“Heirs and Assigns Forever” Are Words of Limitation in Texas Land Patents: Pleading a Trespass-to-Try-Title Claim Requires a Plausible Chain of Title

Introduction

In Brown v. Carrington, No. 25-40099 (5th Cir. Nov. 13, 2025) (per curiam) (unpublished), the United States Court of Appeals for the Fifth Circuit affirmed the dismissal of a pro se trespass-to-try-title action arising from an 1871 Texas land patent. Scott Brown claimed ownership of a 160-acre tract by virtue of being a seventh-generation descendant of the patentee, Zachariah Godfrey. Brown argued that the patent’s reference to “heirs and assigns forever” vested title directly in Godfrey’s descendants and that the patent itself provided sufficient title to maintain suit. He also contended that the Texas Rule Against Perpetuities does not apply to sovereign land grants, or, alternatively, that Texas’s modern extension of the vesting period to 300 years salvaged his claim.

The district court dismissed under Federal Rule of Civil Procedure 12(b)(6), holding that “heirs and assigns forever” are words of limitation conveying a fee simple to Godfrey—not words of purchase passing title to his descendants; that any contrary interpretation would run afoul of Texas’s constitutional Rule Against Perpetuities; and that Brown failed to plausibly allege a chain of title or inheritance from Godfrey to himself. The Fifth Circuit affirmed on all points, and it also resolved a threshold jurisdictional issue, holding that diversity jurisdiction was proper after the voluntary dismissal of a dispensable non-diverse party.

Summary of the Opinion

Words of limitation, not purchase: The phrase “heirs and assigns forever” in an 1871 Texas land patent is a classic formulation denoting a fee simple absolute in the patentee (Godfrey). It does not automatically vest title in his descendants. See Corine, Inc. v. Harris, 252 S.W.3d 657, 662 (Tex. App.—Texarkana 2008, no pet.); Zahn v. Nat’l Bank of Com. of Dallas, 328 S.W.2d 783, 790 (Tex. App.—Dallas 1959, writ ref’d n.r.e.).
Rule Against Perpetuities applies: Reading the patent as an enduring grant to “heirs” would violate Texas’s constitutional prohibition on perpetuities. Tex. Const. art. I, § 26. Texas’s 2021 300-year extension applies only to interests in trusts, not land patents. See Tex. Prop. Code § 112.036(c).
Pleading burden in trespass-to-try-title: Brown failed to plausibly allege present ownership. To survive 12(b)(6), he needed to connect the patent to himself via conveyance(s) or inheritance, not merely a genealogical connection.
Evidence considered on 12(b)(6): The court did not consider a discovery statement by Defendants’ expert speculating that Brown might have a “fractional” interest. Rule 12(b)(6) review is confined to the complaint and properly incorporated documents. See Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
Diversity jurisdiction: Any initial defect was cured when Brown voluntarily dismissed a dispensable non-diverse party, consistent with Caterpillar Inc. v. Lewis, 519 U.S. 61, 76–77 (1996). Allegations of diverse residency were liberally construed to establish domicile for a pro se litigant. See Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954).

Analysis

Precedents Cited and Their Influence

Hodge v. Engleman, 90 F.4th 840, 843 (5th Cir. 2024); Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Allen v. Hays, 65 F.4th 736 (5th Cir. 2023): These authorities frame the pleading standard and standard of review. The panel reaffirmed that a plaintiff must plead a facially plausible claim and that conclusory assertions do not suffice.
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996): In diversity cases, federal courts apply state substantive law and federal procedural law. This guided the panel to apply Texas property rules to interpret the patent while relying on federal pleading doctrine for the Rule 12(b)(6) analysis.
Corine, Inc. v. Harris, 252 S.W.3d 657 (Tex. App.—Texarkana 2008, no pet.); Zahn v. Nat’l Bank of Com. of Dallas, 328 S.W.2d 783 (Tex. App.—Dallas 1959, writ ref’d n.r.e.): These Texas cases state the canonical rule that “heirs and assigns” are words of limitation indicating a fee simple, not words of purchase designating grantees. They are the linchpin for rejecting Brown’s attempt to leap from Godfrey’s patent to his own title without a chain of conveyance or inheritance.
Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810); Hoofnagle v. Anderson, 20 U.S. (7 Wheat.) 212 (1822); French’s Lessee v. Spencer, 62 U.S. (21 How.) 228 (1859): The panel explained that these historic Supreme Court cases do not support Brown’s proposition. None stands for the idea that a government land patent automatically or perpetually vests title in descendants outside the ordinary conveyance or inheritance process.
Radcliffe v. Tidal Petroleum, Inc., 521 S.W.3d 375 (Tex. App.—San Antonio 2017, pet. denied): Used as a contrast example, Radcliffe shows what an heir must do—meticulously trace each link by deed or intestate succession—to prove present ownership. Brown’s complaint lacked any such chain.
Tex. Prop. Code § 22.002: Provides that certain instruments (e.g., headright certificate, land scrip) constitute “sufficient title to maintain” a trespass-to-try-title action. The panel did not interpret this as relieving Brown of the burden to plausibly connect that title to himself.
Tex. Const. art. I, § 26 (Rule Against Perpetuities): The panel held that reading the patent as a perpetual vesting in heirs is incompatible with Texas’s constitutional anti-perpetuities provision.
Tex. Prop. Code § 112.036(c): The modern extension to a 300-year vesting period applies to trust interests only. The panel rejected Brown’s attempt to use it to save a claimed property interest arising from a 19th-century patent.
Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010): Confirms the documents a court may consider at the motion-to-dismiss stage—excluding post-pleading discovery such as expert speculation.
Caterpillar Inc. v. Lewis, 519 U.S. 61, 76–77 (1996): A jurisdictional defect caused by the presence of a non-diverse party can be cured by the later dismissal of that party, allowing the case (or appeal) to proceed.
Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954): In pro se pleading contexts, specific residency allegations can be treated as prima facie domicile to support diversity.

Legal Reasoning

The court’s reasoning proceeds in three principal steps: (1) interpret the patent under Texas substantive law; (2) apply Texas’s Rule Against Perpetuities to Brown’s proposed reading; and (3) assess whether Brown’s complaint plausibly pleads title to survive Rule 12(b)(6).

Patent language—words of limitation, not purchase: The court applied Texas conveyancing doctrine to the phrase “heirs and assigns forever,” explaining that such language merely denotes the quality of the estate conveyed (a fee simple absolute), not a line of beneficiaries. This refutes the keystone of Brown’s claim—that the patent itself vested him with title as a descendant. Unless and until title passes by valid conveyance or inheritance, the mere existence of a patent naming a patentee and using the standard fee-simple formula does not invest a remote descendant with present legal title.
Rule Against Perpetuities: The panel emphasized that if the patent were construed to create a perpetual, inheritable interest directly in the patentee’s “heirs,” it would collide with Texas’s constitutional Rule Against Perpetuities. The 2021 legislative extension to 300 years does not rescue Brown’s theory because it applies only to interests in trusts. The court underscored that Brown provided no authority exempting sovereign patents from the perpetuities rule, and the one case he cited for that proposition appears to be fictitious.
Pleading a plausible chain of title: To maintain a trespass-to-try-title suit, a plaintiff must allege facts showing a superior right to possession, typically by establishing title in one of four ways recognized under Texas law, including by regular chain of conveyances from the sovereign or by properly pleaded heirship. Brown’s complaint attached the patent and allegations of descent but omitted the necessary chain linking Godfrey’s title to Brown—such as deeds of conveyance, probated wills, or intestate succession showing that intermediate heirs transferred or died in a manner passing title. The court explicitly noted the absence of allegations that Godfrey or his heirs never conveyed the property, or that all intermediate heirs died intestate, and it contrasted Brown’s showing with the comprehensive heirship proof in Radcliffe. On a Rule 12(b)(6) record, the panel considered only the complaint and its attachments; it disregarded a defense expert’s speculative discovery statement about a “fractional” interest, per Lone Star Fund.

Impact

Clarifies patent language in Texas land cases: For litigants attempting to revive ownership claims based on 19th-century patents, this decision reaffirms that “heirs and assigns forever” does not self-execute title into subsequent generations. Claimants must still demonstrate a valid chain of title or inheritance to themselves.
Reinforces the pleading burden in trespass-to-try-title suits: Plaintiffs must plead more than ancestry and an old patent; they must allege facts that make their ownership plausible, including how title traveled from the patentee to them. This will likely prompt earlier dismissals of suits premised solely on lineage.
Limits attempts to bypass the Rule Against Perpetuities: The opinion signals that Texas’s 300-year extension is narrowly cabined to trusts and cannot be repurposed to validate non-trust interests claimed under sovereign land patents.
Procedural discipline at Rule 12(b)(6): Courts will not credit discovery materials or expert speculation at the pleading stage. Plaintiffs should attach or specifically reference the chain documents they rely on; defendants can press early motions to dismiss where complaints lack that link.
Jurisdictional housekeeping: The court’s treatment of diversity jurisdiction—accepting pro se residency allegations as prima facie domicile and recognizing a cured defect after dismissing a dispensable non-diverse party—offers pragmatic guidance for managing jurisdictional hiccups on appeal.
Persuasive, though unpublished: While the opinion is not designated for publication under 5th Cir. R. 47.5, it succinctly restates settled Texas property principles and federal pleading rules. It is likely to be cited persuasively in similar heirship-based land suits.

Complex Concepts Simplified

Words of limitation vs. words of purchase: “Heirs and assigns forever” tells you the size and inheritable nature of the estate granted (a fee simple), not who specifically gets it next. Words of purchase identify the grantee (e.g., “to Alice”).
Fee simple absolute: The broadest form of ownership in land—fully alienable, devisable, and inheritable—with no inherent time limit.
Land patent: A conveyance by the sovereign (here, the State of Texas) to an initial private owner. It starts, but does not conclusively end, the chain of title; later transfers occur by deeds or inheritance.
Trespass-to-try-title: A Texas cause of action to adjudicate title and right to possession. The plaintiff must usually prove a superior title, often by a regular chain from the sovereign or a complete heirship chain.
Rule Against Perpetuities (RAP): A doctrine barring future interests that may vest too remotely. Texas embeds this in its Constitution. The modern 300-year vesting period in Texas applies only to trust interests, not to non-trust real property interests derived from a patent.
Rule 12(b)(6) materials: On a motion to dismiss, courts consider the complaint, its attachments, and documents incorporated by reference that are central to the claim—not post-pleading discovery or expert speculation.
Diversity jurisdiction and domicile: For federal subject-matter jurisdiction based on diversity, parties must be citizens of different states. Domicile is the relevant concept; in pro se contexts, specific residency allegations may be treated as prima facie domicile.
Quitclaim deed to oneself: A quitclaim transfers whatever interest the grantor has—if any—to the grantee. A deed from “Scott Brown” to “Scott Brown,” which the court dubbed “paradoxical,” adds nothing to a chain of title.

Conclusion

The Fifth Circuit’s per curiam decision in Brown v. Carrington delivers a clear message to litigants asserting title through old Texas land patents: the venerable phrase “heirs and assigns forever” is not a shortcut to present ownership. It is a descriptor of a fee simple estate in the original patentee, not a perpetual grant to descendants. Attempts to convert that language into a generational conveyance would collide with Texas’s Rule Against Perpetuities, and the state’s 300-year vesting extension offers no refuge outside trust law.

On the procedural side, the decision underscores that trespass-to-try-title plaintiffs must plead a plausible ownership chain to survive Rule 12(b)(6). Genealogy is not enough; the complaint must connect the patent to the current claimant through deeds, wills, or intestacy. Courts will police these requirements rigorously at the motion-to-dismiss stage and will confine themselves to the complaint and incorporated documents. Finally, the panel’s pragmatic resolution of diversity jurisdiction—recognizing a cured defect after dismissing a non-diverse, dispensable party—offers useful appellate guidance.

Although unpublished, this opinion cogently synthesizes settled Texas property doctrine with federal pleading standards. Its practical significance lies in deterring lineage-only land claims and in clarifying that, even with ancient sovereign grants, modern plaintiffs must still do the hard work of proving a legitimate chain of title.