Republic Nat. Bank of Dallas v. Eiring

• Decision Date: 21 May 1951
• Docket Number: No. 6156,6156
• Citation: 240 S.W.2d 414
• Parties: REPUBLIC NAT. BANK OF DALLAS v. EIRING.
• Court: Texas Court of Appeals

Page 414

240 S.W.2d 414

REPUBLIC NAT. BANK OF DALLAS v. EIRING.

No. 6156.

Court of Civil Appeals of Texas, Amarillo.

May 21, 1951.

Golden, Croley & Howell, Dallas, for appellant.

P. B. Randolph, Plainview, for appellee.

MARTIN, Justice.

J. C. Eiring, appellee, sued Republic National Bank of Dallas, Trustee of the Estate of A. M. McMillan, deceased, Mrs. Minnie McMillan, a widow, and Claude Carter McMillian, in statutory trespass to try title to recover title to the Northeast 1/4 of Section 22, Block D-5, Hale County, Texas. The suit resolved itself into a contest as to the title to an undivided 45 acre interest in the minerals in and under said tract as held by the Republic National Bank of Dallas, as trustee of the Estate of A. M. McMillan. The trial court rendered judgment for the appellee, J. C. Eiring, and Republic National Bank of Dallas, appellant, perfected an appeal.

The basis of the cause of action is a deed executed by J. C. Eiring and wife, Carrie Eiring, to D. B. Earnest. This deed is in the appellant's chain of title to the mineral interest as claimed. The appellee asserts that the deed does not contain a sufficient description of the mineral interest to convey title and also alleges that the deed was procured by fraud.

Appellant predicates its appeal on three points of error. The First Point of Error asserts that the description of the mineral interest in the deed from Eiring and wife to D. B. Earnest was sufficient to divest the Eirings of title to an undivided 80 acre fee interest under the Northeast 1/4 of Section 22, Block D-5, Hale County, Texas. Appellant's Second and Third Points of Error will be outlined and discussed followed a ruling on the first point of error hereinabove stated.

Appellant's First Point will be considered under two subdivisions for convenience as to discussion. The first issue is whether the description in the deed from J. C. Eiring and wife to D. B. Earnest in sufficient. The second issue is whether the description of the mineral interest, if insufficient in itself, was cured by a provision in the deed as to division of delay rentals in an oil lease to Kingwood Oil Company and as to ownership of the lease interest on the termination of the Kingwood lease.

The granting clause of the deed in issue as to the description of the mineral interest attempted to be conveyed is as follows: 'An undivided Eighty _____ 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 Hale County Texas, to wit: Northeast 1/4 of Section 22, Block D-5, Hale County, Texas.'

This description is insufficient to divest title out of J. C. Eiring. 'Where a deed contains a blank as to, or in, the description of the property, and such blank is not filled in before delivery, the deed is void.' 26 Corpus Juris Secundum, Deeds, § 30j., page 222; Farmers Royalty Holding Co. v. Jeffus, Tex.Civ.App., 94 S.W.2d 255; Tarrant County v. McLemore, Tex.Sup., 8 S.W. 94; Reserve Petroleum Co. v. Hodge, 147 Tex. 115, 213 S.W.2d 456, 7 A.L.R.2d 288; Francis v. Thomas, 129 Tex. 579, 106 S.W.2d 257; Sullivan v. Fant, Tex.Civ.App., 160 S.W. 612, page 621; Blankenship v. Mott, Tex.Civ.App., 104 S.W.2d 607.

Appellant's strongest contention under his first point is based on the second phase of such point wherein appellant asserts that the description in blank in the deed was cured by reference to a certain mineral lease. In support of this theory, the appellant introduced in evidence the lease which was executed by J. C. Eiring and wife to the Kingwood Oil Company and contains the following provisions:

'And said above described lands being now held by Kingwood Oil Company, it is understood and agreed that this sale is made subject to said lease, but covers and includes an undivided Eighty _____ interest 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-half of the money rentals which may be paid to extend the term with which a well may be begun under the terms of said lease is to be paid to the said D. B. Earnest 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 D. B. Earnest and J. C. Eiring owning an undivided Eighty _____ interest in all oil, gas and other minerals, in and upon said land, together with an undivided Eighty _____ interest in all future rentals.'

The above provision as to the Kingwood Oil Company lease reveals that the 'Eighty' interest is inserted in blank so the deed is still open to conjecture as to whether it refers to acres, percentage or a fractional interest. Appellant says it is apparent that all the blanks in the deed should contain 'acres.' But, it is evident that the blanks could as well be filled in to read 80/100 or other like fraction or as the fancy might dictate. Appellant's reasoning is based upon the theory that since D. B. Earnent is to receive one-half the delay rental on the Kingwood oil and gas lease on the Northeast 1/4 of Section 22, that he is therefore the owner of one-half the minerals under said Northeast 1/4 of Section 22. Appellant also applies the same theory to the clause as to the ownership of the lease interest and future rentals on the termination of the Kingwood lease.

Appellant's theory above outlined is a house of cards based solely upon the primary assumption that the lease to Kingwood Oil Company is upon the Northeast 1/4 of Section 22, Block D-5, Hale County, Texas. The fallacy of appellant's theory is shown by checking the Kingwood Oil Company lease wherein it is found that such lease does not in fact cover the Northeast 1/4 of Section 22, Block D-5, Hale County, Texas, but covers 'the East 1/4 of Section 22, Block D-5, Hale County, Texas.' Therefore, if we are to assume that the rentals payable under the Kingwood lease are the measuring stick for the mineral ownership, then Earnest was the owner of one-half the minerals under the East 1/4 of Section 22, rather than one-half the minerals under the Northeast 1/4 of Section 22, aforesaid. Under appellant's theory, based on the same lease, likewise must fall the reversionary interest as may measuring stick of the mineral interest at issue.

It must be admitted that the expression 'Eighty _____' gives no basis under which we may even guess at the interest at issue. Further, if we take the caluse, 'the lease interests and all future rentals on said land, for oil, gas and mineral privileges shall be owned jointly by D. B. Earnest and J. C. Eiring owning an undivided Eighty _____' and insert 'acres' in the blank as suggested by the appellant, we still have arrived at no sound principle of construction. If Eiring and Earnest, under the expression 'jointly,' own the interest equally as contended by appellant then they own equally an undivided eighty acres, and each therefore owns separately an undivided forty acres. For each of said persons to own on undivided eighty acres the two would of necessity have to jointly own one hundred sixty acres.

Further considering appellant's theory as to the division of delay rental, it is not a sound assumption that the delay rental on an oil and gas lease is always divided according to the ownership of the minerals and in the same ratio. If such an assumption were to be indulged here it is properly answered by reference to a mineral deed inserted in this record by appellant wherein it is recited that McMillan was to receive one-half the money rentals under the Kingwood Oil...