Allen v. Creighton

• Decision Date: 05 July 1939
• Docket Number: No. 3502.,3502.
• Citation: 131 S.W.2d 47
• Parties: ALLEN et al. v. CREIGHTON et al.
• Court: Texas Court of Appeals

131 S.W.2d 47

ALLEN et al. v. CREIGHTON et al.

No. 3502.

Court of Civil Appeals of Texas. Beaumont.

July 5, 1939.

Rehearing Denied July 12, 1939.

Error from District Court, Montgomery County; W. B. Browder, Judge.

Suit by Gerald J. Creighton and others against A. R. Allen, the Normandie Oil Corporation and others to recover a certain royalty interest. Judgment for plaintiff against the Normandie Oil Corporation for $953.78 and against A. R. Allen for $2,905.99, and A. R. Allen brings error.

Affirmed.

T. F. Green, Jr., of Conroe, and Kenneth Krahl, Steward & DeLange, Robert P. Beman, Jr., Emory T. Carl, and L. P. Lollar, all of Houston, for plaintiff in error.

Pitts & Liles and A. W. Morris, all of Conroe, for defendant in error.

WALKER, Chief Justice.

The appeal is by writ of error but the parties will be referred to as appellant and appellee. The purpose of the suit, filed on the 16th day of February, 1938, by the appellee, Gerald J. Creighton, against appellant, A. R. Allen, was to recover the royalty interest conveyed by the following instrument:

                "The State of Texas  | Know All Men by
                                      &gt
                County of Montgomery |  These Presents
                

"That We, A. R. Allen and wife Janie Allen, of Montgomery County, Texas, for and in consideration of Ten ($10.00) Dollars and other valuable considerations to us in hand paid by Gerald J. Creighton, the receipt and adequacy of which consideration being hereby acknowledged and confessed,

"Have granted, bargained, sold and conveyed, and by these presents do hereby grant, bargain, sell, set over, convey and deliver, unto the aforesaid Gerald J. Creighton, the following described royalty interests, to-wit:

"One-eighth (1/8) of the usual one-eighth (1/8) royalty on oil and/or gas and one-eighth (1/8) of the usual 1/8 royalties on each, any, and all other minerals that are in, on, or under, or which may be produced from the following described lands situated in Montgomery County, Texas, to-wit:

"All that certain tract, piece or parcel of land lying and being situated in Montgomery County, Texas, being out of and a part of the Lemuel Smith 2/3 League of land, and being more particularly described by metes and bounds as follows:-

"Beginning at A. R. Allen's NW corner, a stake set on N boundary line of the Lemuel Smith 2/3 League;

"Thence N 56 E with the N boundary line of said Lemuel Smith League 2402.4 ft. to stake set in said league line;

"Thence S 30 E 1537.8 ft. to a stake set in Allen's S boundary line;

"Thence S 60 W with Allen's S boundary line 2396.5 ft. to stake for corner same being Allen's SW corner;

"Thence N 30 W with Allen's W boundary line 1370. ft. to the place of beginning, containing 80 acres of land, together with any and all rights of ingress and egress at all times for inspecting all operations on said lands and for removing Grantee's separate portions after same has been produced, and for gauging and investigating any and all productions and dispositions of productions therefrom.

"The said above described lands are now under a mineral lease originally executed in favor of O. Etheridge and now owned by__________. Accordingly, it is agreed that this conveyance is subject to the terms of said lease. That this conveyance covers and includes one-eighth of the one-eighth of the royalty provided for oil and/or gas, and also one-eighth (1/8) of the 1/8 of each, any, and all other royalties for each, any and all other minerals provided for in said lease.

"It is stipulated that the said Grantee shall not participate in any of the rentals payable under said leases above referred to, nor shall Grantees be entitled to participate in any bonuses to lease said lands, or any part thereof, under any future leases, but that the same shall not cover any advance royalties, and that Grantee joint execution on any subsequent lease or leases containing provisions similar to said lease now in force shall not be necessary or required.

"To have and to hold the above described mineral interest, together with all and singular the rights and appurtenances in anywise belonging, unto the said Gerald J. Creighton his heirs, executors, administrators, successors and/or assigns forever; and we, the said A. R. Allen and wife, Janie Allen, do hereby bind ourselves, our heirs, executors and administrators, to warrant and forever defend, all and singular, the said premises unto the said Gerald J. Creighton, heirs and assigns, against every person whomsoever lawfully claiming, or to claim the same, or any part thereof.

"Witness our hands at Conroe, Texas, this 23d day of Dec. A. D. 1932.

                       "(Signed) A. R. Allen         ARA
                                 "Mrs. Jannie Allen   JA."
                

On trial to a jury, judgment was in favor of appellee against appellant for the sum of $2,905.99, and against the Normandie Oil Corporation for the sum of $953.78. On the hearing on motion for a new trial, permission was denied W. R. Allen to intervene. The appeal was regularly prosecuted to this court from the judgment of the lower court.

Appellant assigns that the instrument in issue was absolutely void, on the ground that the consideration paid by appellee to appellant was "legal services rendered and to be rendered." An interest in the land described in the royalty deed in issue was outstanding in appellant's brothers; he wanted that interest conveyed to him. Judge A. W. Morris, appellee's father-in-law, was appellant's attorney; he advised appellant in the necessary legal steps to secure the transfer, and prepared for him the necessary instruments. Appellee is not a lawyer. The facts do not support the assignment. Appellee rendered no legal services to appellant; the legal services were rendered by Judge Morris. Appellee furnished appellant transportation to the homes of his brothers, and aided him, not as a lawyer but simply as his agent, in making the trade—inducing his brothers to execute the instrument. The assignment is overruled.

The second point presented is the construction of the royalty deed in issue: What interest in the royalty did this instrument convey to appellee? Appellee contends that it conveyed to him 1/8 of the 1/8 royalty interest; appellant contends that it conveyed only 1/8 of 1/8 of the 1/8 royalty interest. A royalty deed, like all other instruments of conveyance, must be construed most favorable to the grantee, as conveying to him the largest estate within the words of conveyance. 31 Tex. Jur. 630; Clemmens et ux. v. Kennedy et al., Tex.Civ.App., Texarkana, 68 S.W.2d 321, error refused; Hoffman et al. v. Magnolia Petroleum Co. et al., Tex.Com.App., 273 S.W. 828, 829. The instrument expressly conveyed 1/8 of the 1/8 royalty interest—a 1/64 interest in the oil produced; the subsequent language of the instrument, purporting to describe the interest conveyed as only 1/8 of 1/8 of the 1/8 royalty must yield to the express language of conveyance.

Since he did not operate the leased premises and did not himself produce the oil which was charged with the royalty interest, appellant contends that he cannot be held for conversion and that he is not liable to appellee for the value of the royalty interest covered by the royalty deed. This contention is denied. The value of the royalty interest in the land, including appellee's interest, was paid by check to appellant by the producing company. Appellant accepted these checks in satisfaction of the royalty interest, and endorsed them to a third party. Appellee received no part of the proceeds, and his failure to receive...