Pich v. Lankford

• Decision Date: 15 May 1957
• Docket Number: No. A-6165,A-6165
• Parties: L. A. PICH, Petitioner, v. A. H. LANKFORD et al., Respondents.
• Court: Texas Supreme Court

Page 645

302 S.W.2d 645

157 Tex. 335

L. A. PICH, Petitioner, v. A. H. LANKFORD et al., Respondents.

No. A-6165.

Supreme Court of Texas.

May 15, 1957.

Rehearing Denied by June 19, 1957.

Williams, Broughton & Forbis, Childress, Homer L. Baughman, G. R. Pate, Ft. Worth, for petitioner.

James L. Cutcher, Taylor, Richard D. Bird, Childress, for respondents.

CALVERT, Justice.

This case presents question of ownership of mineral fee and royalty interests in a tract of 160 acres of land described as the Southwest one-fourth (1/4) of Section No. 490, Block H, W. & N. W. Ry. Co. Survey, Childress County.

Petitioner, L. A. Pich, is the agreed common source of title.

On September 28, 1928 petitioner conveyed the 160 acres of land to F. D. Turner by a deed containing a reservation of 'one half of the full 1/8th Oil Royalty, or a 1/16th of all minerals produced on said land.'

On May 20, 1929 Turner conveyed the land to Lewis B. Adams by a deed which contained no reservations or exceptions.

On February 27, 1930 Adams and wife conveyed the land to S. J. Higgs by a deed containing a reservation to the grantors of 'one fourth of all royalty, the same being 1/32 of all oil and gas produced from said land.' The one-fourth royalty reserved by Adams was in due course conveyed by him to Cecil H. Canfield and by Canfield to his daughter, Dorothy Canfield Fuehr.

On October 18, 1941 Frank S. Magers, administrator of the estate of S. J. Higgs, deceased, conveyed all right and title of S. J. Higgs in and to the land to Collins Howard by a deed which contained no reservations or exceptions.

On January 26, 1943 Collins Howard and wife conveyed the land to W. J. Sharp and wife, Emma E. Sharp, by a deed which, following the description of the land, contained the following language: 'Save and Except an undivided three-fourths of the oil, gas and other minerals in, on and under said land, which have been heretofore reserved.'

On September 26, 1947 W. J. Sharp and wife conveyed all of Section 490 to respondents, A. H. and B. L. Lankford, by a deed which, following the description of the land, contained the following language: 'Save and Except an undivided three-fourths of the oil, gas and other minerals in and under the Southwest Quarter thereof, and an undivided one-fourth of the minerals in and under the remainder of said survey, which minerals do not belong to the grantors herein.'

On November 15, 1955 Collins Howard and wife quitclaimed to petitioner, Pich, all of their right, title and interest in the three-fourths of the minerals 'excepted and reserved' by them in their deed to the Sharps, and on December 12, 1955 the Sharps quitclaimed to petitioner all of their right, title and interest in the three-fourths of the minerals in and under the 160 acres of land 'reserved and excepted' by them in their deed to the respondents.

Respondents were plaintiffs in the trial court. Petitioner and Mrs. Fuehr and her husband were defendants. The petition on which respondents went to trial contained statutory allegations in trespass to try title to the entire fee title to the 160 acres of land, with specific allegations that the reservation by petitioner in the deed of 1928 was a reservation of 'a one-half (1/2) undivided interest in and to all of the oil, gas and other minerals in and under said lands' and that the reservations by Adams in the deed of 1930 was a reservation of 'a one-fourth (1/4) undivided interest in and to all the oil, gas and other minerals in and under said lands', which reservations, they alleged, conferred no title on the grantors but were illegal and void and constituted clouds on respondents' title which should be removed and cancelled. In a separate count they alleged that the exception in the deed executed by the Howards to the Sharps on January 26, 1943 did not reserve any interest to the grantors and that 'the pure intention of the grantors in said deed was to convey all of the interest in said lands that the grantors owned'; that the reservation created a cloud on petitioners' title which should be removed and cancelled. The petition contained no specific allegations with reference to the exception contained in the deed executed to respondents by the Sharps.

In their answer petitioner and Mrs. Fuehr pleaded not guilty and disclaimed as to all interest in the land except as to 'an undivided three-fourths (3/4) interest in and to all of the oil, gas and other minerals in, under and that might be produced from said land.' By was of cross-action petitioner and Mrs. Fuehr then sought by a statutory trespass to try title action to recover title to and possession of the undivided three-fourths (3/4) interest in the minerals. To the cross-action respondents had a plea of not guilty and a general denial.

No evidence other than the instruments heretofore described was tendered or introduced on the trial. At the conclusion of a trial before the court the trial judge adjudged Dorothy Canfield Fuehr to be the owner of one-fourth (1/4) of the one-eighth (1/8) non-participating royalty, petitioner, L. A. Pich, to be the owner of one-half (1/2) of the one-highth (1/8) non-participating royalty, and respondents, A. H. and B. L. Lankford, to be the owners of the fee title to the 160 acres of land, less the royalty interests adjudged to Mrs. Fuehr and to petitioner.

Both petitioner and respondents appealed from the judgment, petitioner asserting in the Court of Civil Appeals that the tiral court erred in failing to adjudge to him the title to three-fourths (3/4) of the minerals from which a one-fourth (1/4) royalty interest should have been carved and awarded to Mrs. Fuehr, and respondents asserting that the trial court erred in awarding a recovery of any interest to Mrs. Fuehr. The Court of Civil Appeals affirmed the trial court's judgment. 295 S.W.2d 749. Respondents did not file an application for writ of errof and the judgment awarding Mrs. Fuehr title to one-fourth (1/4) of the one-eighth (1/8) non-participating roylaty has therefore become final and is not in issue in this court.

The real question to be decided is as to the effect of the language quoted from the deeds executed by the Howards to the Sharps and by the Sharps to respondents.

Petitioner contends that the legal effect of the language was to except from the grants in the deeds a three-fourths (3/4) undivided interest in and to the minerals in place and that title to that interest never passed to respondents and they never became the owners thereof; that the fact that a false reason may have been given for the exception does not alter the operative effect thereof. He further contends that since the interest was excluded from the grants in the deeds it necessarily remained in the grantors whose rights, title and interests petitioner holds.

Respondents contend that the deeds must be construed most strongly against the grantors and so as to pass the largest estate possible to the grantees, and that when so construed it is apparent that the Howards and the Sharps did not intend by the language in their deeds to reserve unto themselves any interest or estate in the minerals in place, but, in order to protect themselves on their warranties, intended only to except from the grants in the deeds the one-half (1/2) and one-fourth (1/4) interests in royalty which had been theretofore reserved in the deeds executed by petitioner and Adams.

The Court of Civil Appeals agreed with respondents' contention, citing as authority for its conclusion Klein v. Humble Oil & Refining Co., 126 Tex. 450, 86 S.W.2d 1077; Methodist Home v. Mays, Tex.Civ.App., 273 S.W.2d 444, writ refused, n.r.e., and Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617. We agree with petitioner and disagree with respondents and the Court of Civil Appeals.

(1) The decisions of this Court have established that an interest in minerals in place and an interest in royalty are separate and distinct estates in land. Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563; Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166; Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617. See also Palmer v. Crews, 203 Miss. 806, 35 So.2d 430, 4 A.L.R.2d 483. It is also well established that an interest or estate in land excepted from a grant is excluded from the grant and does not pass to the grantee. King v. First National Bank of Wichita Falls, 144 Tex. 583, 192 S.W.2d 260, 262, 163 A.L.R. 1128; Reynolds v. McMan Oil & Gas Co., Tex.Com.App., 11 S.W.2d 778, 781, motion for rehearing overruled, 14 S.W.2d 819; 14 Tex.Jur. 958, Deeds, sec. 175.

(2, 3) There is no patent ambiguity in the Howard and Sharp deeds. The deeds do not except from the grants only such roylaty interests or interests in the minerals as 'have heretofore been reserved' or that 'do not belong to the grantors herein'; they except an undivided three-fourths (3/4) interest in the minerals in place in plain and unambiguous language. The quoted phrases are but recitals which purport to state why the exceptions are made. The chain of title conclusively negatives the recitals. It shows they are flase. The giving of a false reason for an exception from a grant does not operate to alter or cut down the interest or estate excepted, nor does it operate to pass the excepted interest or estate to the grantee. Roberts v. Robertson, 53 Vt. 690, 38 Am.Rep. 710; Ambs v. Chicago, St. P., M. & O. Ry. Co., 44 Minn. 266, 46 N.W. 321; Georgia Vitrified Brick & Clay Co. v. Georgia R. & Banking Co., 148 Ga. 650, 98 S.E. 77; Oldham v. Fortner, 221 Miss. 732, 74 So.2d 824; Gibson v. Sellars, Ky., 252 S.W.2d 911, 37 A.L.R.2d 1435.

In Roberts v. Robertson, supra, the Vermont court dealt with a deed conveying specifically described land and containing the following clause: 'Said J. C. Roberts reserving lots sold, Nos. 1, 2, 3, * * * 32, 33.' Lots 32 and 33 had not, in fact, been sold. With respect to the effect of the language used in the reservation, the court said:

'Here lots 32 and 33 are...