Bass v. Harper, B--1296

• Decision Date: 04 June 1969
• Docket Number: No. B--1296,B--1296
• Citation: 441 S.W.2d 825
• Parties: Thomas E. BASS, Petitioner, v. Lucille HARPER et al., Respondents.
• Court: Texas Supreme Court

Page 825

441 S.W.2d 825

Thomas E. BASS, Petitioner, v. Lucille HARPER et al., Respondents.

No. B--1296.

Supreme Court of Texas.

June 4, 1969.

Henderson, Bryant & Wolfe, William R. Bryant, Sherman, for petitioner.

O. R. Tipps, Wichita Falls, Duncan W. Holt, Jr., Tulsa Okl., for respondents.

GREENHILL, Justice.

The problem in this suit for a declaratory judgment is to determine the amount of oil and gas royalty which was conveyed from the plaintiff, Thomas E. Bass, to W. O. Miller under whom the defendant Harper claims. The trial court, sitting without a jury, held that the instrument in question conveyed, among other things not here in dispute, an undivided 2/7ths (4/14ths) of 1/8th of the royalty. The Court of Civil Appeals at Fort Worth considered that the instrument was not ambiguous, and it affirmed. 437 S.W.2d 648. We reverse and here direct the entry of judgment by the trial court that the instrument granted and conveyed a 1/14th of the 1/8th royalty.

The facts are relatively simple. The solution is not. It is agreed that the 90 acres in question had been leased for oil and gas; that the plaintiff Bass owned the surface of the land, the executive rights to execute leases, and was the owner of 8/14ths of the 1/8th royalty under the existing lease. The other 6/14ths of the royalty were owned by people other than Bass. These outstanding 6/14ths royalty interests had been specifically reserved by people who had conveyed the property to Bass.

It is the contention of Bass that he, owning 8/14ths of the royalty, conveyed a half-interest or 7/14ths; but the grant of the 7/14ths was expressly burdened with, or subject to, the 6/14ths of outstanding royalty so that the net effect was to convey 1/14th of the royalty. It is the contention of Harper that though the grant was of an undivided one-half interest (7/14ths), Bass meant to convey a half of the interest he owned; i.e., 1/2 of 8/14ths or 4/14ths; and that the mention in the grant of the outstanding 6/14ths royalty was to protect Bass upon his warranty. Harper does not contend that Bass conveyed a full undivided one-half, or 7/14ths, royalty interest.

Developing the matter more in detail, it appears that in 1957, Bass, owning the surface and 8/14ths of the 1/8th royalty, executed the instrument in question to W. O. Miller. The conveyance is on a printed form entitled 'Warranty Deed.' Its provisions are in substance as follows:

'* * * I, Thomas E. Bass, for and in consideration of $10.00 * * * have granted, and by these presents do grant, sell and convey unto the said W. O. Miller * * * all that certain undivided one-half interest in and to the following described tract of land in Cooke County, Texas.' (Then follows a metes and bounds description.)

'This Grant is subject to the Mineral Reservation contained in the following Deed(s): * * *.' (Then follows a list of nine deeds from various people to Bass in which a total of 6/14ths royalty interests had been reserved. Each of the reserving instruments had been recorded; and the conveyance from Bass to Miller gives the book and page reference of the recordations.)

'TO HAVE AND TO HOLD the above described premises * * * unto the said W. O. Miller, his heirs and assigns forever; * * *.'

Then follows a general warranty:

'* * * and I do hereby bind myself, my heirs, executors and administrators to Warranty and Forever Defend all and singular the said premises unto the said W. O. Miller, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same, or any part thereof.'

In short, the instrument from Bass to Miller on its face grants an undivided one-half interest in the 90 acres and 'this grant' was subject to mineral reservations 'in the following deeds.' The reservations in the deeds were 6/14ths of the 1/8th royalty. The instrument concludes with the warranty.

In 1958, W. O. Miller conveyed to his son, Paul, by a 'Warranty Deed,' an undivided one-fourth interest in the same property. The grant in that deed was subject to the same nine 'mineral reservations' as were contained in the grant from Bass to W. O. Miller.

In 1963, W. O. and Paul Miller joined in executing a 'Mineral Deed' to the defendant Harper. It conveyed (or purported to convey), with a covenant of general warranty, an undivided (and unqualified) one-half interest in the oil, gas and other minerals in and under the 90 acre tract. The Millers subsequently reconveyed to Bass their interest in the surface of the land. Neither W. O. nor Paul Miller is a party to this suit, and any problems between them and their grantee Harper (including the general warranty of the Millers to Harper) are not before this Court. For purposes of this opinion, it will be assumed that the defendant Harper received and owns whatever royalty interest was conveyed in the instrument from Bass to W. O. Miller.

The trial court held that the instrument from Bass to W. O. Miller conveyed to Miller a one-half interest in the surface, and this holding is not disputed. That court also held that Bass conveyed a half of the royalty which he owned. That is, Bass, who owned 8/14ths of the royalty, conveyed to Miller 4/14ths (or 2/7ths) of the royalty. The court treated the portion of Bass's conveyance which said, 'This grant is subject to the mineral reservations (of 6/14ths)' as merely protecting Bass on his warranty in the conveyance of 4/14ths royalty.

We agree with the Court of Civil Appeals that the instrument in question is not ambiguous. Since this is so, the rules of construction as to ambiguous instruments may not be applied. 2 McCormick & Ray, Texas Law of Evidence § 1685 et seq. (2nd ed. 1956). This is not a suit to reform the deed in order to make it conform to the intention of the parties, if indeed their intentions were different from those stated in the deed. ¹ The presumption is that the...