Lewis v. East Texas Finance Co.

• Citation: 146 S.W.2d 977
• Decision Date: 22 January 1941
• Docket Number: No. 7565.,7565.
• Parties: LEWIS et al. v. EAST TEXAS FINANCE CO. et al.
• Court: Texas Supreme Court

Page 977

146 S.W.2d 977

LEWIS et al. v. EAST TEXAS FINANCE CO. et al.

No. 7565.

Supreme Court of Texas.

January 22, 1941.

Appeal from Court of Civil Appeals of Sixth Supreme Judicial District.

Trespass to try title by Stanley Lewis and others against the East Texas Finance Company and others. Judgment for defendants was affirmed by the Court of Civil Appeals, 123 S.W.2d 803, and plaintiffs bring error.

Reversed and rendered in part, and in part reversed and remanded for trial on the issue of damages.

J. F. Colson, of Oklahoma City, Okl., Long & Strong, of Carthage, Nat Gentry, Jr., of Tyler, Davis, Avery & Wallace, of Center, and Dan Moody and Greenwood, Moody & Robertson, all of Austin, for plaintiffs in error.

Butler & Price and Pollard & Lawrence, all of Tyler, for defendants in error Baylor University and others.

William S. Reeves, Weeks, Hankerson & Potter, and Chas. F. Potter, all of Tyler, for defendant in error Toronto Pipe Line Co.

CRITZ, Justice.

As tried in the District Court of Smith County, Texas, this is an action in trespass to try title and for damages. The suit was filed by Stanley Lewis and several others against the East Texas Finance Company and several others. It primarily involves the 7/8 mineral estate in and under a strip of land about 700 feet long and 30 feet wide. This strip of land was formerly a part of what was once known as the Troup and Henderson Road in Smith County. Trial in the district court resulted in a judgment for the defendants. This judgment was affirmed by the Court of Civil Appeals. 123 S.W.2d 803. We refer to the opinion of that court for a full statement of the facts and issues of this case. We will, however, make such statement in this opinion as will render it complete within itself. A proper decision of this case depends upon whether or not a certain oil and gas lease, dated February 25, 1931, from T. D. Wright to P. M. Deason, Trustee, is so uncertain or ambiguous as to require parol evidence to enable a court to give it a definite legal interpretation. We quote the following part of such lease as germane to this opinion:

"Agreement, Made and entered into the 25th day of February, 1931, by and between T. W. Wright, a single man, of Tyler, Smith County, Texas, hereinafter called lessor (whether one or more) and P. M. Deason, Trustee, hereinafter called lessee:

"Witnesseth: That the said lessor, for and in consideration of Ten Dollars cash in hand paid, the receipt of which is hereby acknowledged, and of the covenants and agreements hereinafter contained on the part of lessee to be paid, kept and performed, has granted, demised, leased and let, and by these presents does

"Grant, lease and let unto the said lessee for the sole and only purpose of exploring, drilling, mining, and operating for oil and gas and of laying pipe lines and of building tanks, power stations and structures thereon to produce, save and take care of said products, all that certain tract of land situated in the County of Smith, State of Texas, described as follows, to-wit:

"A part of the Juan Vargas League, Abstract No. 22, about 20 miles southeastwards, from the City of Tyler, being 7.86 acres, designated as tract No. 9 on the plat of the subdivision of the 86-acre tract conveyed to T. O. Wright on the 14th day of October, A. D. 1926, by C. A. Hughes et al., said deeds and recorded in Smith County Deed Records, Vol. 183, p. 579, the Plat of said subdivision recorded, Vol. ___, page ___; beginning at a stake, the N E corner of tract No. 8, and the Northwest corner of this tract; thence S 1 deg W 640 feet to a stake; thence W 3 deg 45' N 561 ft to a stake, the S W corner of Tract No. 8; thence N 1 deg E 615 ft to the place of beginning, containing 7.86 acres, not including the road. (This league laid out to the magnetic North.)

"For the purpose of determining the amount of any money payment hereunder, said land shall be considered to comprise 7.86 acres, even though it actually comprises more or less, but it is lessor's intention to lease, and he does lease hereby, in addition to the land above described, all of the land and interests in land owned by lessor in said sections, grants, leagues and/or surveys as shown by the records of said County and all other land and interests in land owned by lessor in said sections, grants, leagues and/or surveys and/or adjoining sections, grants, leagues and/or surveys and lessor expressly agrees to deliver to lessee any supplemental instrument deemed necessary or requested by lessee for more complete or accurate description of the land and interests thus intended to be leased."

The above lease contract contains many other provisions not necessary to mention here. It will be noted, however, that it contains a covenant of general warranty of "title to the land herein described." As shown by the record, and by the opinion of the Court of Civil Appeals, a correct decision of this case must depend on the effect of the words "not including the road" contained in the above lease contract immediately following the words, "containing 7.86 acres of land."

If we understand their briefs and arguments, counsel for defendants contend that the words, "not including the road," when construed in the light of the entire instrument, have effect to exclude or except the land then occupied by the road from the conveyance both as to the fee and the easement. We further understand that counsel for defendants contend that if the above is not correct, that the words, "not including the road," as and where used in the above instrument, create an ambiguity or uncertainty as to what is meant and therefore parol evidence was admissible to show the intention of the contracting parties. The trial court held the instrument ambiguous on its face, and permitted defendants to introduce parol evidence tending to show that the parties to the contract intended to except or exclude the land in the road from the lease contract, both as to the easement and the fee. The Court of Civil Appeals sustained the ruling of the trial court.

Counsel for plaintiffs, who hold under the lease contract, contended in the trial court and in the Court of Civil Appeals, and here contend, that, as used in the above lease the words, "not including the road," have a definite meaning in law, and therefore cannot render the lease ambiguous. It is then contended by counsel for the plaintiffs that the words under discussion only have legal effect to say that the land in the road is not counted in stating the number of acres leased and to say further that the lease, as to the land in the road, is subject to the easement, held by the State or the county on such land for road or highway purposes. The application for writ of error properly raises the contentions of plaintiffs by proper assignments.

A reading of this lease contract will disclose that it attempts to describe the land leased in two ways, by metes and bounds, and by reference to a certain plat of record in the county. It is, in effect, recited that the land leased is "Tract No. 9," as shown by the plat just mentioned. We here deem it advisable to reproduce the plat mentioned in the deed. It follows:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The land lying between the dotted lines running diagonally across "Tract No. 9" on the above plat is land involved in this suit. Defendants contend that it was excepted from the lease. It seems that at the time this lease was made the road was in use. It has since been abandoned. The county did not own the fee, but only an easement for road purposes.

A reading of the description by metes and bounds contained in the above lease will disclose that the first call is omitted. We think, however, that the description, taken as a whole, including the reference to the plat, is fully sufficient to describe Tract No. 9 shown on the plat. The reference made to the plat in the lease contract constituted the plat a part of the contract. Catlett v. Starr, 70 Tex. 485, 7 S.W. 844. At any rate, we do not understand that the defendants question the description contained in the lease contract, except as above indicated.

Before proceeding further we deem it advisable to announce certain rules of law, and cite and discuss certain authorities.

(a) When parties have reduced their contract to writing, and the terms and conditions of the written instrument are expressed without uncertainty as to the subject matter and nature of the contract, the writing is presumed to contain the whole of the agreement, and contemporaneous parol evidence is not admissible to contradict or vary the terms of the written instrument. Self v. King, 28 Tex. 552.

(b) If a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous. It follows that parol evidence is not admissible to render a contract ambiguous, which, on its face, is capable of being given a definite certain legal meaning. This rule...