by simply making the conveyance subject to their provisions. The majority recognize that better words might have been used to state an exception, but argue that the language used might well have been avoided unless an exception was intended. This can best be answered by asking what more appropriate language could have been used to express an intention to protect the grantor on the warranty if the 1933 deeds were valid, but not to except the property described therein if the same were void.
The words of a deed must be given their usual and customary meaning unless-a contrary intent clearly appears, and there is nothing in the 1942 deed to justify our according to its language any unusual or unconventional meaning. See 26 C.J.S., Deeds, § 86, p. 832. While the use of specific technical words is not necessary to create an exception, the intent to do so must be clearly disclosed. And as a general rule an exception will not be implied except in case of necessity. See 26 C.J.S., Deeds, § 138, p. 1001. Nowhere in the 1942 deed can be found a clear ex*677pression of ah intention to except from the grant the land described in the 1933 deeds, and it is my opinion that the majority holding creates and recognizes an exception by implication.
In support of their conclusion, the majority cite and rely upon Loeffler v. King, 149 Tex. 626, 236 S.W.2d 772; McMullan v. San Antonio Joint Stock Land Bank, Tex.Civ.App., 78 S.W.2d 669 (wr. ref.); J. P. Wooten Motor Co. v. First State Bank of Swenson, Tex.Com.App., 281 S.W. 196; and Rice-Stix Dry Goods Co. v. First National Bank of McGregor, Tex.Com.App., 231 S.W. 386. While the principles of law announced and applied in these cases are sound, it is my view that they have no application here. The Wooten case holds that when a purported deed of trust is ineffective because of the homestead character of the property, the mortgagors’ grantee who neither assumes nor takes the property subject to the encumbrance may set up its invalidity. But if the parties to the deed agree that the grantee shall take the land burdened with the encumbrance, the lien becomes enforceable against the property in the hands of the grantee and his assigns, and the McMullan and Rice-Stix cases so hold. The same principle is recognized and applied in the Loeffler case, where an expired oil and gas lease was held to have been ratified and revived by a stipulation in a royalty deed that the land was under such lease.
In each of these cases, there was no defect in the form or manner of execution of the deed of trust or lease. The instrument was unenforceable against the land solely because the property was, in the hands of the mortgagors, constitutionally immune from the encumbrance or because the lease had expired under its own terms. Under these circumstances the parties to the deed were free to contract that the mortgage or lease should thereafter be valid and effective with respect to .the property conveyed. The cited cases recognize this right and hold that a conveyance of land subject to such a mortgage or lease amounts to an agreement that the property conveyed shall thereafter be burdened with the provisions thereof or estops the grantee to deny its validity. The net result is to enforce against the land, in accordance with the agreement of the parties, all of the terms and provisions of the instrument referred to, which is a far cry from the majority holding in this case.
The majority conclude, upon the authority of the cited cases, that by accepting the 1942 conveyance subject to the provisions of the 1933 deeds, the grantees assumed an obligation to respect the earlier instruments and cannot now be heard to urge their invalidity. It is difficult to find in this reasoning any support for the majority holding, which neither respects nor upholds the 1933 deeds but strikes them down and permits the title to the 318 acres described therein to pass and vest under the will of J. W. Lowe.
The question here presented is, of course, quite different from that involved in the mortgage and lease cases. The 1933 deeds are testamentary in character and are not so executed as to constitute a valid will. They are void and unenforceable and cannot he rendered valid and enforceable by either contract or estoppel. We are not concerned, therefore, with the question of whether the grantees obligated themselves to respect the earlier deeds or are now estopped to urge their invalidity. The narrow question before us is whether Mrs. Lowe intended to except from the 1942 deed the land described in the 1933 instruments. And the decisions mentioned above do not hold or support a holding that a conveyance subject to the provisions of another instrument constitutes an expression of intention to except the land described in the latter.
The majority reason that if the land described in the 1933 deeds is permitted to *678pass under the 1942 deed, the grantor’s intent to preserve the limited estates created by the earlier deeds will be defeated. This assumes that in 1942 Mrs. Lowe still wanted the 318 acres to pass only in the estates and subject to the limitations created by the provisions of the 1933 instruments, although it is quite evident that she had concluded that the remainder of the land should pass and vest in the estates created by the provisions of the 1942 deed. It is more reasonable to assume that during the period of nine years her views as to the estates which should be conveyed to the nephews had changed, and that if she could undo the 1933 deeds (she had expressly reserved the power of disposition therein) or if the same were invalid for any reason, it was her intention and desire to convey all of the land in the estates vested in the grantees by the 1942 deed.
If all of the provisions of the instrument in question are given their usual meaning and effect, it is clear that Mrs. Lowe’s paramount intention in 1942 was that all of the land affected by her husband’s will should vest in the nephews in accordance with her directions in the exercise of the power of disposition conferred upon her by the will, and not in the estates and subject to the limitations created by such will. The majority opinion converts the “subject to” provision into an exception on the theory that the grantor intended that the three 106-acre tracts should pass under the 1933 deeds, and then holds that since the earlier instruments are void, the title to the three tracts passes under the devises made by the will of J. W. Lowe. The ultimate effect is to accord to Mrs. Lowe an intention that the 318 acres should vest in the grantee under the 1933 deeds if valid, but otherwise in the estates and subject to the limitations created by the will. It is impossible to find in the 1942 deed any expression or indication of such an intention.
It is my opinion that the majority holding is contrary to the plain provisions of the 1942 deed and defeats the paramount purpose and intention of the grantor at-the time the same was executed. I would reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.