Gibson v. Watson

• Decision Date: 13 May 1958
• Docket Number: No. 7027,7027
• Citation: 315 S.W.2d 48
• Parties: Mrs. Kate M. GIBSON, Individually, and as Independent Executrix of the Estate of G. W. Gibson, Deceased, et al., Appellants, v. Ahmittie (Minnie) WATSON et al., Appellees.
• Court: Texas Court of Appeals

Page 48

315 S.W.2d 48

Mrs. Kate M. GIBSON, Individually, and as Independent Executrix of the Estate of G. W. Gibson, Deceased et al., Appellants, v. Ahmittie (Minnie) WATSON et al., Appellees.

No. 7027.

Court of Civil Appeals of Texas, Texarkana.

May 13, 1958.

Rehearing Denied June 24, 1958.

Charles L. Wolfe, Henderson, Norman, Rounsaville & Hassell, Jacksonville, for appellants, Mrs. Kate M. Gibson, individually and as independent executrix under will of G. W. Gibson, Deceased, W. H Shook, J. W. Tyra and A. T. Tyra.

Fred Parks, Fred A. Collins, Houston, for appellant, Ahmittie (Minnie) watson.

Wilson & Spivey, Tyler, for appellees, S. A. Cochran, Hennie Genecov, Randolph Genecov and Mrs. Rosa G. Ellis.

Fred Parks, Fred A. Collins, Houston, for appellee, Ahmittie (Minnie) Watson.

Norman, Rounsaville & Hassell, Jacksonville, for appellees, Mrs. Kate M. Gibson, individually and as independent executrix under will of G. A. Gibson, Deceased, and W. H. Shook.

FANNING, Justice.

This appeal involves the construction of two written instruments and the quantity of acreage conveyed in the first instrument.

Harrison C. Brisby was one of the four heirs of Corbin Brisby, patentee of the Corbin Brisby Survey in Cherokee County, Texas, which patent was issued by the State of Texas on April 19, 1927, long after the death of Corbin Brisby. Shortly prior to the issuance of the patent, to-wit, on March 27, 1927, Harrison C. Brisby, who inherited a 1/4 interest in the Corbin Brisby Survey, executed and acknowledged a written instrument in favor of J. W. Tyra, W. H. Shook and G. W. Gibson, which is one of the subjects of controversy on this appeal. The instrument in question is a printed form with blank spaces filled in with typewritten additions and in some instances filled in by handwritten additions. The typewritten additions will be italicized and the handwritten additions will be capitalized. We quote from said instrument as follows:

'The State of Texas,

County of Cherokee}

Know All Men By These Presents:

'That I, HARRISON C. BRISBY, of the County of Cherokee, State of Texas, has and by these presents does grant, bargain, sell, convey, set over and assign and deliver unto J. W. Tyra, W. H. Shook and G. W. Gibson, the following, to-wit: One-thirty second (1/32) interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described lands situated in Cherokee County, Texas, to-wit:

'Corrected Field notes of the Corbin Brisby Pre-emption of 160 acres of land situated in Cherokee County, Texas, about 20 miles North West from the town of Rusk, the County Site of Cherokee County, and are per survey made for and in response to the request of H. C. Brisby. The area so surveyed is a part of the original tract surveyed by Jas. P. Gibson, County Surveyor of said Cherokee County, Texas, on the 1st. day of October, 1873, and the field notes of said survey recorded in County Surveyor Records of Cherokee County, Texas, in Book Vol. D on page 288, and the area described in these corrected field notes is described by metes and bounds as follows. Situated on the Neches River:

BEGINNING at N. W. corner of said Corbin Brisby Original Survey, at a stake on the East bank of the Neches River, from which a water oak 18 ins. dia. brs S. 33 E. 7 2/10 varas. A Black Gum 18 ins. dia. brs. S. 27 1/2 E. 16 varas.

'Thence East with S. B. line of M. Garcia Survey 1057 varas to stake, the N. E. corner of said original survey, on W. B. line of J. H. Shaw Survey, from which a pine 16 ins. dia. brs. S. 33 E. 8 1/2 varas, P. O. 20 ins. dia. brs. S 23 varas;

'Thence South with W. B. line of said Shaw Survey and W. B. line of R. Smithers survey No. 202, 993 varas to angle corner of said R. Smither Survey, stake from which a post oak 12 ins. dia. brs S 3 8/10 varas, a red oak 20 ins. dia. brs. S. 16 W. 12 varas;

'Thence West 408 varas to another corner of said Brisby original survey, and N. W. corner of R. Smither Survey No. 202, a stake from which a pin oak 6 ins. dia brs. N. 57 E. 6 1/2 varas, pin oak 4 ins. dia. N. 7 E. 1 and 1/2 varas;

'Thence North 70 varas to stake for corner, a forked pin oak 16 ins. dia. brs. S. 17 feet. Pin oak 12 ins. dia. brs. S. 85 W. 34 feet;

'Thence West at 187 varas cross a slough C.S.E. and a road N. E. at 313 varas to a stake in the East margin of the Neches River from which a S. G. 10 ins. dia. brs. N. 29 W. 14 feet, and a pin oak 24 ins. dia. brs. N. 16 E. 29 feet;

'Thence with the meanderings of the East margin of said River as follows: N 27 W 220 varas, N. 52 W 115 varas, N 21 W 127 varas, N 40 W 60 varas. N 75 E 85 varas. N. 18 W 155 varas. N. 28 W. 250 varas. N. 89 varas to the place of beginning. Containing 160 acres of land.--Surveyed the 28th. day of March, A. D., 1927, by L. T. Moore, County Surveyor of Cherokee County, Texas. (Field Notes are typewritten.) together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said lands for oil, gas and other minerals, and removing the same therefrom.

'And said above described lands being now under an oil and gas lease originally executed in favor of Not leased and now held by, it is understood and agreed that this sale is made subject to said lease, but covers and includes one-fourth of all the oil royalty and gas rental or royalty due and to be paid under the terms of said lease.

'It is agreed and understood that one-fourth of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to the said J. W. Tyra, W. H. Shook & G. W. Gibson, and in the event that the said above described lease for any reason becomes cancelled or forfeited, then and in that event, the lease interests and all future rentals on said land, for oil, gas and mineral privileges shall be owned jointly by HARRISON C. BRISBY and J. W. Tyra, W. H. Shook and G. W. Gibson, and each owning 3/4 and 1/4 interest in all oil, gas and other minerals in and upon said land, together with one-fourth interest in all future rents.

'This sale is made for and in consideration of the sum of one dollar cash and other good and valuable considerations cash in hand paid, the receipt of which is hereby acknowledged.

'To Have And To Hold, the above described property, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said J. W. Tyra, W. H. Shook & G. W. Gibson, their heirs and assigns forever, and I to [sic] hereby bind ourselves, heirs, executors and administrators to warrant and forever defend all and singular the said property unto the said J. W. Tyra, W. H. Shook and G. W. Gibson, their heirs and assigns against every person whomsoever lawfully claimming or to claim the same or any part thereof.

'Witness my hand this, the 28th. day of March, A.D. 1927.

'HARRISON C. BRISBY

________'

The trial court construed the above instrument from Harrison C. Brisby to Tyra, Shook and Gibson as coveying a 1/32 interest in the minerals which carried with it by operation of law 1/32 interest in the 1/8 royalty under the land specifically described (which the trial court found to be 155.74 acres) rather than the 160 acres generally described.

Appellants as to the court's construction of this deed, Mrs. Kate M. Gibson, individually and as independent executrix under the will of G. W. Gibson, deceased, W. H. Shook, J. W. Tyra and A. T. Tyra, contend on appeal that the trial court's construction of the deed in question was erroneous and that the deed conveyed 1/4 of the usual 1/8 royalty as well as one-fourth of the minerals under the entire Corbin Brisby survey.

The appellees as to the deed in question are as follows: Ahmittie (Minnie) Watson, S. A. Cochran, Hennie Genecov, Rudolph Genecov, Henry Lee Carter and Mrs. Rosa G. Ellis. Ahmittie (Minnie) Watson was a daughter and heir of Harrison C. Brisby, deceased, who inherited an undivideed one-fourth interest in and to all minerals and royalties which Harrision C. Brisby retained after the execution of the deed in question, subject to an outstanding oil, gas and mineral lease held by Humble Oil & Refining Company. (Harrison C. Brisby died April 29, 1938, intestate, with no administration on his estate and none was necessary.) Appellees S. A. Cochran, Hennie Genecov, Rudolph Genecov, Harry Lee Carter, and Mrs. Rosa G. Ellis (who hold under various heirs of Harrison C. Brisby) were adjudged various interests in the mineral estate in controversy by the trial court as shown by the record.

The appellees above named contend that the trial court correctly construed the deed above referred to.

Appellants and appellees alike cite the various rules for construction of deeds. They also each rely on the cases of Garrett v. Dils Co., Tex.Sup., 299 S.W.2d 904, and Porter v. Shaw, Tex.Civ.App., 12 S.W.2d 595, n. w. h., and each contends that by analogy these cases support their respective constructions of the deed.

Among other cases cited by appellants are the following: Tipps v. Bodine, Tex.Civ.App., 101 S.W.2d 1076, wr. ref.; Benge v. Scharbauer, Tex.Civ.App., 259 S.W.2d 166; Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617, and many others.

Among other cases cited by appellees are the followind: Germany v. Turner, 132 Tex. 491, 123 S.W.2d 874; Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563; Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617; Kokernot v. Caldwell, Tex.Civ.App., 231 S.W.2d 528, wr. ref., and many others.

The trial court admitted in evidence over the pertinent objections of appellees an oil and gas lease dated December 10, 1926, from Harrison C. Brisby to Jeff D. Jones covering the land described in the deed under controversy here, but acknowledged three days after the execution of the subject deed to Tyra, Shook and Gibson. Although admitted in evidence, the trial court apparently did not give any consideration to the lease in construing the subject...