Gill v. Bennett, 2808.

• Decision Date: 06 April 1933
• Docket Number: No. 2808.,2808.
• Parties: GILL v. BENNETT.
• Court: Texas Court of Appeals

Page 473

59 S.W.2d 473

GILL v. BENNETT.

No. 2808.

Court of Civil Appeals of Texas. El Paso.

April 6, 1933.

Rehearing Denied May 4, 1933.

Appeal from District Court, Ward County; J. A. Drane, Judge.

Suit by J. R. Bennett against R. H. Gill and others. From a judgment for plaintiff, named defendant appeals.

Reversed and rendered.

Upton & Upton, of San Angelo, for appellant.

Kemp & Nagle, of El Paso, and Brian Montague, of Del Rio, for appellee.

HIGGINS, Justice.

This is a suit by J. R. Bennett against R. H. Gill and others.

The controversy is over an undivided 7/1024 interest in the minerals in a section of land containing 640 acres. The defendants, other than Gill, are conceded to be the owners of an undivided 127/128 mineral interest; and, as to those defendants, and that interest, no point is presented by the appeal. The point at issue is whether Bennett owns an undivided 1/128 (8/1024) interest in the minerals, or an undivided 1/1024 interest. The issue was found in favor of Bennett, and Gill appeals.

The appeal is presented upon an agreed statement of facts.

This agreement discloses the following:

J. D. Jones, the owner of the section, conveyed to Bennett an undivided 1/16 interest in and to all of the oil, gas, and other minerals in and under, and that might be produced from, an undivided 80 acres out of said section, together with the right of ingress and egress for the purpose of mining, drilling, and exploring said land for oil, gas, and other minerals and removing the same.

Thereafter, on December 7, 1926, Jones executed an oil and gas lease on said section to Gill on a regular 88 form. The lessee agreed:

"1st. To deliver to the credit of lessor, free of cost, in the pipe line to which they may connect their wells, the equal one-eighth part of all oil produced and saved from the leased premises.

"2nd. To pay the lessor one-eighth of net proceeds for the gas from each well where gas only is found, while the same is being used off the premises. * * *

"3rd. To pay lessor for gas produced from any oil well and used off the premises at the rate of one-eighth of the net proceeds, payable monthly for the time during which such gas shall be used. Should the lessee desire to utilize casing-head gas coming from oil wells upon the premises herein described for the purpose of manufacturing gasoline, lessee shall have the privilege of so doing by paying to the lessor one-eighth of the proceeds derived from the sale of said casing-head gas at the wells."

The lease also provides: "If said lessor owns a less interest in the above described land than the entire and undivided fee simple estate therein, then the royalties and rentals herein provided for shall be paid the said lessor only in proportion which their interest bears to the whole and undivided fee."

Gill conveyed to various parties the interest in the oil and gas in the section of land which he acquired by the foregoing lease, and it is agreed that such assignees (who are the other defendants) own 7/8 of the oil and gas in the section. As to these assignees it was agreed "that they are the owners of seven-eighths of the oil and gas in, on and under said section of land."

On January 13, 1927, Bennett executed and delivered to J. D. Jones an instrument which reads:

"The State of Texas, County of Pecos

"Whereas, heretofore, on April 6th, 1926, J. D. Jones, did execute and deliver to J. R. Bennett, one certain Mineral Deed, wherein and whereby he conveyed to the said J. R. Bennett, a one-sixteenth interest in and to all of the oil and gas and other minerals in and under and that may be produced from certain lands fully described in said mineral deed, which said mineral deed is recorded in Volume 33, page 316, Deed Records of Ward County, Texas, and which said deed and the record thereof is hereby referred to and for a description of the property conveyed, and for all purposes, and,

"Whereas, it has been agreed between the said J. D. Jones, Grantor, in said deed, and the undersigned J. R. Bennett, Grantee, in said deed, that the said J. D. Jones, had and has the absolute right and authority to lease the lands described in said deed, for the purpose of mining, drilling and exploring said lands for oil, gas and other minerals and removing the same therefrom, and had and has the absolute right and authority to execute oil and gas and mineral leases on said land described in said mineral deed above mentioned for such time and on such terms and conditions as to him may seem fit, and that the said J. R. Bennett, nor any one claiming under him has no right or interest in the bonus or rents collected by the said J. D. Jones or his assigns, under any oil and gas or other mineral leases or leases so executed by the said J. D. Jones, now

"Therefore, in consideration of the premises and of One Dollar ($1.00) cash to me in hand paid by J. D. Jones, the receipt of which is hereby acknowledged, and for the purpose of setting out and making plain to the public the intention of the parties in the said mineral deed first herein described, I, J. R. Bennett, the original Grantee in said mineral deed first herein described, do hereby relinquish and disclaim any right, title or interest in or to any bonus or rents collected by the said J. D. Jones, or his assigns, from any oil and gas lease, or other mineral lease, that has heretofore been executed or that may hereafter be executed by the said J. D. Jones on said land described in said mineral deed, and do hereby grant, sell and convey unto the said J. D. Jones, all of the right, title and interest that I may have by virtue of said mineral deed in any and all bonuses and rentals...