Smith v. Allison

• Decision Date: 12 December 1956
• Docket Number: No. A-5458,A-5458
• Parties: R. E. SMITH et al., Petitioners, v. H. P. ALLISON et al., Respondents.
• Court: Texas Supreme Court

Page 608

301 S.W.2d 608

157 Tex. 220

R. E. SMITH et al., Petitioners, v. H. P. ALLISON et al., Respondents.

No. A-5458.

Supreme Court of Texas.

Dec. 12, 1956.

Rehearing Denied April 24, 1957.

Further Rehearing Denied May 29, 1957.

Snodgrass & Smith, Neill, Blanks, Lewis & Logan, San Angelo, for petitioners.

Bryan, Suhr & Bering, Houston, Sentell & Rosser, Park & Hemphill, Snyder, David Stephens, Ft. Worth, W. N. Finnegan, III, Houston, for respondents.

SMITH, Justice.

H. P. Allison and others filed this suit against R. E. Smith and others in trespass to try title to recover an undivided 1/4th interest in the oil, gas, and other minerals under the northeast 1/4 of Section 124, H. & T. C. R. R. Co. Survey, Block No. 25, in Scurry County, Texas.

All parties agree that the statement of the nature of the suit by the Court of Civil Appeals is correct. In the interest of brevity, we state only such facts as we deem necessary to a decision of the questions presented for our determination. The deed, dated March 27, 1941, executed by Bertha B. Clark and delivered to Nedra Neely, conveyed by specific description an undivided 1/2 interest in the oil, gas, and other minerals in and under the southeast 1/4th and the northwest 1/4th of Section 124, Block 25.

Following the specific description of the land under which the 1/2 interest in the minerals were being conveyed, the deed contains a paragraph reserving to Bertha B. Clark the right to execute all future oil and gas leases on the conveyed minerals, and then in the next paragraph appears the following general description:

'The parties however intend this deed to include and the same is hereby made to cover and include not only the above described land, but also any and all other land and interest in land owned or claimed by the Grantor in said survey or surveys in which the above described land is situated or in adjoining the above described land. Should the foregoing particular description for any reason prove incorrect or inadequate to cover the land intended to be conveyed as above specified grantor agrees to execute such instrument or instruments that may be necessary to correct such particular description.'

The petitioners, R. E. Smith and others, who claim under subsequent conveyances from Clark, took the position in the trial court that if the description did not, as a matter of law, limit the conveyance to the southeast 1/4th and the northwest 1/4th, then the description was ambiguous, and that Bertha B. Clark intended to convey to Nedra Neely, and did convey to her, only an undivided 1/2 interest in the minerals in and under the southeast 1/4 and the northwest 1/4 of Section 124, and that she did not intend to convey to Nedra Neely any interest in the northeast 1/4 of Section 124.

The petitioners, R. E. Smith and others, further alleged that Mrs. Neely paid Mrs. Clark an agreed consideration of $10 per mineral acre for a 1/2 interest in the minerals in the southeast and northwest quarters of Section 124, and that Mrs. Neely did not purchase and did not pay Mrs. Clark for any minerals in the northeast 1/4 of Section 124.

At the time of this conveyance, Mrs. Clark was the owner of the northeast 1/4 of Section 124, and Sections 123 and 145, adjoining Section 124, as well as the two one-quarter sections specifically described in the deed.

A jury found that Mrs. Clark did not intend to convey to Mrs. Neely an undivided 1/2 interest in the minerals in the northeast 1/4 of Section 124, and judgment was rendered in the trial court for petitioners, R. E. Smith and others. The Court of Civil Appeals upheld the judgment of the trial court wherein it held that the deed was ambiguous and that the evidence supported the finding of the jury that it was not the intention of Mrs. Clark to convey any interest in the northeast 1/4 to Mrs. Neely, but sustained the contention of respondents, Allison and others, that the trial court erroneously submitted the issue of intention to the jury, in that the issue only inquired as to the intention of Mrs. Clark and did not inquire as to the intention of Mrs. Neely, and that, therefore, the finding of the jury that Mrs. Clark did not intend to convey 1/2 of the minerals in the northeast 1/4 of Section 124 was insufficient to constitute a basis for judgment of the trial court. For that reason, the judgment was reversed and the case remanded to the trial court for a new trial. 281 S.W.2d 136.

Both parties are petitioners in this court. Smith and others contend that the Clark deed was capable of more than one interpretation, and that evidence of the surrounding facts and circumstances may be looked to for its construction. They further contend that the judgment of the trial court should be affirmed, because in construing the deed it is the ultimate purpose to ascertain the intention of the grantor, and, further, because the granting clause in the deed from Bertha B. Clark to Nedra Neely limits, as a matter of law, the 1/2 interest in the minerals conveyed to the land particularly described in the deed, plus any strips of land adjoining and a part thereof, but not embraced within the particular description.

The petitioners-respondents Allison and others present twenty points all of which present and preserve their paramount point that the deed unambiguously conveyed the 1/4th mineral interest in the northeast 1/4 of Section 124.

We have concluded to sustain the contention of petitioners, Smith and others, and affirm the judgment of the trial court. That portion of the general description reading:

'The parties however intend this deed to include and the same is hereby made to cover and include not only the above described land, but also any and all other land * * * owned * * * by the Grantor in said survey (124) * * * in which the above described land (NW 1/4 and SE 1/4) is situated or in adjoining the above described land. * * *'

is ambiguous for two reasons:

(1) To adopt the contention of the petitioners-respondents, Allison and others, the deed, even though they now only claim an undivided 1/2 of the minerals in the northeast 1/4 of Section 124, would convey the full fee simple title to Mrs. Neely.

(2) Even though the petitioners-respondents, Allison and others, assert they are not claiming any interest in Sections 123 and 145, the fact remains that the general description does not limit the conveyance to minerals in Section 124, but conveys the land. The granting clause, the habendum clause, and the warranty clause refer only to minerals.

A deed ambiguous by its terms cannot be rendered unambiguous by the mere assertion in the lawsuit that no claim is being made to the land that Mrs. Clark testified she did not intend to convey. Petitioners-respondents, Allison and others, contend that whether the deed might be construed to cover the whole interest is wholly immaterial in view of their nonclaim to the fee, except 1/2 of the minerals in the northeast 1/4. We hold that the ambiguity is found in a material portion of the deed, and that parol evidence was admissible to explain the intention of the grantor, Mrs. Clark, when she executed the deed. The facts show that Mrs. Clark did not intend to convey any interest in the northeast 1/4 of Section 124.

The petitioners-respondents, Allison and others, rely upon the case of San Antonio Machine & Supply Co. v. Allen, Tex.Com.App., 284 S.W. 542, to support their contention that parol evidence is inadmissible to vary the unambiguous terms of a deed. In that case, which was a suit by Allen to recover commissions, the court, among other things, simply held that parol evidence was inadmissible to vary an unambiguous, independent provision for payment of commission on sales, in absence of controversy as to 'territory' involved.

In our case, the deed under question contains material inconsistent provisions that render it uncertain as to the property conveyed. The deed grants 1/2 of the minerals in two specifically described sections, and although the granting clause, habendum clause, and warranty clause confine the conveyance to minerals, yet, the general description fails to limit the conveyance to minerals in the northeast 1/4 and Sections 123 and 145. These recitations clearly indicate an inconsistency between the general description and the descriptive matter identifying the particular tracts described and mentioned in the deed.

The Allisons and others rely upon the case of Laucheimer & Son v. Saunders, 27 Tex.Civ.App. 484, 65 S.W. 500, 501. In that case the deed of trust and deed described certain parcels of land conveyed, and also contained a general clause to the effect that it was the intention of 'Saunders' to convey all of his real estate in Coryell County, whether described or not, except his homestead. The court in that case refused to uphold the contention that special mention and description of particular tracts or parcels of land could be construed as a restriction and limitation upon the other intention, as indicated by the general description conveying all other lands not described. The court held that there was no repugnancy between the two matters of description, and reconciled the two descriptions 'upon the theory in accord with the grantor's evident intention to convey the particular tracts mentioned, and also all other lands.' In that case the 'evident intention' of the grantor was determined from the unambiguous terms of the deed. In the present case we are unable to reconcile recitations of a conveyance of fee simple title to land by general description with a conveyance of only the minerals in the land particularly described.

The petitioners-respondents, Allison and others, contend that the general description is meaningless if we fail to hold that it conveys the northeast 1/4, or, to put it another way, it is meaningless if we hold that the deed is ambiguous and that it was proper to permit Mrs. Clark to testify that she did not intend to convey any...