Cannon v. Wingard

• Decision Date: 16 March 1962
• Docket Number: No. 15952,15952
• Citation: 355 S.W.2d 776
• Parties: W. W. CANNON, Appellant, v. Reese WINGARD et al., Appellees.
• Court: Texas Court of Appeals

Page 776

355 S.W.2d 776

W. W. CANNON, Appellant, v. Reese WINGARD et al., Appellees.

No. 15952.

Court of Civil Appeals of Texas, Dallas.

March 16, 1962.

Rehearing Denied April 13, 1962.

Townsend & Townsend, dallas, for appellant.

Leslie Jackson, Shank, Irwin & Apeland, Dallas, for appellees.

YOUNG, Justice.

The suit in trial court was to cancel an alleged 'mineral lease,' evidenced by three instruments, to-wit, a regular oil and gas lease, primaty term 10 years, and two mineral deeds, contemporaneously executed on April 22, 1947 as part of the same transaction, between the same parties, and for removal of cloud from title; also to cancel two subsequently executed mineral deeds from Mrs. Wilkerson to the Johnstons, conveying an interest in the minerals involved in the earlier dated transaction. W. W. Cannon, appellant, had intervened, having purchased the land from original plaintiffs, Mrs. Myrtle Weaver Lowe and her sister Miss Lula Weaver, and adopted their pleading. The defendants are Reese Wingard, of Eugene, Oregon, Mr. & Mrs. A. L. Wilkerson and W. N. Jones of Forest, Mississippi, and two others cited by publication. the land involved is approximately 300 acres in form of a square situated in Young County, Texas.

In December 1960 defendants filed joint motion for summary judgment, basing same on the three instruments above mentioned, dated April 22, 1947, the stipulations of fact: deposition of Lula Weaver and pleadings of the parties. Intervenor Cannon likewise filed motion for summary judgment on the same instruments, stipulations, deposition and pleading; and additionally the deed from Lula Weaver to W. W. Cannon and deeds to the two Johnstons, cited by publication; both parties (intervenor and defendants) alleging the existence of no genuine issues of fact. The trial court upon hearing entered a judgment granting defendants' motion and denying appellant's motion, holding that the oil and gas lease had expired in accordance with its terms but that the two mineral deeds were valid and subsisting; decreeing that intervenor, Cannon, take nothing by his suit, followed by this appeal.

Material hereto are paragraphs three through seven of the stipulations of fact, to-wit:

'III.

'As means of shortening the record of this case, it is agreed that prior to and on April 22, 1947, Mrs. Myrtle W. Lowe, a widow, and Lula S. Weaver, a feme sole, owned in fee simple absolute, in equal shares, T. E. & L. Survey No. 200, Abstract No. 447, Young County, Texas, subject to oil and gas lease dated April 26, 1944, covering the North one-half of T. E. & L. Co. Survey No. 200, Abstract No. 447, which lease is recorded in Volume 206, Page 122, of the Deed Records of Young County Texas, and which lease on April 22, 1947, was owned by Warren Oil Company, assignee of the original leasee named in said lease.

'IV.

'That on April 22, 1947, Mrs. Myrtle Weaver Lowe, a widow, and Lula S. Weaver, a feme sole, made, executed and delivered to Reese Wingard, W. N. Jones and Mrs. A. L. Wilkerson (some of the Defendants herein) the following conveyances of record, as part of the same transaction, in the Deed Records of Young County, Texas, to wit: (a) Oil, Gas and Mineral Lease covering the South Half of T. E. & L. Survey No. 200, Abstract No. 447, Young County, Texas, recorded in Volume 220, Page 410; (b) Mineral Deed conveying one-half interest in and to all of the oil, gas and other minerals in and under and that may be produced from the West Half of said T. E. & L. Survey No. 200, Abstract No. 447, Young County, Texas, recorded in Volume 222, page 67. (c) Mineral Deed conveying one-fourth interest in and to all of the oil, gas and other minerals in and under and that may be produced from the East Half of said T. E. & L. Survey No. 200, Abstract No. 447, Young County, Texas, recorded in Volume 222, page 68.

'V.

'That the said Mrs. Myrtle Weaver Lowe formerly worked for the Security National Bank in Dallas and later became a speech writer for third parties, and was on April 22, 1947, 67 years of age; that Mrs. Myrtle Weaver Lowe died testate since the filing of this suit, devising all of her interests, if any, in said T. E. & L. Survey No. 200 to her sister, the plaintiff, Lula S. Weaver; that the estate of the said Mrs. Myrtle Weaver Lowe, deceased, has been administered and closed. That plaintiff, Lula S. Weaver, was 65 years of age on April 22, 1947.

'VI.

'That the lease referred to in IV (a) above is on a printed form and all typewritten insertions therein contained were made by lessor, Mrs. Myrtle Weaver Lowe. That the following language was typed on said lease form by the said Mrs. Myrtle Weaver Lowe prior to its execution and delivery by the lessors therein named to the lessees therein named, to wit: 'The above named Reese Wingard and W. N. Jones and Mrs. A. L. Wilkerson agree to begin to drill an oil well on the tract of land described above within thirty days from this date to bring to completion within 90 days. Unless this above agreement is carried fully as above described this lease becomes null and void or the transaction becomes null and void.'

'VII.

'That the defendants Reese Wingard, W. N. Jones and Mrs. A. L. Wilkerson did within thirty days of April 22, 1947, in good faith and at their own expense, begin to drill a well for oil on the land described in the aforesaid lease, recorded in Volume 220, page 410, of the Deed Records of Young County, Texas, and prosecuted the drilling thereof in a good and workmanlike manner to a depth between 1066 feet and 1200 feet below the surface, which was the then known depth for the production of oil in the general area of the lands covered by said lease; that said well was completed as a dry hole within ninety days of April 22, 1947, and has neither produced oil, gas or other minerals; that said lessees named in said lease have not drilled any additional wells on the lands covered by said lease, and have never paid any delay rentals as provided in Paragraph 5 of said lease; that said lease has expired in accordance with its terms.'

Although not included in above stipulations, it is not disputed that these two mineral deeds contained a clause subjecting the grant to outstanding oil, gas and mineral leases and that each provides: (see appellees' brief) "In the event that the above lease for any reason becomes canceled or forfeited, then and in that event, grantee shall own' in the case of one of the deeds, one-half, and in the case of the other deed, one-fourth, 'of all oil, gas and other minerals in and under said lands, together with a like (one-half and one-fourth, respectively) interest in all bonuses paid, and all royalties and rentals provided for in said oil, gas and mineral leases covering the above described lands."

Initially, it is to be noted that the instruments in question (Oil and Gas Lease and Two Mineral Deeds) were executed 'as part of the same transaction' and typed into the lease instrument by Miss Lula Weaver was the requirement on part of lessor to 'drill an oil well' within 90 days, in default of which the lease becomes 'null and void or the transaction become null and void'. Unquestionably, the rule regarding the construction of contemporaneous instruments comes into play; appellant quoting from 14 Tex.Jur. Sec. 147, p. 926, 'They are then to be construed together, even though the result be to modify one of the instruments which, standing alone, would have a different construction. Thus a deed absolute in form, substance and effect has been held to be wholly conditional, the condition being expressed in a contemporaneous instrument.' Appellant in his several points contends that the three instruments executed as part of the same transaction show on their face to be made pursuant to a single purpose, namely, 'mineral development', the parties considering them as no more than an oil and gas lease. He argues in this connection that 'The language 'the transaction becomes null and void' shows as clearly as any language could that it was the intention of the parties to treat the three instruments as one rather than separately, and by them create only a defeasible fee in the minerals, for the word 'transaction' comprehends and includes the three instruments and treats them as one; and in the same phrase delimits the title...