Porter v. Shaw

• Decision Date: 21 December 1928
• Docket Number: (No. 3572.)
• Parties: PORTER et ux. v. SHAW.
• Court: Texas Court of Appeals

12 S.W.2d 595

PORTER et ux. v. SHAW.

(No. 3572.)

Court of Civil Appeals of Texas. Texarkana.

December 21, 1928.

Rehearing Denied January 10, 1929.

Appeal from District Court, Rains County; Grover Sellers, Judge.

Action by J. T. Shaw against R. J. Porter and wife. From an adverse judgment, defendants appeal. Affirmed.

O. H. Rodes, of Emory, and Jones & Jones, of Mineola, for appellants.

Garrett & Berzett, of Emory, for appellee.

HODGES, J.

On November 15, 1922, R. J. Porter and wife executed the following written instrument "The State of Texas, County of Rains.

"Know all men by these presents: That R. J. Porter, of the County of Rains, State of Texas, has and by these presents does grant, bargain, sell, convey, set over and assign and deliver unto J. T. Shaw the following, to-wit:

"One-sixteenth 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 Rains County, Texas, to-wit: (The tract referred to consisted of 62.2 acres. Further details of the description are omitted as immaterial.)

"And said above described lands being now under an oil and gas lease originally executed in favor of ______, and now held by _____, it is understood and agreed that this sale is made subject to said lease, covers and includes one-sixteenth 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 one-sixteenth 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 J. T. Shaw; 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 J. T. Shaw and R. J. Porter and ____, each owning one-sixteenth interest in all oil, gas and other minerals in and under said land, together with ____ interest in all future rents.

"To have and to hold, the above described property together with all and singular the rights and appurtenances thereto in anywise belonging unto the said J. T. Shaw, his heirs and assigns forever; and we do hereby bind ourselves, heirs, executors and administrators to warrant and forever defend all and singular the said property unto the said J. T. Shaw, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. It being agreed and understood that this contract shall end four years from the date of the contract."

The record shows that the land referred to in the above instrument formerly belonged to Shaw, and had been conveyed to Porter by W. F. Mann, who held the title for Shaw. It seems to have been a part of the contract of the sale that Shaw should retain an interest in the minerals in the land, and this instrument was executed for the purpose of preserving that right. It is undisputed that the land was not leased at the time the above contract was made, and all parties interested knew that it had not been leased. The evidence also shows that in November, 1923, the land...