Scholz v. Heath, 10-81-043-CV
| Decision Date | 08 November 1982 |
| Docket Number | No. 10-81-043-CV,10-81-043-CV |
| Citation | 642 S.W.2d 554 |
| Parties | Lester SCHOLZ and Clarence W. Scholz, Appellants, v. Inez HEATH, Individually and as Independent Executrix of the Estate of John A. Heath, Deceased, et al., Appellees. |
| Court | Texas Court of Appeals |
This declaratory action was brought to resolve a three-party dispute over the ownership of a royalty interest in lands conveyed and reserved in a 1971 general warranty deed, hereafter referred to as the Scholz deed. The Scholz deed, conveying 395.7 acres of land which consisted of two tracts, a 312.2 acre tract and a 83.5 acre tract, contained the following reservation:
SAVE AND EXCEPT from this conveyance one-half ( 1/2) of the royalty in the oil, gas, and other minerals in and under said tracts of land in the manner and according to the terms in a deed from Martin Standley and wife, Bernice Standley to John A. Heath, dated April 24, 1958 of record in Vol. 125, pg. 93, Deed Records of Madison County, Texas.
The Grantors herein John A. Heath and wife, Inez Heath, reserve unto themselves, their heirs and assigns one-half ( 1/2) of all the oil, gas, and other minerals in and under the above described tracts of land. It is the intent of the Grantors herein to convey to Grantees one-half ( 1/2) of the oil, gas and other minerals in and under said tracts of land and to reserve unto themselves one-half ( 1/2) of the oil, gas and other minerals in and under said tracts of land, and no royalty interest is herein conveyed, one-half ( 1/2) royalty having heretofore been reserved in the instrument above mentioned from Martin Standley et ux to John A. Heath. Grantors herein reserve unto themselves the use and benefit of the dwelling house on said premise from July 20, 1971 until January 19, 1972, same being a six (6) month period.
Grantees Lester and Clarence Scholz (hereafter called Scholz) brought suit against Grantor Inez Heath, individually and as the independent executrix of her husband's estate, who counter-claimed, advancing and seeking her interpretation on the construction of the mineral and royalty reservation. Intervenors, Shirley Ann Standley Bennett and Martin Standley, Jr. filed their plea in intervention, claiming a royalty interest in the 83.5 acre tract by virtue of being the successors to Heath's predecessor-in-title, Mr. Standley, Sr.
After a non-jury trial, the court declared Scholz as owner of all the surface estate and one-half of the mineral estate which included a one-half royalty interest; Heath as the owner of a one-half mineral estate inclusive of a one-half royalty interest; and the intervenors as owners of no interests in the land.
All parties appealed, and by order of this Court, the appeals were consolidated. Scholz appeals on three (3) points of error, claiming ownership to all of the mineral interests. Heath, in his thirteen (13) points of error, contends the Scholz deed vested in Scholz a one-half mineral interest, stripped of all royalty interest. The intervenors assert ownership of a royalty interest reserved in a prior deed.
The trial court filed its findings of fact and conclusions of law pursuant to Rule 297, Tex.Rules Civ.Proc. The trial court found that prior to September 26, 1953, Standley, Sr. owned both tracts of land in fee. On that day, Standley, Sr., acting as president and agent of Standley Motors, Inc., a Texas Corporation wholly owned by him, conveyed by a general warranty deed the 83.5 acre tract to a Mr. Stewart. The deed reserved an undivided 1/2 non-participating royalty interest to Standley Motors, Inc. On May 1, 1954, Mr. Stewart and his wife conveyed the tract by a general warranty deed to Standley, Sr. as an individual. Heath acquired title to both tracts from Standley, Sr., et ux, by a general warranty deed, dated April 24, 1958. The Heath deed did not expressly except the prior Standley Motors reservation, but it did refer to the Stewart-Standley, Sr. deed in its general description of the second tract of land. The deed expressly reserved a 1/16th non-participating 20-year term royalty interest in Standley, Sr. and provided if a commercial production of oil was being produced at the end of the 20 years, the reservation would continue as long as the commercial production continued.
Standley, Sr. was divorced on September 24, 1959, and was awarded all the personal and real property of Standley Motors, Inc. The corporation was dissolved on December 16, 1959 and its assets passed to Standley, Sr. as the sole stockholder. Scholz and Heath executed the Scholz deed on July 16, 1971. In 1978 on the 24th of April, Standley, Sr.'s term royalty lapsed due to the lack of oil and gas production.
In his first and third points of error, Scholz does not contest the trial court's findings of fact, but complains of the court's failure to make additional findings. Scholz did not make a request for additional findings in accordance with Rule 298, Vernon's Tex.Rules Civ.Proc. Not having properly requested the findings, Scholz cannot now be heard to complain of the trial court's failure to make the additional findings. Tidwell v. Lange, 531 S.W.2d 384 (Tex.Civ.App.--Waco 1975, no writ). Points of error 1 and 3 are overruled.
Scholz's point of error 2 contests the trial court's finding that the grantors retained a one-half mineral and royalty interest. Scholz contends, at the time the Scholz deed was executed, Heath only owned a one-half mineral interest which he conveyed to Scholz and a possibility of reverter in the Standley, Sr. royalty reservation. When the reservation lapsed, Scholz claims the interest vested in him due to a doctrine expressed in Ladd v. Du Bose, 344 S.W.2d 476 (Tex.Civ.App.--Amarillo 1961, no writ). In Du Bose, the issue was whether the grantors or grantee owned a one-fourth mineral interest that reverted at the termination of a term reservation which was made in a prior conveyance. The court found that the grantors held a possibility of reverter in the one-fourth mineral interest at the time of the conveyance, but failed to reserve the interest in the grantee's deed. Therefore, the grantors conveyed the possibility of reverter to the grantee which reverted upon termination of the determinable fee to the grantee. Contrary to Du Bose, the grantor in the instant case, expressly excepted the Standley term reservation in the Scholz deed. An interest excepted from a grant is excluded from the grant and does not pass to the grantee. Martin v. Schneider, 622 S.W.2d 620 (Tex.App.--Corpus Christi 1981, no writ); York v. Kenilworth Oil Co., 614 S.W.2d 468 (Tex.Civ.App.--Waco 1981, writ ref'd, n.r.e.). In 1978, when the 20 years terminated, the royalty could not pass to Scholz, but vested in Heath. Scholz's point of error 2 is overruled.
Heath's first point of error contends the trial court erred in admitting parol evidence to interpret an unambiguous deed. The record reveals the trial judge found the Scholz deed to be ambiguous and...
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