POWELL, P. J.
This cause is before the Supreme Court upon certified questions from the Honorable Court of Civil Appeals of the Ninth District. Ordinarily, we think it preferable to quote the certificate in full. But such procedure in this case would require us to copy into our opinion 26 pages of typewritten matter, most of which is in single-space type. For that reason, we have decided to abbreviate the certificate, using such portions of it only as will, together with our own summary of other portions thereof, bring the real controversy clearly before the court.
The certificate begins as follows:
"In this case certain issues of law are presented about which we are not in accord and which are involved in the questions submitted herewith. The following statement of the case is sufficient, as we understand the record, to give you a clear understanding of the nature and purpose of this suit:
"On the 9th day of August, 1897, Col. Roger Q. Mills of Corsicana, Navarro county, Tex., entered into the following contract with his friend, Capt. James Garitty, for the purpose of having certain lands owned by him, and which were believed to be oil bearing, developed for oil:
"`This agreement made and entered into this the 9th day of August, 1897, between Roger Q. Mills and James Garitty, witnesseth:
"`That said Garrity agrees to advance whatever money may be necessary to bore two or more wells for oil or gas on the land owned by said Mills, east of and adjoining the town of Corsicana, and for the piping and all other expenses incident to the production, transportation and sale of the oil or gas obtained from said wells, and if said wells when bored shall be dry, the loss incurred shall be borne by said Garitty only. But if oil or gas shall be obtained from any part of said land, it shall be sold and the proceeds applied first to the payment of all expenses incurred by said Garitty and incidental to the oil or gas business, and all profits derived from the business, after the payment of all expenses, shall be divided equally between said Mills and Garitty. It is further agreed that if said first wells prove a success, said Garitty agrees to and shall have the right to continue boring for oil or gas on said Mills tract of 940 acres as fast as the machinery for boring can be obtained, so that one well per month shall be bored and one well to each ten acres of ground, where oil or gas is found in paying quantities. It is agreed that he shall commence near Post Oak creek at a point agreed on between us, and in other boring move in such direction as may be requested by said Mills so long as oil or gas in paying quantities is found in that direction.
"`All profits that may be made from the oil or gas obtained after paying all expenses shall be equally divided between us, but the profits until further provided are to be applied to the boring of wells and to the development of the oil or gas on said land. The location of the wells to be agreed upon between us, and all the business of every kind mentioned in this agreement to be carried on by the joint consent of both of us, and this agreement is to continue in force as long as it is profitable to us to carry on the business of boring for and
selling oil or gas, and it is to terminate whenever said business becomes unprofitable and is abandoned. This agreement shall not apply to any other profits that may be derived from said Mills' land and only includes profits from sale of oil or gas, and it is further agreed that the oil or gas business shall be so conducted as to interfere as little as possible with the cultivation of the land upon which the business is transacted. And it is understood and agreed that reasonable diligence is all that will be required of said Garitty in carrying out his part of the contract wherein he agrees to complete one well every thirty days, and failure to do so on account of accidents while boring, labor strikes, or inability to get material in the due course of business shall not forfeit his contract, or subject him to damages.
"`Witness our hands the day and date above
written. R. Q. Mills
"`Jas. Garitty.'"
On February 17, 1908, Senator Mills wrote his will. The pertinent sections thereof read as follows:
"Second. It is my will that the development of oil on my lands of the Jehu Peoples survey shall be continued after my death as long as Captain James Garitty and my son, Charles H. Mills, shall think it profitable, and for that purpose I reserve from the grants of land of that survey hereinafter contained all the tanks, pipes, wells and other property belonging to Mills & Garitty, and the right to bore for oil, lay pipes, build tanks and all other purposes necessary to carry on the business of Mills & Garitty on said Jehu Peoples survey."
"Fifth. I give to my daughter, Frances M. Richards, 500 acres of land of the Jehu Peoples survey, all of that part of said survey belonging to me which lies north of Post Oak creek in Navarro county, and fifty shares of stock in the Central Texas Grocery Company of Corsicana, Texas. The land herein granted is under the reservation contained in section two of this will.
"Sixth. In addition to the grants contained in the foregoing sections of this will, I give to my three children, Carrie M. Wood, Charles H. Mills and Fannie M. Richards in joint ownership 430 acres of land, all of that part of the Jehu Peoples survey which belongs to me lying south of Post Oak creek near Corsicana, Navarro county, Texas, under the reservations contained in section second of this will. I also give to my three children in joint ownership my homestead in the city of Corsicana. They may hold these properties together or may sell them and divide the proceeds equally among themselves at any time that it may seem best to them to do so.
"Seventh. I also give to my three children, in joint ownership, my interest in the oil business conducted under the firm name of Mills & Garitty, and I give them also in joint ownership all other property of whatever nature of which I may die possessed."
On May 22, 1911, Col. Mills added a codicil to his will, but it has no bearing upon this ease. Shortly thereafter he passed away. His heirs thereupon executed a deed of partition among themselves, accepting the terms of the will and giving full effect thereto.
On April 22, 1920, Mrs. Frances M. Richards, one of the daughters of Senator Mills, executed a deed to B. B. Munsey. The relevant portions thereof read as follows:
"First. All that certain tract or parcel of land situated in said Navarro county, Texas, and particularly described as follows, to wit: 500 acres more or less of the Jehu Peoples survey lying just east of the city of Corsicana and north of Post Oak creek, being all that part of said survey belonging to or owned by me, and being the identical 500 acres more or less devised and bequeathed to me by and in the will of my father, R. Q. Mills, deceased, which will is of record in Vol. 25, page 230, of the Probate Minutes of Navarro county, Texas, and the same tract of land out of said survey received by me in the partition of his estate among his heirs as shown by partition deed executed by said heirs April 10, 1912, and recorded in Vol. 171, page 616, of the Navarro County Deed Records, to which deed and will and the records thereof as aforesaid reference is hereby made for further and more particular description of said land, the intention herein being to convey all of the land on said survey received and owned by me under and by virtue of said will and said partition deed, being the same 500 acres more or less, it being understood that said land and the other property herein conveyed are sold and conveyed as a whole for the lump sum of $125,000, payable as above set forth and not by the acre.
"Second. All of my right, title and interest in and to any and all oil, gas and minerals in and under said land, together with all of my right, title and interest in and to all oil, gas and mineral rights in and to said land, regardless of how such rights may have been acquired or are now owned, the intention hereof being to sell all of the oil, gas and mineral rights in and to said land owned by me together with all of my right, title and interest in and to the Mills & Garitty Oil Company or in and to the oil business conducted under the firm name of Mills & Garitty, under what is known as the `Mills & Garitty Contract,' including all rights, privileges and property real, personal or mixed owned by or accruing to me under and by virtue of the same.
"Third. Any and all other rights and interest I have or may have under or by virtue of said Mills & Garitty contract in and to the producing and operating plant owned by said Oil Company or said firm of Mills & Garitty, including tanks, pipes, wells, casings, pumps, connections and any and all machinery and apparatus of any sort or description.
"This deed is executed and delivered by the grantor and accepted by the grantee with the distinct understanding and agreement that the warranty clause herein contained applies and refers to the land only and that this deed is to be held and operate merely as a quitclaim deed to all of the other property and rights and interests herein conveyed and more particularly described in Sections Second and Third of above description."
The Court of Civil Appeals then...
