Kennedy v. Ellisor, 11232.

• Decision Date: 31 July 1941
• Docket Number: No. 11232.,11232.
• Parties: KENNEDY et al. v. ELLISOR et ux.
• Court: Texas Court of Appeals

154 S.W.2d 284

KENNEDY et al. v. ELLISOR et ux.

No. 11232.

Court of Civil Appeals of Texas. Galveston.

July 31, 1941.

Rehearing Denied October 2, 1941.

Appeal from District Court, Houston County; Sam Holland, Judge.

Suit in trespass to try title by J. W. Ellisor and wife against C. W. Kennedy and A. B. Spence to recover certain realty and to remove an alleged cloud on the plaintiffs' title to the land, wherein the defendants filed a cross-action. From a judgment in favor of the plaintiffs, the defendants appeal.

Judgment affirmed.

Kennedy & Granberry, C. W. Kennedy, Jr., and F. P. Granberry, all of Crockett, for appellants.

Adams & Morgan, of Crockett, for appellees.

MONTEITH, Chief Justice.

This is an appeal in a trespass to try title suit brought by appellees, J. W. Ellisor and wife, to recover from appellants, C. W. Kennedy and A. B. Spence, 79.9 acres of land out of the Josiah Herod Survey in Houston County, Texas, and to remove an alleged cloud on appellees' title to said land.

Appellants answered by a general denial and a plea of not guilty. By cross-action they alleged that in 1927 appellees had agreed to sell them one half of the minerals in and under said land but that in the preparation of the deed conveying said interests to them, the word "royalty" was, by mutual mistake, used instead of the word "minerals". They sought a construction and reformation of said deed so that it might reflect its alleged true meaning and convey to them the title to an undivided one-half interest in the mineral estate in said land. In answer to appellants' cross-action, appellees specially pled the four years statute of limitations. They alleged that they had intended to sell and did sell appellants only one-half of the oil and other minerals which would be produced as a result of the development of a five-year oil and gas lease which they had previously executed in favor of appellants but that said lease had never been developed and had expired and that the mistakes, if any, in the wording of said deed were due to appellants' negligence in failing to procure a person properly qualified to prepare the instrument and to their negligence in failing to read the deed after it was delivered to them.

Based on the answers of the jury to special issues submitted to them, the trial court rendered judgment in favor of appellees for the title to and possession of said land and for the removal of the cloud cast on their title by said deed.

The deed in question was dated May 21, 1927. It was executed by appellees, J. W. Ellisor and Eunice Ellisor. By its terms, it conveyed to appellants, C. W. Kennedy and A. B. Spence, a "one-half royalty interest in and to all of the oil, gas and other minerals in and under, and that may be produced from," said land, described in said deed as 70 acres out of the Josiah Herod Survey in Houston County, Texas. It recited that said land was then under an oil and gas lease originally executed in favor of, and then held by the said C. W. Kennedy and A. B. Spence, and that it was understood that said sale was made subject to said lease "but covers and includes one-half of all the oil royalty and gas rental or royalty due and to be paid under the terms of said lease". It provided that "none 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. Ellisor, 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 C. W. Kennedy, and A. B. Spence and J. W. Ellisor, each owning interest in all oil, gas and other minerals, in and upon said land, together with interest in all future rents." In its habendum clause, the instrument contains the following provision: "To have and to hold the above described property, together with all and singular, the rights, and appurtenances thereto in any wise belonging unto the said J. W. Ellisor, (emphasis ours) his heirs and assigns forever."

This is the second appeal in this suit. It was originally brought by appellees in 1937 as an action to try title and for a construction of said deed dated May 21, 1927. On the first trial judgment was rendered in favor of appellants. On an appeal by appellees to this court, the judgment of the trial court was reversed and the cause remanded, this court holding that the true intent of the parties could not be determined from the wording of the deed. 128 S.W.2d 842. A writ of error was refused by the Supreme Court. On the second trial, of which this is an appeal, appellees, by amended pleadings, sued in trespass to try title for the title and possession of said land and for the removal of a cloud on their title.

While certain provisions of said deed must be construed for the purpose of clarifying ambiguities apparent on its face, the changes in its terms on which appellants rely for recovery under their cross-action clearly require a reformation of certain of its provisions rather than a construction thereof. On its face, the deed purports to convey a royalty interest in the land in controversy and not one-half of the mineral estate therein as claimed by appellants. In order for appellants to recover herein, the word "royalty" must be...