Associated Oil Co. v. Hart

• Decision Date: 10 December 1925
• Docket Number: (No. 526 - 4205.)
• Citation: 277 S.W. 1043
• Parties: ASSOCIATED OIL CO. et al. v. HART et al.
• Court: Texas Supreme Court

Page 1043

277 S.W. 1043

ASSOCIATED OIL CO. et al. v. HART et al.

(No. 526 - 4205.)

Commission of Appeals of Texas, Section B.

December 10, 1925.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by the Associated Oil Company and others against I. N. Hart and others. Judgment for plaintiffs was reversed and rendered for defendants in the Court of Civil Appeals (261 S. W. 506), and plaintiffs bring error. Reversed and remanded to trial court for new trial.

Burkett, Orr & McCarty, of Eastland, Baker, Botts, Parker & Garwood, of Houston, and E. F. Smith, of Austin, for plaintiffs in error.

J. Tom Higgins, of Lampasas, D. K. Scott of Cisco, and Phillips, Townsend & Phillips, of Dallas, for defendants in error.

SPEER, J.

This controversy involves the ownership of the oil, gas, and other minerals in and under the east 1/2 of the S. W. 1/4 and the N. W. 1/4 of the S. E. 1/4 of section 57, block 4, Houston & Texas Central Railway survey of lands in Eastland county. The plaintiffs in error, as plaintiffs in the trial court, sued the defendants in error to recover the title and possession of such minerals and had a judgment in that court. The Court of Civil Appeals reversed this judgment and rendered judgment for the Harts upon the ground that the reservation of the minerals under which the plaintiffs claimed was repugnant to the grant of the deed in which it was contained and therefore void. 261 S. W. 506.

The findings of fact by the trial court are set out in full in the opinion of the Court of Civil Appeals and will not be restated. It is sufficient here to say the Houston & Texas Central Railway Company is common source of title, and the plaintiffs in error by mesne conveyances are the owners of all the right, title, and interest in the minerals reserved in the deed of January 30, 1877, by the Houston & Texas Central Railway Company to Jane R. Smith; the reddendum clause thereof reading:

"It is expressly agreed and stipulated that the vendor's lien is retained until the hereinbefore described note, with interest, etc., thereon, in accordance with the tenor, effect, and reading, shall be fully paid, upon which this deed will become absolute, a strip 200 feet wide for right of way and other railroad purposes should a branch of its road be located on the premises, and all minerals in and on said land, together with the right of way for convenient access thereto, are reserved and excepted from this grant and conveyance."

It is this reservation that the Court of Civil Appeals held to be repugnant to the grant of the deed. The deed to Jane R. Smith was a grant of the land by general description and by metes and bounds "together with all and singular the rights, members, hereditaments and appurtenances to the same belonging or in anywise incident or appertaining," with general covenant of warranty, followed by the exception in the reddendum clause above quoted. The deed did not specifically grant any of the minerals.

It is elementary that the minerals in place may be severed from the remainder of the land by appropriate conveyances, and, further, it is well settled that this severance may be made by an exception or reservation in the deed. Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S. W. 296, 29 A. L. R. 607; Luse v. Parmer (Tex. Civ. App.) 221 S. W. 1031; Luse v. Beatman (Tex. Civ. App.) 217 S. W. 1096; Tiffany on Real Property, vol. 1, p. 876; volume 2, p. 1609; Thornton on Oil and Gas (3d Ed.) § 342. But this general statement is subject, of course, to the equally well settled rule stated by the Court of Civil Appeals that where a full grant of the fee in land is made in a deed by the granting clause, any reservation or exception which has the effect to destroy the fee granted is void because of the repugnancy. So, bearing in mind these two equally well established principles, we will examine the question further.

In construing a deed, like any other written instrument, the primary and all-important consideration is the intention of the parties as gathered from the instrument. Cravens v. White, 73 Tex. 577, 11 S. W. 543, 15 Am. St. Rep. 803. No extended citation of authorities is needed to a proposition so elementary. Even where different parts of the instrument appear to be uncertain, ambiguous, or contradictory, yet, if possible, the court will harmonize the parts and construe the instrument in such way that all parts may stand, and will never strike down any portion except there is an irreconcilable conflict wherein one part of the instrument destroys in effect another part. The strictness of the ancient rule as to repugnancy in deeds is now much relaxed, and the saner method is applied of permitting all parts of the instrument to stand where possible and to gather the intention of the parties from the whole instrument. See authorities cited in 18 Corpus Juris, p. 267, §§ 224 and 225. Generally of course, the parties to an instrument intend every clause in such instrument to have some effect and in some measure to evidence their agreement, and this purpose should not be thwarted except in the plainest case of necessary repugnance. In truth, a reservation or exception which is repugnant to the grant is stricken from the instrument for the sole purpose of giving effect to the evident intention of the parties to the instrument. It is an artifice or arbitrary device adopted by the courts to accomplish the wholesome purpose of giving effect to the intention of the parties as gathered from the instrument as a whole. The rule permitting this arbitrary rejection of part of an instrument does not prevail, however, where there is room for construction through reconcilement of the parts. Bearing in mind that reservations and exceptions out of the thing granted are clearly allowed, it is necessarily true, as pointed out in Cravens v. White, in the nature of things "there is more or less repugnancy in the provisions of all deeds in which a part of the thing embraced in the general description is excepted from the operation of the instrument." This statement is not absolutely accurate when technically tested, but is abundantly true according to the common understanding. Of course, in law there is no repugnancy if the reservation or exception is explicable without destroying the grant in whole or in part. It merely presents a proper case for construction. Obviously, any disregard of any portion of the deed does violence to the act of the parties in employing such language and will never be resorted to arbitrarily. See Benskin v. Barksdale (Tex. Coin. App.) 246 S. W. 360, and authorities there cited.

Bearing in mind these principles, which are universal in their application,...