Loeffler v. King, 15100

• Decision Date: 10 February 1950
• Docket Number: No. 15100,15100
• Citation: 228 S.W.2d 201
• Parties: LOEFFLER v. KING et al.
• Court: Texas Court of Appeals

Page 201

228 S.W.2d 201

LOEFFLER v. KING et al.

No. 15100.

Court of Civil Appeals of Texas, Fort Worth.

Feb. 10, 1950.

Rehearing Denied March 17, 1950.

Geo. E. B. Peddy, and Wm. N. Bonner, both of Houston, attorneys for appellant.

Kenneth Johnson and Guy Rogers, both of Wichita Falls, attorneys for appellees, Roy H. King, Al Horwitz, Sarah T. Horwitz, individually and as trustee of the Gloria T. Horwitz Trust, W. P. Oldom, Alpha Cottom, J. H. Cottom, Lacy Armour, and Laurance Armour.

Cantey, Hanger, Johnson, Scarborough & Gooch, all of Fort Worth, attorneys for appellees, The First National Bank of Chicago, Ill., Hugo A. Anderson, Trustee for The First National Bank of Chicago.

Smead & Harbour and H. P. Smead, all of Longview, attorneys for appellees, Paul B. Scott, Nate J. Ginsberg, Hyman Ginsberg, H. A. Fleishman, H. M. Bell, Trustee for Citizens National Bank of Tyler, Texas, and Central Pipe Line Company.

Frank Bunting; Stine & Stine and Vincent Stine, all Henrietta, attorneys for appellees, Lilyan Chilson and Mary Atkeison et vir.

HALL, Justice.

Appellant Lee E. Loeffler instituted this suit in a district court of Wichita County, Texas against his co-tenants, their lessees, mortgagees and purchasing agencies, seeking an accounting and to establish his title to an undivided one-sixth mineral fee interest in the northeast portion of a tract of land out of J. P. Meade Subdivision of Block 2 of Margarette Ramsey Survey, situated in said County, and hereinafter more fully described. The case was presented to the court and judgment rendered against appellant; hence, perfection of his appeal consisting of four points.

Before considering appellant's points we deem it necessary to state the following facts:

In 1930, H. H. Haggard owned a fee simple title in and to a one-sixth interest in the hereinafter described land, and on March 21, 1930, he made a conveyance to appellant Loeffler and one W. H. Rankin, containing the following provisions, which are under attack in this case:

'That I, H. H. Haggard, of the County of Wichita, State of Texas, has and by these presents does grant, bargain, sell, convey, set over and assign and deliver unto W. H. Rankin & Lee E. Loeffler the following to-wit: 1/6th of the 1/8th Royalty interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described lands situated in Wichita County, Texas, to-wit: Being a part of Block No. Two (2) Meades Subdivision of the West one-half of the Margarette Ramsey Survey Abstract No. 471, and described as follows to-wit;-Beginning at the North-East Corner of said Block No. Two (2) said West half of the M. Ramsey Survey; Thence West along the North line of said Block 2012 Feet to the East line of the West 41 acres of said Block No. 2. Thence South along the east line of said 41 acres 1635 feet stake for corner, Thence East of the East line of said Block No. 2 and the West line of Block No. 3 M. Ramsey Survey, Thence North along said line 1635 feet to place of beginning, containing 80 acres more of less, together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said lands for oil, gas and other minerals, and removing the same therefrom.

'And said above described lands being now under an oil and gas lease originally executed in favor of J. H. Cottom, E. 40 acres, and W. M. Scott, West 40 acres, and now held by Omohundro & Riner it is understood and agreed that this sale is made subject to said lease, but covers and includes 1/6th of all the oil royalty and gas rental or royalty due and to be paid under the terms of said lease.

'It is agreed and understood that 1/6th 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 W. H. Rankin & Lee E. Loeffler, 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 W. H. Rankin & Lee E. Loeffler, Lilyan Chilson, Blanche Haggard and H. H. Haggard Guardian for William Howard Haggard, John Chilson Haggard and Nahcy Catherine Haggard Minors, and each owning Record interest in all oil, gas and other minerals in and upon said land, together with 1/6th interest in all future rents. W. H. Rankin & Loeffler owning a 1/6th interest jointly.'

The trial court construed the above portion of said deed from Haggard to Loeffler and Rankin as conveying a royalty interest as contended by appellees instead of conveying a mineral fee interest as contended by appellant (appellant having bought Rankin's interest in the property). The trial court cited for its authority in its conclusions of law the case of Kennedy v. Ellisor, Tex.Civ.App., 154 S.W.2d 284, writ ref. Said case was decided upon a question of limitation which is not involved here.

Appellant's first point is as follows:

'(A) The error of the Court in holding that the conveyance from H. H. Haggard to plaintiff Loeffler was, and after the expiration of the then existing lease, continued to be only a royalty interest.

'(B) The error of the Court in failing to hold that a conveyance of a 1/6th mineral interest in land, but subject to an existing, producing lease (1/6 of 1/8 royalty under the existing lease being also conveyed), did not ripen into a full 1/6th mineral interest upon abandonment and relinquishment of the lease.'

While construing written conveyances presented to us by this appeal, we will consider the following well known rules of construction:

First: 'Fundamental among these are the rules that the deed should be construed against the grantor, rather than against the grantee, and that the intent of the parties must be sought. The intention which controls is not that which the parties may have had, but failed to express, but the intention which by the instrument they did express. The intent is to be gathered from the whole instrument. All parts of the deed must be considered and, unless conflicting, given effect. This is true even though the material part consists of different sentences and different paragraphs. But this rule of construction does not demand that every part of the deed shall be treated as of equal weight in the solution of every question that may arise. If a particular phrase in the deed is not in harmony with the remainder of the provisions, it should not have equal weight with the other terms used therein when it appears that the other terms have controlling effect in the instrument. Where there is a repugnance between a general and a particular description in the deed, the latter will generally control. The intent is to be arrived at without technical or mechanical rules of construction if such intent can be made to appear from the instrument. Technical rules are resorted to only when there is no other means.' 31-A Tex.Jur., pp. 74-75.

Second: 'Where the terms of the deed are plain and unambiguous, and in the absence of fraud, accident or mistake, parol evidence is inadmissible to vary them or to show the construction placed upon them by the parties at the time or subsequent to the making thereof.' 31-A Tex.Jur., p. 76. See 58 C.J.S., Mines and Minerals, § 221b, p. 589, styled Construction on General.

With the above rules of construing deeds in mind, we find that the instructment is unambiguous and even though it mentions in the granting clause the words 'royalty interest,' yet after designating the owners of the then producing lease covering said interest in said land, said instrument grants to grantees money renals which may be paid to extend the term of said lease. It also conveys to grantees, in in event said lease shall become forfeited or canceled, rights to all the lease interests and all future rentals on said land and all future interests in rents and all future interest in 'all oil, gas and other minerals in and upon said land.' This in our opinion would leave no interest in the minerals or in the royalty for grantor to own. He certainly did not reverse unto himself or except for himself any interest in and to said minerals. (It was agreed between the parties that H. H. Haggard only owned in fee simple a one-sixth interest in the land in question at the time he executed the written instrument to Loeffler and Rankin.) King v. First National Bank of Wichita Falls, 144 Tex. 583, 192 S.W.2d 260, 163 A.L.R. 1128; Clayton v. Ancell, 140 Tex. 441, 168 S.W.2d 230; Newman v. Kerlyn Oil Co., Tex.Civ.App., 189 S.W.2d 701; Porter v. Shaw, Tex.Civ.App., 12 S.W.2d 595; Olvey v. Jones, Tex.Civ.App., 95 S.W.2d 980, writ dismissed; 58 C.J.S., Mines and Minerals, § 221, p. 590; Watkins v. Slaughter, 144 Tex. 179, 189 S.W.2d 699; O'Fiel v. Brooks, Tex.Civ.App., 98 S.W.2d 266, writ refused.

Our holding under the above authorities is that the court erred in finding said instrument conveyed to appellant only a royalty interest. We find it conveyed to grantee the mineral rights owned by grantor, H. H. Haggard, subject only to the then existing producing oil and gas lease. For such reason appellant's point one is sustained.

Production on said lease ceased and on December 17, 1945, appellant and Rankin executed an oil and gas lease to one Horwitz for a primary term of three months. A portion of said oil and gas lease is quoted as follows: 'If, after the expiration of the primary term of this lease, production on the leased premises all cease from any cause, lessee shall have the period of sixty (60) days from the stopping of production within which, at his election, to commence operations for the drilling of another well, deepen an existing well or wells, or otherwise to attempt to restore the production of such existing well or wells, and if such work is so commenced and prosecuted with reasonable diligence and production results therefrom, this...