King v. First Nat. Bank of Wichita Falls, 14698.

• Decision Date: 22 June 1945
• Docket Number: No. 14698.,14698.
• Parties: KING v. FIRST NAT. BANK OF WICHITA FALLS.
• Court: Texas Court of Appeals

Page 347

189 S.W.2d 347

KING v. FIRST NAT. BANK OF WICHITA FALLS.

No. 14698.

Court of Civil Appeals of Texas. Fort Worth.

June 22, 1945.

Rehearing Denied September 7, 1945.

Appeal from District Court, Young County; Floyd Jones, Judge.

Action between B. W. King and the First National Bank of Wichita Falls, trustee, to determine amount of mineral royalty. From an adverse judgment, King appeals.

Affirmed.

Marshall & King, of Graham, for appellant.

Harris & Martin, of Wichita Falls, for appellee.

McDONALD, Chief Justice.

On and prior to June 7, 1939, the fee title to a certain tract of land in Young County was owned by appellant, B. W. King, and by J. E. Duncan, each owning an undivided half interest. On that date Duncan conveyed his half interest to appellant, reserving, however, an interest in the oil, gas and other mineral royalty. The controversy here concerns the amount of royalty so reserved by Duncan, the grantor.

The provisions of such deed relating to the royalty reservation read as follows:

"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."

It is the contention of appellant that the royalty reservation reserved to Duncan, the grantor, one-eighth of one-half of one-eighth of the royalty, and not one-eighth of the entire one-eighth royalty. The trial court rejected appellant's construction of the reservation, and held, in a trial without a jury, that the deed reserved to Duncan one-eighth of the entire one-eighth royalty.

It is settled that a grantor, in a case such as this, may reserve an interest in the minerals, or may merely reserve an interest in the royalty. Schlittler v. Smith, 128 Tex. 628, 101 S.W.2d 543. There is no disagreement between the parties here over the fact that the deed reserves only an interest in the royalty. The difference is only as to the amount of the fractional interest of the royalty so reserved.

Appellant asserts, correctly, that we should endeavor to ascertain the intention of the parties, and especially that of the grantor, from the words used, and that, in event of doubt, the deed should be construed against the grantor and in favor of the grantee. He also asserts that we should interpret the words used in connection with the subject matter of the deed and the surrounding circumstances. His argument is that Duncan conveyed only a half interest in the land, and that he undertook to reserve only one-eighth of the half of the royalty which was, except for the reservation, conveyed as a part of the fee simple estate granted by the deed. Appellant says that if we will give effect to all parts of the deed, and to every word therein, we will conclude that the deed evinces an intention to reserve only one-eighth of one-half of the usual one-eighth royalty.

We find no fault with the rules of construction announced, but differ with appellant in the application of the rules to the reservation contained in this deed.

The only decision cited by appellant, involving a reservation of royalty, or mineral interest, in a deed conveying a fractional interest, is that in Hooks v. Neill, Tex.Civ. App., 21 S.W.2d 532, 534, writ of error refused. We have given careful study to that decision, and believe that it is not in conflict with the view we have arrived at in this case, or with the decisions in two other cases cited infra. In Hooks v. Neill, the grantors owned a half interest in the land in question. They conveyed their interest by warranty deed, reserving to themselves, to quote from...