Tipps v. Bodine, 5000.

• Decision Date: 24 December 1936
• Docket Number: No. 5000.,5000.
• Citation: 101 S.W.2d 1076
• Parties: TIPPS et al. v. BODINE.
• Court: Texas Court of Appeals

Page 1076

101 S.W.2d 1076

TIPPS et al. v. BODINE.

No. 5000.

Court of Civil Appeals of Texas. Texarkana.

December 24, 1936.

Rehearing Denied January 7, 1937.

Appeal from District Court, Rusk County; R. T. Brown, Judge.

Suit by Mrs. W. T. Bodine against Mrs. Effie Tipps and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Caves & Waldrop and W. M. Futch, all of Henderson, for appellants.

Smith & West, of Henderson, for appellee.

JOHNSON, Chief Justice.

April 25, 1930, Mrs. Effie Tipps owned the fee title to a certain tract of land in Rusk county. On that date she executed to Shaw, Shipp & Spivey an oil and gas lease covering the land. It was the usual commercial lease, for a primary term of five years and as long thereafter as oil or gas be produced therefrom. It provided that the lessee should deliver to the credit of the lessor free of cost in the pipe lines to which lessees might connect their wells, the equal one-eighth part of all oil produced and saved from the premises and to pay lessor the market price for one-eighth the gas produced and sold. It contained a clause of defeasance, providing that the lease should terminate unless certain yearly rentals were paid for the privilege of deferring commencement of a well.

On July 30, 1930, while the above lease was in force and effect, the lessor, Mrs. Effie Tipps, executed to Mrs. W. T. Bodine a mineral or royalty deed. The proper construction of this deed, as to the amount or proportion of the mineral interests and rights acquired by the grantee, Mrs. Bodine, is the matter involved in this suit. The pertinent portions of the instrument read as follows:

"Know all men by these presents, that Effie Tipps (a widow) of Rusk County, State of Texas, for and in consideration Ten (10.00) Dollars ($10.) cash in hand paid by Mrs. W. T. Bodine, hereinafter called Grantee, and other good and valuable considerations, the receipt of which is hereby acknowledged, have granted, sold, conveyed, assigned and delivered, and by these presents do grant, sell, convey, assign and deliver unto said Grantee an undivided 1/16 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 Rusk County, Texas, towit: (Here follows description.) together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said lands for oil, gas and other minerals and removing the same therefrom.

"Said land being now under an oil and gas lease, executed in favor of Shaw, Shipp & Spivey, it is understood and agreed that this sale is made subject to the terms of said lease, but covers and includes One-Half of all the oil royalty and gas rental or royalty due and to be paid under the terms of said lease insofar as it covers the lands above described.

"It is understood and agreed that One-Half 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 Grantee and in the event that the above described lease for any reason becomes cancelled or forfeited, then and in that event an undivided One-Half of the lease interests and all future rentals on said land for oil, gas and other mineral privileges shall be owned by the said Grantee ...... owning 1/16 of all oil, gas and other minerals in and under said lands, together with One Half interest in all future events."

The deed was on a printed form and we have italicized the parts written in with the typewriter, and have indicated the blank space not filled in.

Subsequent to the execution and delivery of the above deed by Mrs. Tipps to Mrs. Bodine, the Shaw, Shipp & Spivey lease terminated for failure to drill a well or to pay rental. Thereafter, on March 24, 1934, Mrs. Tipps and Mrs. Bodine joined in the execution of an oil and gas lease to the Octo Oil Corporation, for which the lessors were paid a cash bonus of $1,455, which was divided equally between Mrs. Tipps and Mrs. Bodine. This lease further provided as a part of the consideration for its execution that lessors should receive from lessee an additional $3,880 to be paid out of one-eighth of the seven-eighths lease interests of the oil, if and when produced, in the proportions of one-half to Mrs. Tipps and one-half to Mrs. Bodine. The lessee further contracted to deliver to the credit of the lessors free of cost in the pipe line to which lessee may connect its wells, the equal one-eighth part of all oil produced and saved from the premises and the market price for one-eighth of all gas sold.

The property was developed by the lessee, Octo Oil Corporation, and the oil run to the pipe lines of the Beacon Oil & Refining Company. Upon examination of title for division orders, under which to pay the lessors or royalty owners for their portions of the oil run, the attorney for the Beacon Oil & Refining Company construed the mineral deed from Mrs. Tipps to Mrs. Bodine of July 30, 1930, as having the effect of entitling Mrs. Bodine to receive one-half of the $1,455 bonus money, and to receive one-half of the $3,880 to be paid out of one-eighth of the seven-eighths lease interest of the oil, if and when produced, by the lessee under the Octo Oil Corporation, but as having the effect of entitling Mrs. Bodine to receive only one-sixteenth of the one-eighth oil royalty from said Octo Oil Corporation lease instead of one-half of the one-eighth royalty as claimed by Mrs. Bodine under said lease, and that Mrs. Tipps owned the remaining fifteen-sixteenths of the one-eighth royalty under said lease. The Beacon Oil & Refining Company notified Mrs. Bodine that it would withhold payment of a portion of the royalty claimed by her until her right thereto should be definitely determined. Whereupon this suit was filed by Mrs. Bodine against the Beacon Oil & Refining...