McMahon v. Christmann

• Decision Date: 10 July 1957
• Docket Number: No. A-5696,A-5696
• Citation: 157 Tex. 403,304 S.W.2d 267
• Parties: John L. McMAHON, Jr., et al., Petitioners, v. John J. CHRISTMANN et al., Respondents.
• Court: Texas Supreme Court

Page 267

304 S.W.2d 267

157 Tex. 403

John L. McMAHON, Jr., et al., Petitioners, v. John J. CHRISTMANN et al., Respondents.

No. A-5696.

Supreme Court of Texas.

July 10, 1957.

James E. Prothro, Wichita Falls, Turpin, Kerr & Smith, and Emil C. Rassman and Irby Dyer, Midland, for petitioner.

Paul New and Crenshaw, Dupree & Milam, Lubbock, for respondent.

GARWOOD, Justice (dissenting).

To the extent that it opposes the distinction now drawn between mineral leases and deeds for purposes of the Duhig rule, I agree with Justice Smith's concurring opinion. He may well be correct also in saying that the theory of the instant decision runs counter to that of Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166, although this does not greatly disturb me. However, and contrary to his opinion, I think the Duhig rule, if not declared inapplicable to leases, would require a judgment for the lessees.

The opinion of the Court, despite its polite disclaimer of 'disparagement' of the Duhig opinion, is, to my mind, nothing less than an open condemnation of it even as applied to deeds. And we may be sure that, for all our declared reservations about the rule having become a rule of property in deed cases, we will, on the strength of our present comments on it, be hereafter urged to abandon it altogether, when it suits a particular interest so to contend.

Naturally, where we conclude not to apply a well-known rule to one type of fee conveyance (which an oil lease undoubtedly is, as Justice Smith observes) while continuing to apply it to other types, the law will be just that much more complicated than before, and mistakes will be that much more likely to occur. So the reasons for the difference ought to be rather strong, and I do not so consider the reasons given.

With all respect, I cannot escape concluding from the opinion that in the mind of the Court the real reason for now limiting the Duhig rule is less the purported distinction between deeds and leases than the conviction that the rule is simply bad law, improvidently declared. If the rule is bad law, the instant opinion seems to be the first statement of much consequence that so declares, although we have not infrequently had the Duhig case before us with ample opportunity to have said then what we say now against it. The statement that we disregarded the rule up to a point in Benge v. Scharbauer, supra, is doubtless correct, but, as I read the opinion in that case, such was the effect rather than the intent of our decision. We neither stated nor intimated that the Duhig rule was unsound and therefore should be limited in its application. Now there may be in the books some devastating criticism of the rule which has escaped my attention, but certainly the Court here cites no authoritative condemnation of it beyond the fact that the particular member of the Commission of Appeals (admittedly an excellant judge) who wrote an earlier draft of an opinion in that case did not agree with the final draft required by the Supreme Court. While, of course, one's memory may be faulty, I do not recall that counsel in any of the cases involving the Duhig rule during my approximately ten years on the Court, have made any special attack on the soundness of the rule, and lawyers are not apt to be overly timid in this regard when a dubious decision adversely affects the interests of their clients.

The fact that no prior decision may have directly supported the rule at the time it was written is not necessarily a reason to condemn it, especially when we seem unable to point to any prior decision, or, for that matter, any subsequent one, necessarily and deliberately at odds with it.

Seemingly the main objection made to it is that in some instance that has yet to occur, a mineral lessee will take everything the lessor actually had, including his reserved royalty, merely because the lessor purported to lease with warranty more than he owned. If that should happen, it will certainly not be the first time in our judicial history that a party to an instrument or his heirs or devisees will have suffered for the words to which he put his signature, although he may have done so with the best of intentions and even on advice of counsel. In such cases we often have a strong suspicion that the party in question did not really understand, still less intend, what he was doing, but if the instrument is not ambiguous, we yet remit him to his usually hopeless remedy of reformation for fraud or mutual mistake. See, for a few examples, R. Lacy, Inc., v. Jarrett, Tex.Civ.App., 214 S.W.2d 692, wr. of er. refused; Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563; and the recently decided case of Pich v. Lankford, Tex., 302 S.W.2d 645. The moral or policy distinction between such cases and the Duhig case seems to me rather thin.

The formal reason we give for our distinction between deeds and leases (and thus for our whole decision) is our assumed judicial knowledge that mineral lessees generally prepare the leases themselves and, in the case of fractional interests, prepare them in the...