Peavy-Moore Lumber Co. v. Duhig

• Decision Date: 15 June 1938
• Docket Number: No. 3288.,3288.
• Parties: PEAVY-MOORE LUMBER CO., Inc., v. DUHIG et al.
• Court: Texas Court of Appeals

Page 688

119 S.W.2d 688

PEAVY-MOORE LUMBER CO., Inc., v. DUHIG et al.

No. 3288.

Court of Civil Appeals of Texas. Beaumont.

June 15, 1938.

Rehearing Denied September 20, 1938.

Appeal from District Court, Orange County; F. P. Adams, Judge.

Suit by the Peavy-Moore Lumber Company, Inc., against Mrs. W. J. Duhig and others to recover certain realty. From the judgment, the plaintiff appeals.

Reversed and rendered.

A. M. Huffman, of Beaumont, for appellant.

Bruce & Bruce, K. W. Stephenson, and Oscar C. Dancy, Jr., all of Orange, for appellees.

WALKER, Chief Justice.

On the 2nd day of May, 1874, the Josiah Jordan survey of 640 acres of land in Orange County was patented to Alexander Gilmer as assignee of Josiah Jordan. On the 27th day of June, 1907, by their general warranty deed, Mrs. C. C. Gilmer, a feme sole, and W. H. Stark, sole executor of the estate of Alexander Gilmer, conveyed to B. M. Talbot and W. J. Duhig 574 3/8 acres of the Josiah Jordan survey, subject to the following reservation: "It is fully understood and agreed that mineral rights are reserved in some of the deeds to Alexander Gilmer conveying portions of the premises herein conveyed and all such reservations of mineral rights are hereby recognized and considered valid and reserved herein. It is further agreed and understood that an undivided one-half (1/2) of the minerals of whatever nature and kind is hereby reserved in all of the remaining portions of said property and rights of ingress and egress in and over said land for the purposes of exploiting and developing the same for oil and other minerals is reserved herein."

Subsequently, Duhig acquired Talbot's interest in the land and by his warranty deed, dated the 21st day of October, 1912, conveyed it to Miller-Link Lumber Company, a corporation, subject to the following reservation: "But it is expressly agreed and stipulated that the Grantor herein retains an undivided onehalf 1/2 interest in and to all the minerals rights or minerals of whatever nature or description in and on said land."

Through receivership proceedings, the Miller-Link Lumber Company's title was transferred to appellant, Peavy-Moore Lumber Company. On the 14th day of May, 1928, in the district court of Orange County, appellee, Mat Lambright, recovered a personal judgment against Duhig for the sum of $641.66. Under execution on that judgment, the sheriff of Orange County, by his deed dated the 2nd day of October, 1928, transferred to Lambright Duhig's interest in the following land: "An undivided one-half (1/2) interest in and to all the mineral rights and minerals of whatsoever nature or description in and to the following described tract of land." (Here follows a description of the land conveyed to Talbot and Duhig by the Stark-Gilmer deed described above.)

On the 2nd day of August, 1935, Mrs. W. J. Duhig and Wm. Gordon Duhig, as the widow and only child of W. J. Duhig, deceased, executed their power of attorney to appellee, K. W. Stephenson, authorizing him to enter upon and take possession for them, and in their name, of all right, title, interest, and estate in the Josiah Jordan survey. Acting under his power of attorney, on the 17th day of August, 1935, appellee, Stephenson, for himself and Mrs. Duhig and Wm. Gordon Duhig, instituted suit in trespass to try title against appellee Lambright, in the district court of Orange County, to recover the title and possession of the Josiah Jordan survey.

On the 13th day of November, 1936, appellant, Peavy-Moore Lumber Company, instituted this suit in the district court of Orange County against appellees, Stephenson, Mrs. Duhig, Wm. Gordon Duhig, and Lambright, to recover the 574 3/8 acres of the Josiah Jordan survey described above. Appellees answered by pleas of not guilty. The trial was to the court without a jury. On the trial it was agreed that the suit against appellee Lambright by the other appellees had been dismissed. The judgment was that appellant recover of and from the appellees the title and possession of the land in controversy, subject to the further order and decree that "as to all the minerals and mineral rights in, on and under" the land in controversy appellant recover "nothing" as against appellees "or either of them". From the judgment appellant has duly perfected its appeal to this court.

Opinion.

We think the court erred in its construction of Duhig's deed to Miller-Link Lumber Company. The lower court gave the following construction to the deeds in the chain of title: Miller-Link Lumber Company, when it took its deed from Duhig, knew that a half interest in the mineral rights was owned by the...