Allison v. Smith

• Decision Date: 17 June 1955
• Docket Number: No. 3177,3177
• Citation: 281 S.W.2d 136
• Parties: H. P. ALLISON et al., Appellants, v. R. E. SMITH et al., Appellees.
• Court: Texas Court of Appeals

Page 136

281 S.W.2d 136

H. P. ALLISON et al., Appellants, v. R. E. SMITH et al., Appellees.

No. 3177.

Court of Civil Appeals of Texas, Eastland.

June 17, 1955.

Rehearing Denied July 8, 1955.

Snodgrass & Smith, Neill & Lewis, San Angelo, for appellant.

Bryan, Suhr & Bering, Houston, Sentell, Rosser & Willbern, Snyder, Park & Hemphill Snyder, David W. Stephens, Fort Worth, for appellee.

GRISSOM, Chief Justice.

H. P. Allison and others sued R. E. Smith and others in trespass to try title to an undivided 1/4th interest in the minerals in the Northeast 1/4th of Section 124, Block 25, H. & T. C. Ry. Co. Survey in Scurry County and for an accounting for 1/4th of the oil produced therefrom. Plaintiffs contend that a deed from Mrs. Clark to Mrs. Neely conveyed a half interest in the minerals in the Northeast 1/4th of Section 124, although that quarter section was not specifically mentioned. See Allison v. Smith, Tex.Civ.App., 278 S.W.2d 940. In addition to a general denial and plea of not guilty, Smith answered that said deed conveyed an undivided 1/2 interest in the minerals in only the Southeast 1/4th and Northwest 1/4th of said section; that after the specific description of the land out of which a 1/2 interest in the minerals was conveyed, to-wit, the Northwest 1/4th and Southeast 1/4th, there was a general description which was intended to refer, and did refer, to the land specifically described and said deed did not convey any minerals in the Northeast 1/4th of Section 124; that, if it should be held that said description did not as a matter of law limit said conveyance to the Southeast 1/4th and the Northwest 1/4th, it was ambiguous and Mrs. Clark intended to convey and Mrs. Neely knew she was purchasing a 1/2 interest in the minerals in only the Southeast and Northwest quarters and Mrs. Clark did not intend to convey and Mrs. Neely did not purchase any interest in the Northeast 1/4th of said Section. Smith further alleged that Mrs. Neely paid Mrs. Clark an agreed consideration of $10 per mineral acre for a 1/2 interest in the minerals in the Southeast and Northwest quarters and that Mrs. Neely did not purchase and did not pay Mrs. Clark for any minerals in the Northeast 1/4th of Section 124. The Keys answered to the same effect.

In answer to the only issue submitted, a jury found that Mrs. Clark did not intend to convey to Mrs. Neely an undivided 1/2 interest in the minerals in the Northeast 1/4th of Section 124. The court rendered judgment for defendants and plaintiffs have appealed.

The judgment recites the court determined that the Clark-Neely deed was uncertain as to the land in which an undivided 1/2 interest in the minerals was intended to be conveyed; that its language was susceptible to more than one construction and the intention of the parties could not be obtained solely from the deed but must be determined from the language of the deed considered in the light of the facts and circumstances surrounding the transaction. The judgment recited said issue and answer. There followed a statement that the court, having considered the language of said deed, the facts and circumstances surrounding the transaction and the verdict of the jury, was of the opinion the law and facts were with defendants and it was, therefore, decreed that plaintiffs take nothing.

The judgment recites that Gulf Oil Corporation had paid into court $105,142.76, representing the sum accrued to said 1/4th mineral interest from October 1, 1952 to July 31, 1954 and that it was discharged from all liability 'as regard such sum' and that Smith recover $91,912.41 thereof, which represented the amount withheld during said period which had accrued to his part of the working interest in the 1/4th mineral interest, title to which had been adjudged to be in Smith, and that all sums accruing to said mineral interest after August, 1954, should be paid to Smith. It was further ordered that the Keys recover $13,130.35, which represented the amount withheld during said period which had accrued to their 1/8th royalty interest in said 1/4th mineral interest through July 31, 1954, title to which had been adjudged to be in the Keys, and that all sums accruing to such interests thereafter should be paid to the Keys.

The controlling question presented is whether said deed as a matter of law conveyed half the minerals in the Northeast 1/4th of said Section, only the Northwest 1/4th and the Southeast 1/4th being specifically described therein, and, if not, what the parties intended.

On March 27, 1941, Bertha B. Clark executed a deed which recited she had sold to Nedra Neely (1) 'an undivided 1/2 interest in and to all of the oil, gas and other minerals of every kind and character in, or under that certain tract or parcel of land situated in the County of Scurry, State of Texas, and described as follows:

(2) 'The Southeast one-fourth (SE 1/4) and the Northwest one-fourth (NW 1/4) of Section 124, Block 25, H. & T. C. Ry. Co. Surveys.

(3) 'The Grantor, her heirs and assigns, hereby reserves the exclusive right to make and execute any and all future oil and gas leases covering the herein conveyed property, or any part thereof, without being joined therein by the Grantee, her heirs and assigns, but the Grantee, her heirs and assigns shall be entitled to participate in one-half of all bonuses, rentals, royalties and other benefits accruing or to accrue under any such future leases; and in the event the lease now covering said property shall become cancelled or forfeited, then in that event, the Grantee, her heirs and assigns shall have the prior right or option to lease said property for oil and gas, within a reasonable time after cancellation or forfeiture, at a price agreeable to the parties hereto, their heirs and assigns.

(4) 'The parties however intend this deed to include and the same is hereby made to cover and include not only the above described land, but also any and all other land and interest in land owned or claimed by the Grantor in said survey or surveys in which the above described land is situated or in adjoining the above described land. Should the foregoing particular description for any reason prove incorrect or inadequate to cover the land intended to be conveyed as above specified grantor agrees to execute such instrument or instruments that may be necessary to correct such particular description.

(5) 'To Have and To Hold the said undivided interest in all of the said oil, gas and other minerals in, on and under said land, together with all and singular the rights and appurtenances thereto in any wise belonging, with the right of ingress and egress * * * and grantor herein for himself and his heirs, executors and administrators, hereby agrees to warrant and forever defend all and singular the said interest in said minerals, unto the said grantee, his heirs, successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.

(6) 'This conveyance is made subject to any valid and subsisting oil, gas or other mineral lease or leases on said land, including also any mineral lease, if any, heretofore made or being contemporaneously made from grantor to grantee; but, for the same consideration hereinabove mentioned, grantor has sold, transferred, assigned and conveyed and by these presents does sell, transfer, assign and convey unto grantee, his heirs, successors and assigns, the same undivided interest (as the undivided interest herein above conveyed in the oil, gas and other minerals in said land) in all the rights, rentals, royalties and other benefits accruing or to accrue under said lease or leases from the above described land; to have and to hold unto grantee, his heirs, successors and assigns.'

When Mrs. Clark executed said deed she owned the surface and minerals in the Northwest 1/4th and Southeast 1/4th and, also, in the Northeast 1/4th of Section 124. She also owned Sections 123 and 145 in said Block 25. All said last three mentioned tracts adjoined the land specifically described. On the same day that Mrs. Clark executed said deed she executed two oil and gas leases to Nedra Neely, one on the Northwest 1/4th and one on the Southeast 1/4th of Section 124. In each lease it was recited that for the purpose of calculating the rentals therein provided for each of said quarter sections was estimated to comprise 160 acres, 'whether it actually comprises more or less.' Said deed and two leases were executed, acknowledged before the same notary public and filed for record simultaneously.

In January, 1944, Mrs. Clark conveyed to Marvin Key the North 1/2 of Section 124 'subject to any outstanding oil, gas and mineral interest heretofore sold and conveyed and any such outstanding mineral interest is here reserved * * *.'

On June 30, 1948, Key and wife executed an oil and gas lease to R. E. Smith on the North 1/2 of Section 124, which recited it contained '320 acres more or less.' Said lease further provided that:

'In the event a re-survey of said lands shall reveal the existence of excess and/or vacant lands lying adjacent to the lands above described and the lessor, his heirs, or assigns, shall, by virtue of his ownership of the lands above described, have perference right to acquire said excess and/or vacant lands, then in that event this lease shall cover and include all such excess and/or vacant lands which the lessor, his heirs, or assigns, shall have the preference right to acquire by virtue of his ownership of the lands above described as and when acquired by the lessor; and the lessee shall pay the lessor for such excess and/or vacant lands at the same rate per acre as the cash consideration paid for the acreage hereinabove mentioned.'

On June 2, 1941, Nedra Neely and husband executed a mineral deed to Ordovician Oil Company conveying an undivided 1/4th interest in the minerals in land specifically described as the Southeast 1/4th and Northwest 1/4th of Section 124,...