Countiss v. Baldwin

• Citation: 151 S.W.2d 235
• Decision Date: 16 April 1941
• Docket Number: No. 10930.,10930.
• Parties: COUNTISS et al. v. BALDWIN et al.
• Court: Court of Appeals of Texas

151 S.W.2d 235

COUNTISS et al. v. BALDWIN et al.

No. 10930.

Court of Civil Appeals of Texas. San Antonio.

April 16, 1941.

Rehearing Denied May 28, 1941.

Appeal from District Court, Bee County; W. G. Gayle, Judge.

Trespass to try title by Hattie Baldwin and others against H. D. Countiss and others to recover royalty interest in minerals under certain land, wherein the defendants Vincent J. Meyer and Margaret V. Meyer, his wife, filed a cross-action asserting an interest in gas, oil and minerals under the land involved. From an adverse judgment, H. D. Countiss and certain defendants appeal.

Affirmed in part, and reversed and rendered in part.

Ben F. Vaughan, Jr., of Corpus Christi, Dougherty & Dougherty and George P. Morrill, all of Beeville, W. B. Moss, of Sinton, and W. J. Howard, M. P. Pearson, R. Chester Day, Felix A. Raymer, and R. E. Seagler, all of Houston, for appellants.

Keys & Holt and Oscar Spitz, all of Corpus Christi, for appellees.

MURRAY, Justice.

This suit was instituted by Hattie Baldwin, individually and as independent executrix of the will of Jacob C. Baldwin, deceased, F. T. Baldwin, independent executor of the will of Jacob C. Baldwin, deceased, J. C. Baldwin and R. B. Baldwin against H. D. Countiss and wife, Della F. Countiss, Vincent J. Meyer and wife, Margaret V. Meyer, and Humble Oil and Refining Company, a corporation, seeking, in a statutory action of trespass to try title, to recover a one-sixteenth royalty interest in the minerals in, on or under a certain 68.16 acres of land out of Section No. 49, of the George H. Paul Subdivision of the Coleman-Fulton Pasture Company's Lands, south of Taft, in San Patricio County, Texas.

Vincent J. Meyer and wife, Margaret V. Meyer, filed a cross-action asserting a one-sixteenth interest in the gas, oil and minerals in, on or under the said 68.16 acres of land.

The trial was to the court without the intervention of a jury and resulted in judgment in favor of the legal representatives and heirs of Jacob C. Baldwin for the one-sixteenth royalty interest sued for, and likewise a recovery by Meyer and wife for the one-sixteenth royalty interest sought by them.

From this judgment the Humble Oil and Refining Company, and H. D. Countiss and wife, Della F. Countiss, have prosecuted this appeal. There is no attempt by this appeal to disturb that part of the judgment decreeing to Vincent J. Meyer and wife, Margaret V. Meyer, the one-sixteenth royalty interest awarded to them.

The facts are largely undisputed and are as follows:

Prior to May 22, 1919, Thos. Kirk, Jr., was the owner of 320 acres of land, which included the 68.16 acres herein involved. On that date Kirk and his wife executed a deed of trust on the 320 acres of land to M. H. Gossett, trustee, securing The Federal Land Bank of Houston, Texas, in the payment of a note for the sum of $5,000. The deed of trust was duly recorded on May 27, 1919.

On January 17, 1920, while the mortgage was in full force and effect, Kirk and wife conveyed to Jacob C. Baldwin all of the oil, gas and other minerals under the 68.16 acres herein involved, reserving to themselves a one-sixteenth royalty interest in said oil, gas and minerals.

Baldwin died testate on November 1, 1921. His will was duly probated and Hattie Baldwin and F. T. Baldwin became the independent executrix and executor, respectively, of his will.

On June 10, 1922, the legal representatives of Jacob C. Baldwin, deceased, conveyed to Humble Oil & Refining Company all the oil, gas and other minerals under said 68.16 acres of land, reciting in such conveyance that Kirk had reserved a one-sixteenth royalty of the oil, gas and other minerals in his conveyance to Baldwin, and further reciting that they were reserving a one-sixteenth oil royalty.

On September 4, 1925, the Federal Land Bank of Houston made Kirk an additional loan of about $1,600, and took a new note and deed of trust in the sum of $6,000, there being about $4,400 unpaid on the first $5,000 loan. The time of payment of the old loan was extended and made to mature in installments. This new deed of trust was recorded on September 4, 1925.

Default having been made in one of the installments, the land was purportedly sold on February 12, 1935, by a substitute trustee, to Corpus Christi National Farm Loan Association; the purchaser taking subject to the unpaid portion of the $6,000 note.

On February 23, 1935, Corpus Christi National Farm Loan Association conveyed said property to Orville W. Eastland, and on December 27, 1938, Eastland conveyed the same to the appellant, H. D. Countiss.

On March 6, 1935, the Federal Land Bank of Houston, the owner of the $6,000 note, secured by the deed of trust, dated September 4, 1925, transferred the remainder of the indebtedness, amounting to $6,230.40, to H. D. Countiss, together with the deed of trust lien, but recited in the transfer that the note was cancelled. Default having been made, the property was purportedly sold by an attorney-in-fact for a substitute trustee to H. D. Countiss on July 3, 1935, the deed being recorded on August 9, 1935. Later the substitute trustee executed a correction deed, dated April 30, 1937, and filed for record June 17, 1937. Both of these trustee sales are attacked for certain irregularities as will hereafter appear.

On September 26, 1938, Humble Oil & Refining Company quitclaimed all right in the land to H. D. Countiss, and this quitclaim deed was filed for record October 18, 1938.

On September 28, 1938, H. D. Countiss and wife executed to Humble Oil & Refining Company an oil, gas and mineral lease on said 68.16 acres of land. Countiss and wife conveyed a part of their royalty under this lease to Vincent J. Meyer and wife, Margaret V. Meyer.

This suit was first filed in the District Court of San Patricio County, but was later transferred to the District Court of Bee County where it was tried.

Appellants first contend that when the legal representatives of J. C. Baldwin, deceased, conveyed the oil, gas and other minerals in, on or under the 68.16 acres of land they conveyed all the oil, gas and minerals, and that the attempted reservation in the deed of a one-sixteenth royalty interest was ineffective to reserve to the Baldwin estate any royalty interest. The exact contention being that the reservation clause is repugnant to the grant and the general warranty of title found in the deed. We overrule this contention. Mr. Summers in his work on the Law of Oil and Gas, Volume 1, § 134, page 327, states: "In a few cases it has been contended by counsel that where a grantor grants land in fee and in a later clause of the deed excepts from the grant the oil and gas or other minerals, the exception is void, because repugnant to the grant, but the courts refuse to follow this ancient rule of construction, preferring the modern viewpoint to the effect that the all-important consideration in the construction of a deed is the intention of the parties to be gathered from the instrument as a whole (citing Associated Oil Company v. Hart, [Tex.Com.App.], 277 S. W. 1043, Owen v. Associated Oil Company, Civil Appeals, 281 S.W. 607)."

When the instrument is considered from its four corners, it is plain that the Baldwin representatives were conveying the minerals under the 68.16 acres to Countiss, except the one-sixteenth royalty interest retained by Kirk and a one-sixteenth royalty interest which was retained for the benefit of the Baldwin estate.

The royalty interest discussed in Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021, was apparently reserved in very much the same manner in which the Baldwins reserved the royalty interest in the conveyance to Humble Oil and Refining Company. There is nothing inconsistent in conveying all the mineral interest one may own in land and in a separate paragraph reserving a one-sixteenth royalty interest, because a one-sixteenth royalty is something more than a one-sixteenth of the minerals in place. While it is true that a person who owns a one-sixteenth royalty in the minerals under a certain tract of land, for the purposes of taxation is regarded as owning a one-sixteenth of the minerals in place, as was held in Sheffield v. Hogg, supra, he in truth and in fact owns something more. He has a right to have all costs of discovering and producing the oil charged...