Houston v. Moore Inv. Co.

• Decision Date: 10 November 1977
• Docket Number: No. 16946,16946
• Citation: Houston v. Moore Inv. Co., 559 S.W.2d 850 (Tex. Ct. App. 1977)
• Parties: Pauline B. HOUSTON, Appellant, v. MOORE INVESTMENT COMPANY, Appellee. (First Dist.)
• Court: Texas Civil Court of Appeals

Page 850

559 S.W.2d 850

Pauline B. HOUSTON, Appellant,

v. MOORE INVESTMENT COMPANY, Appellee.

No. 16946.

Court of Civil Appeals of Texas, Houston (First Dist.).

Nov. 10, 1977.

Sallas, Meriwether & Renfro, Phillip M. Renfro, Crockett, for appellant.

Singleton & Singleton, Robert H. Singleton, Houston, for appellee.

PEDEN, Justice.

Moore Investment Company sued Mrs. Pauline B. Houston for half of a $9,825 bonus payment she received when she executed a mineral lease on land in which Moore had reserved a one-half mineral interest. The trial court overruled Mrs. Houston's motion for summary judgment but granted that of Moore Investment. We affirm.

"There is reserved and excepted from this conveyance, and Grantor hereby retains the title to, an undivided one-half interest in all oil, gas or other minerals in, on or under the lands hereinabove described, but the Grantee herein shall have the right and privilege of executing an oil, gas and mineral lease on such land, without the joinder of Grantor, with the understanding that any such lease shall provide for a royalty to the owners of the land in an amount not less than one-eighth of the minerals to be produced from said land, and further provided that Grantor shall be entitled to one-half of any such royalties retained in such lease."

Appellant argues that any intention of the parties to have Moore Investment share in the bonus payments was negated by Moore Investment's failure to specify its right to bonus payments while specifying its right to receive royalties. Further, that Moore's reservation to itself of title to an undivided one-half interest in the minerals would have, without more, entitled Moore to half of all royalty payments and the later specification of its right to receive such payments was unnecessary. Therefore, she says, the only purpose of this later specification of Moore's right to receive "one-half of any such royalties retained in such lease" was to exclude (by implication) some of its other rights not specified: namely, bonus payments.

It appears to us that the grantor surrendered only one incident of ownership, the right to execute an oil, gas, and mineral lease, a right known as the executive right. A grant of the executive right does not deprive the grantor of the right to participate proportionally in bonuses, rentals and royalties. Burns v. Audas, 312 S.W.2d 417 (Tex.Civ.App.1958, no writ). A grantor who reserves half of the minerals retains half of all the incidents of ownership inherent in the minerals except those specifically granted. Martin v. Snuggs, 302 S.W.2d 676 (Tex.Civ.App.1957, writ ref. n. r. e.).

Appellant argues that the court erred in overruling her motion for summary judgment because the decision in Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166 (1953) establishes her right to judgment as a matter of law. In that case, Scharbauer conveyed real property to Benge by general warranty deed. Both parties understood that there was a one-fourth mineral interest outstanding in a third party, but it was not mentioned in the deed. The deed contained: 1) a reservation of a 3/8ths mineral interest to the grantor and 2) a provision in an executive clause for payment of 3/8ths of all bonuses, rentals and royalties to the grantors. The supreme court held that the warranty extends to what the deed purports to grant, the surface and the 5/8ths interest in the minerals, but does not extend to the provision in the executive clause that the grantor's share in bonuses, rentals and royalties shall be 3/8ths. The court thus held that the grantor was left only a 1/8th mineral interest but that the express agreement that the grantors receive 3/8ths of all bonuses, delay rentals and royalties was merely a limitation upon the power of the grantee to execute leases and was binding on all part...