Hooks v. Neill

• Decision Date: 18 July 1929
• Docket Number: (No. 9320.)
• Citation: 21 S.W.2d 532
• Parties: HOOKS et al. v. NEILL et al.
• Court: Texas Court of Appeals

21 S.W.2d 532

HOOKS et al. v. NEILL et al.

(No. 9320.)

Court of Civil Appeals of Texas. Galveston.

July 18, 1929.

Rehearing Denied October 24, 1929.

Appeal from District Court, Harris County; Walter E. Monteith, Judge.

Action by Charles G. Hooks and others against Robert T. Neill and others, in which defendant named filed a cross-action against the Oxford Oil Company, R. H. Ward, and another. From the judgment, Hooks and the named cross-defendants appeal. Reformed and affirmed.

Gordon O. McGehee and R. H. Ward, both of Houston, for appellants.

Kennerly, Williams, Lee, Hill & Sears, of Houston, and Hill, Smith & Neill, of San Angelo, for appellees.

LANE, J.

On the 18th day of November, 1902, Stephen Jackson, who owned 43 acres of land, a part of the Stephen Jackson league, near the town of Sour Lake, Tex., executed a deed wherein it is recited that "for and in consideration of the sum of twelve hundred ($1,200) dollars to me in hand paid by Mrs. M. J. Mackey and Mrs. Dora M. Neill, and C. C. Todd, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Mrs. M. J. Mackey and Mrs. Dora M. Neill of San Antonio [here a 1-acre tract of land, a part of the 43-acre tract, is described by metes and bounds], "to have and to hold the above described premises together with all and singular the rights and appurtenances thereto in anywise belonging unto the said Mrs. M. J. Mackey and Mrs. Dora M. Neill, their heirs and assigns forever. And I do hereby bind myself, my heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said Mrs. M. J. Mackey and Mrs. Dora M. Neill, their heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof." (Italics ours.)

It will be noticed that, while the conveyance recites that C. C. Todd paid a part of the consideration therefor, the land was in fact conveyed to Mrs. Mackey and Mrs. Neill only. On the 29th day of April, 1903, C. C. Todd executed and delivered to Mrs. Mary Mackey a deed, wherein it is recited:

"That I, C. C. Todd, a citizen of Beaumont, Texas, of the county of Jefferson, state of Texas, for and in consideration of the sum of two hundred sixty-six and two-thirds ($266 2/3) dollars by Mrs. Mary J. Mackey of San Antonio, Texas and Co. of Bexar, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Mary J. Mackey of the County of Bexar and State of Texas, all of my interest in that certain lot or parcel and tract of land being situated near Sour Lake, Texas, and which is a part of a 43-acre survey of land deeded to me in a subdivision among the heirs of Stephen Jackson, Sr., deceased, and which is a part of the Stephen Jackson league, and the metes and boundaries are more fully described as follows, to wit: [Same description as contained in previous deed, to which reference is made.] Including within said bounds all of my interest, that interest being one-third of an acre (1/3) and no more.

"To have and to hold the above described premises together with all and singular the rights and appurtenances thereto in anywise belonging unto the said Mary J. Mackey, her heirs and assigns forever; and I do hereby bind myself, my heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said Mary J. Mackey, her heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof."

This recital is followed by the habendum and general warranty clauses. Upon the death of Mrs. Mackey, such interest as she owned in the one acre of land became vested in James Mackey, and upon the death of Mrs. Dora Neill such interest in said land as she owned became vested in Robert T. Neill, and his sister, Mrs. Dora Neill Raymond. On the 30th day of July, 1925, James Mackey by special warranty deed conveyed all title and interest he owned in the one acre of land to R. L. Durham, trustee. On the 11th day of August, 1925, Robert T. Neill and Mrs. Dora Neill Raymond by special warranty deed conveyed to R. L. Durham, trustee, all title and interest they owned in the one acre of land, except such as was reserved by the recital in the deed as follows:

"It is hereby expressly agreed and understood and made a part of this deed that there is excepted and reserved to the grantors herein a one thirty-second part of all oil on and under the said land and premises herein described and conveyed, which shall be delivered to the grantors on the part of the land where produced. The grantors, however, give the grantee and his assigns the privilege of buying said one thirty-second part of said oil at the market price which is paid for oil of like character in the same vicinity. Settlement shall be made with the grantors on or before the 20th day of each month for oil extracted and saved during the preceding calendar month."

On the 2d day of October, 1925, R. L. Durham, trustee, by warranty deed conveyed the one acre of land involved to C. A. Kelly, wherein it is recited as follows:

"Whereas, heretofore, to wit, on the 30th day of July, 1925, James R. Mackey, of Bexar county, Texas, conveyed to R. L. Durham, trustee, a certain tract or parcel of land hereinafter described; and

"Whereas, on the ____ day of August, A. D. 1925, Robert T. Neill and Dora Neill Raymond _____ to R. L. Durham, trustee, a certain tract or parcel of land, both of said deeds being duly recorded in the Deed Records of Hardin county, Texas. [Here follows description];

"Whereas, said title to said above described premises was placed in the name of R. L. Durham, trustee, for the use and benefit of C. A. Kelly, of Harris County, Texas; and,

"Whereas, said C. A. Kelly has paid the purchase money for same:

"Now, therefore, know all men by these presents that I, R. L. Durham, trustee as aforesaid, for and in consideration of a good, valid, and valuable consideration to me in hand paid by C. A. Kelly, have bargained, sold, and conveyed, and by these presents do bargain, sell, and convey unto the said C. A. Kelly all the right, title and interest that I acquired as trustee by virtue of said deed from Frank B. Warner to R. L. Durham, trustee. * * *

"It is expressly understood, however, that there is reserved from this conveyance a one-sixteenth (1/16) of all oil and gas produced, saved and sold off of said premises, which one-sixteenth (1/16) of said oil and gas is to be run to the credit of the said Frank B. Warner in any pipe lines with which any wells drilled on said premises may be connected."

This deed was filed for record October 23, 1925. On the 21st day of October, 1925, R. L. Durham, trustee, conveyed by his special warranty deed all his right, title, and interest in and to the one acre of land to the Oxford Oil Company. Such deed was filed for record December 19, 1925. The Oxford Oil Company conveyed a one-fourth interest in the one acre to R. H. Ward.

On the 9th day of December, 1925, R. L. Durham executed and delivered to C. A. Kelly a correction deed to the one acre, wherein it is recited that he (Durham) held the title to the land in trust for Kelly, who paid the purchase money for same, and wherein it is recited as follows:

"Whereas, in the last paragraph of said deed from R. L. Durham, trustee, to the said C. A. Kelly, it is stated that there is reserved from said conveyance one-sixteenth of all the oil and gas produced, saved and sold off of said premises, which one-sixteenth of said oil and gas is to be run to the credit of Frank B. Warner in any pipe line to which said wells drilled on said premises may be connected; and

"Whereas, said recitation in said deed is a mistake, and that the said paragraph should read that there is reserved a one thirty-second royalty to Robert T. Neill and Dora Neill Raymond, instead of Frank B. Warner:

"Therefore, know all men by these presents, that I, R. L. Durham, trustee, of the county of Harris and state of Texas, for and in consideration of a good, valid, and valuable consideration to me in hand paid by the said C. A. Kelly, receipt of which is hereby acknowledged, and for the purpose of correcting the error heretofore described, have bargained, sold, and conveyed, and by these presents do bargain, sell, and convey, unto the said C. A. Kelly all that certain tract or parcel of land hereinbefore described.

"It is however expressly understood that there is reserved from this conveyance a one thirty-second of all oil and gas produced, saved and sold off of said premises, which one thirty-second of said oil and gas is to be run to the credit of said Robert T. Neill and Dora Neill Raymond in any pipe lines to which any well drilled upon said premises may be connected."

As both the Oxford Oil Company and Kelly were claiming the one acre under their respective deeds from Durham, and as both desired to have the land developed for the discovery of oil, they, on the 14th day of June, 1926, by agreement between them, made separate lease contracts with the Humphreys Corporation for such development; by the terms of such contracts Humphreys Corporation was to pay to Kelly and the Oxford Oil Company a one-sixteenth royalty of all oil and gas produced from the land. It was also agreed among said parties that the oil coming to Kelly and the Oxford Company should be deposited with the Guaranty Trust Company until their respective rights to the land should be determined by the courts or by compromise. Immediately after such agreement the Humphreys Corporation took possession of the land, produced large quantities of oil therefrom, which it sold to the Gulf Pipe Line Company.

On or about the 12th day of July, 1926, Kelly and the Oxford Company adjusted and settled their differences by an instrument in writing, whereby it was agreed that the Oxford Oil Company should convey to Kelly all of its right, title, and interest in the land...