Harris v. Windsor
| Decision Date | 24 October 1956 |
| Docket Number | No. A-5405,A-5405 |
| Citation | 294 S.W.2d 798,156 Tex. 324 |
| Parties | A. G. HARRIS, Petitioner, v. W. C. WINDSOR, Respondent. |
| Court | Texas Supreme Court |
Mahlon L. Walters, Jefferson, Woodrow .h. Edwards, Mt. Vernon, Fulton, Hancock & McClain, Gilmer, for petitioner.
Will Mann Richardson, Tyler, for respondent.
The trial court rendered a summary judgment in favor of respondent, W. C. Windsor, in his suit against petitioner, A. G. Harris, in trespass to try title to an undivided 3/8ths of the minerals in and under a tract of land in Marion County, which judgment was affirmed by the Court of Civil Appeals. 279 S.W.2d 648. There was an alternative plea for the reformation of a deed from respondent to petitioner, but under our view of the case the question of reformation is not reached.
The application for writ of error contains but two points. The first point complains of the summary judgment upon the ground that issues of fact were raised, in that (a) respondent failed to establish that the tract of land involved was the identical land described in a deed from G. W. Liverman to L. M. Tems, hereinafter referred to, and (b) respondent failed to show a connected title from the sovereignty of the soil to himself or to establish title from a common source. The point was not raised in the trial court, in petitioner's brief as appellant in the Court of Civil Appeals, or in his motion for rehearing in that court. It is presented for the first time in this court, and cannot, therefore, be considered. Rule 469(c), Texas Rules of Civil Procedure; Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979; East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613.
Point No. 2 presents the decisive question in the case. It calls for the construction of a deed from respondent, Windsor, to petitioner, Harris, dated March 15, 1944, conveying the tract of land involved in this litigation. Following the description by metes and bounds, the deed contained this recital:
'And being the same land described in Warranty deed from the The Federal Land Bank of Houston to W. C. Windsor, recorded in Vol. X-2, Page 119, Deed Records of Marion County, Texas, reference to which is made for all purposes.'
Following that reference, the deed contained this provision:
'There is, however, Expressly Excepted from this conveyance and Reserved by the said W. C. Windsor, an undivided Three-Eighths (3/8ths) interest in and to all of the oil, gas and other minerals in and under and that may be produced from the above described premises, together with the right of ingress and egress for the purpose of mining, marketing and transporting the same.'
The deed from The Federal Land Bank of Houston to W. C. Windsor, referred to above, contained these provisions:
'The terms of General Warranty herein contained are subject to all restrictions and reservations contained in that certain deed executed by G. W. Liverman in favor of L. M. Tems, dated November 12, 1923, and recorded in Volume 'V-1', page 188 of the Deed Records of Marion County, Texas, to which said deed and the record thereof reference is hereby made for all legal purposes.'
'The Federal Land Bank of Houston does bind itself, its successors and assigns to Warrant and Forever Defend all and singular the said premises unto the said W. C. Windsor, his heirs and assigns, against every person whomsoever lawfully claiming, or to claim the same, or any part thereof, in so far as the surface and one-half (1/2) interest in the oil, gas and other minerals in, to, on and under and that may be produced from the above described land are conserned, and no further.'
In the deed from Liverman to Tems, referred to above, Liverman reserved one-half the minerals in and under this tract of land. It is thus disclosed that when respondent, Windsor, executed the deed to petitioner, Harris, he owned but one-half the minerals in and under the land. That he meant to reserve to himself three-eighths of the minerals and convey to Harris the surface and one-eighth of the minerals is made certain by the testimony of Harris himself, outlined in the opinion of the Court of Civil Appeals. If the deed is of doubtful meaning, the evidence clearly made a prima facie case for its reformation. However, both courts below have held that the deed is not ambiguous, and that when properly construed its effect was to reserve to Windsor three-eighths of the minerals and convey to Harris the surface and one-eighth of the mainerals. We have concluded that the deed has been correctly construed below.
Under the construction placed upon the deed by petitioner, respondent reserved nothing to himself, but conveyed to petitioner all of his one-half of the minerals and also an additional one-eighth which he did not own, thereby subjecting himself to an action for damages for breach of warranty, which...
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...ascertained, prevails over arbitrary rules. Garrett v. Dils Co., 157 Tex. 92, 299 S.W.2d 904, 906 (1957)(quoting Harris v. Windsor, 156 Tex. 324, 294 S.W.2d 798, 800 (1956)). Every presumption should be indulged to reach the conclusion that some interest should be passed by a deed. Coker v.......
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...the intent of the parties to the instrument. Garrett v. Dils Company, 157 Tex. 92, 299 S.W.2d 904 (1957); Harris v. Windsor, 156 Tex. 324, 294 S.W.2d 798 (1956); Worley v. Empire Gas & Fuel Co., 129 Tex. 532, 103 S.W.2d 368 (1937). That intention is to be gathered from the language used in ......
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...centering about the use or application of rules of construction of deeds applicable in Texas to other contracts. See Harris v. Windsor, 1956, 156 Tex. 324, 294 S.W.2d 798; 14-B Tex.Jur., Deeds §§ 124, 125. Camco urges the rule or canon that favors the granting clause at the expense of other......
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...interest by language such as "reference to which is made [Page 3-54] for all purposes" or "for all legal purposes." Harris v. Windsor, 294 S.W.2d 798 (Tex. 1956). A grantee in a deed will be bound by the deed's contents, including a reference to a disputed prior reservation of minerals, and......
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...include in the excepting language the phrase "for all purposes" to obtain the maximum benefit from the exception. Harris v. Windsor, 156 Tex. 324, 294 S.W.2d 798 (Tex. 1956); 4 O&GR 1547 and 6 O&GR 1234. The careful draftsman should also remember the distinctions between an exception and a ......
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...Title in Texas — Part I, 20 Sw.L.J. 97 (1966) and Part II, 20 Sw.L.J. 310 (1966); also, see Note 99. [125] Harris v. Windsor, 156 Tex. 324, 294 S.W.2d 798 (Tex. 1956); 4 O&GR 1547 and 6 O&GR 1234. [126] Pich v. Lankford, 157 Tex. 335, 302 S.W.2d 645 (1957). [127] Benge v. Scharbauer, 152 Te......
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CHAPTER 2 CONSTRUCTIVE NOTICE: A MULTI-STATE PERSPECTIVE
...include in the excepting language the phrase "for all purposes" to obtain the maximum benefit from the exception. Harris v. Windsor, 156 Tex. 324, 294 S.W.2d 798 (Tex. 1956); 4 O&GR 1547 and 6 O&GR 1234. The careful draftsman should also remember the distinctions between an exception and a ......