Donnell v. Otts

• Decision Date: 12 March 1921
• Docket Number: (No. 9525.)
• Citation: 230 S.W. 864
• Parties: DONNELL et al. v. OTTS et al.
• Court: Texas Court of Appeals

230 S.W. 864

DONNELL et al. v. OTTS et al.

(No. 9525.)

Court of Civil Appeals of Texas. Fort Worth.

March 12, 1921.

Appeal from District Court, Stephens County; W. R. Ely, Judge.

Consolidated suit by Mrs. John Otts and others against G. L. Donnell and others. From judgment for plaintiffs, defendants appeal. Affirmed.

Arnold & Arnold, of Graham, and W. J. Oxford and John Hancock, both of Thurber, for appellants.

M. D. Brown, of New Castle, S. C. Padelford, of Fort Worth, and M. L. Arnington, of Granbury, for appellees.

CONNER, C. J.

This is a consolidated suit in which the appellees are claiming the mineral rights in a survey of 160 acres of land in Stephens county, as heirs of D. H. Pruitt, Sr. The survey was patented by the state of Texas to D. H. Pruitt, Sr., on the 10th day of January, 1883. On March 14, 1888, D. H. Pruitt, joined by his wife, Lucinda Pruitt, for a recited consideration of $125, duly executed and delivered to Robert L. Pruitt, their son, a general warranty deed conveying the 160 acres of land so patented. The deed, however, contained the following exception or reservation:

"But it is agreed upon and stipulated by and between all parties that I, D. H. Pruitt, Sr., do reserve and hold all minerals of all and any kind (except stone coal) that may be on the aforesaid land for my own use and benefit."

Thereafter, on December 29, 1891, R. L. Pruitt executed and delivered to his brother, M. V. Pruitt, a general warranty deed without exception or reservation, conveying the land so patented and so conveyed to him by his father, D. H. Pruitt, Sr. By mesne conveyances from and under M. V. Pruitt, all without exception or reservation of any kind, the land appears to have been finally acquired by G. L. Donnell, who, joined by his wife, on August 19, 1916, executed and delivered to the appellant Texas Pacific Coal & Oil Company an oil and gas lease in the ordinary form, under which the said company and the Sun Company, an assignee, are now claiming.

D. H. Pruitt, Sr., died between the years 1890 and 1894, and his wife died in March, 1899. A consideration of the record makes it evident that the court below proceeded upon the theory that the exception or reservation in the deed from D. H. Pruitt, Sr., to his son, R. L. Pruitt, had the effect of wholly withdrawing from the operation of the conveyance the oil and minerals in the land, and that therefore, upon the death of D. H. Pruitt, Sr., in 1893, the mineral interest so excepted from the operation of the deed passed by inheritance to his heirs, the appellees in this case.

The contentions of appellants are that the provision referred to is not an exception, but a mere personal reservation or license in favor of the said D. H. Pruitt, Sr. which ended at his death, and that hence the right to the minerals in the land set forth passed by estoppel to the vendees of R. L. Pruitt and M. V. Pruitt by virtue of their general warranty deeds. These contentions present material questions for our determination.

We will restate the provision in the deed of D. H. Pruitt, Sr., upon which the questions depend. It is:

"But it is agreed upon and stipulated by and between all parties that I, D. H. Pruitt, Sr., do reserve and hold all minerals of all and any kind (except stone coal) that may be on the aforesaid land for my own use and benefit."

In 7 Words and Phrases, p. 6140, under the title of "Reservation," it is said:

"A reservation is a clause in a deed creating or reserving something out of the thing granted that was not in existence before" — citing numerous authorities.

Again it is said:

"A reservation in a deed is something created out of the granted premises by force and effect of the reservation itself, as an easement out of land granted, or rent out of premises devised."

It is further said:

"A reservation is a proviso in a deed which reserves to the grantor some new right or interest in the thing granted, not before existing in him, operating by way of an implied grant. If it does not contain words of inheritance, it will only give an estate for the life of the grantor."

Numerous other definitions of the term "reservation" are given in the authorities cited, but those quoted are sufficient, we think, for our purposes.

The term "exception," as used in grants or contracts, has been frequently defined. In 3 Words and Phrases, p. 2538 et seq., the following is given:

"An `exception,' as the term is used with reference to contracts, is the taking some part of the subject-matter of the contract out of it."

Again:

"An exception in a deed or other instrument is something existing before as a part of the thing granted, and which is excepted from the operation of the conveyance."

The definitions quoted fairly present the view of the great weight of decided cases. See 8 R. C. L. p. 1089, § 147, and following; 2 Devlin on Deeds, § 979 et seq. In the latter authority, in section 980, it is said:

"The terms `exception' and `reservation' are often used indiscriminately, and sometimes in a deed what purports to be a reservation has the force of an exception. Mr. Justice Woodward, after reviewing some authorities, says: `Thus it appears upon sufficient authority that words of reservation may operate by way of exception, and to have any effect must do so when the subject of the reservation is not something newly created, as a rent or other interest strictly incorporeal, but is a thing corporate and in esse when the grant is made.' * * * Where a grantor conveys land, `saving and reserving, nevertheless, for his own use the coal contained in the said piece or parcel of land, together with free ingress and egress by wagon road to haul the coal therefrom as wanted,' the clause operates as an exception, and...