King v. First Nat. Bank of Wichita Falls

• Decision Date: 30 January 1946
• Docket Number: No. A-705.,A-705.
• Citation: 192 S.W.2d 260
• Parties: KING v. FIRST NAT. BANK OF WICHITA FALLS.
• Court: Texas Supreme Court

192 S.W.2d 260

KING v. FIRST NAT. BANK OF WICHITA FALLS.

No. A-705.

Supreme Court of Texas.

January 30, 1946.

Rehearing Denied February 27, 1946.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action involving construction of a deed by B. W. King against the First National Bank of Wichita Falls, as executor and trustee. A judgment adverse to plaintiff was affirmed by the Court of Civil Appeals, 189 S.W.2d 347, and plaintiff brings error.

Judgments of the trial court and the Court of Civil Appeals affirmed.

Marshall & King, of Graham, and Critz, Kuykendall, Bauknight, Mann & Stevenson and Richard Critz, all of Austin, for petitioner.

Harris & Martin, of Wichita Falls, for respondent.

FOLLEY, Justice.

This suit involves the construction of a deed dated June 7, 1939, wherein J. E. Duncan, now deceased, was the grantor and the petitioner, B. W. King, the grantee. The respondent, First National Bank of Wichita Falls, is the trustee and executor under the will of J. E. Duncan and appears in this suit in that capacity.

At the time of the conveyance Duncan and King were the joint owners in fee simple of two tracts of land in Young County, totaling 240 acres, each owning an undivided one-half interest. In the deed Duncan conveyed his half interest to King, reserving or excepting a royalty interest therein. The amount of such interest reserved is the sole controversy in this suit.

The pertinent portions of the deed are as follows:

"That J. E. Duncan, a single man, having never been married, of the County of Young, State of Texas, for and in consideration of the sum of Ten and No/100 Dollars, and other good and valuable consideration, all cash to me in hand paid by B. W. King, the receipt of which is hereby acknowledged, have Granted, Sold and Conveyed, and by these presents do Grant, Sell and Convey unto the said B. W. King, of the County of Young, State of Texas, all that certain undivided one-half (1/2) interest (being all of the interest owned by the grantor) in and to the following described land situated in Young County, Texas, to-wit:

"1st Tract—West one-half of T. E. & L. Company Survey No. 461, Abstract No. 668, containing 160 acres more or less.

"2nd Tract—Southeast one-fourth of T. E. & L. Company Survey No. 460, Abstract No. 667, containing 80 acres, more or less.

"The grantor hereby reserves unto himself, his heirs, successors and assigns for a period of ten (10) years only from this date an undivided one-eighth (1/8) of the usual and customary one-eighth royalty interest reserved by the land-owner in oil and gas and other minerals that may be produced from the hereinabove described land; the grantee, his heirs and assigns shall have the right and privilege of making, executing and delivering oil and gas leases on said land and shall receive all bonuses, rentals and renewals derived from the giving of or execution of any such oil and gas leases provided, however, any oil and gas lease so given shall provide for a royalty of not less than one-eighth of the oil and gas and other minerals produced, saved and sold from the said land.

"The grantor, his heirs and assigns, shall never be required or entitled to join in the execution of any oil and gas lease on said land but the grantee, his heirs and assigns shall give such oil and gas leases.

"(By the term royalty as used in this reservation is meant the usual and customary one-eighth of all oil and gas and other minerals produced, saved and sold from the premises.)

"This reservation shall terminate at the expiration of ten (10) years from this date and the reserved estate shall revert to the grantee, his heirs and assigns."

The petitioner contends that since a one-half interest was conveyed in the land, the grantor reserved only one eighth of one half of the usual one-eighth royalty in the entire 240 acres. The respondent contends that the reservation covers and includes one-eighth of the one-eighth royalty in the entire 240 acres. The trial of this issue in the district court resulted in a judgment for respondent decreeing that the grantor reserved an undivided one-eighth of the usual one-eighth royalty upon the whole land and not an undivided oneeighth of one-half of such royalty. The judgment granted petitioner King the fee-simple title to all the land less an undivided one-eighth of the usual one-eighth royalty derived from the total production of oil, gas or other minerals from the entire land for the ten-year period stipulated in the deed, which interest so reserved was granted to the respondent bank. The judgment of the trial court was affirmed by the Court of...