Perryman v. Spart an Tex. Six Capital Partners, Ltd., 546 S.W.3d 110

Background

Chain of eight deeds concerning a 206‑acre parcel (originally described as 177 acres) beginning with Ben Perryman conveying the "First Tract" to Gary & Nancy Perryman in 1977. Ben's deed excluded "LESS, SAVE AND EXCEPT an undivided one‑half (1/2) of all royalties ... from the above described premises which are now owned by Grantor."
Ben owned the full estate at the time; after his death his 1/2 royalty passed (1/4 to Gary, 1/4 to Wade -> later to Leasha). Result after deaths: Gary & Nancy held surface and mineral estate and 3/4 of royalties; Leasha held 1/4.
Gary & Nancy conveyed to GNP in 1983 using the same "less, save and except" clause; identical language appeared in subsequent Deed of Trust and Trustee’s Deed, though Trustee’s Deed referenced "now owned by Gary Perryman." Later conveyances split the tract into 178‑acre (to Spartan) and 28‑acre parcels (to third parties).
Dispute arose when lessee pooled wells; EOG (operator) sought declaratory relief about competing royalty claims; Perrymans asserted ownership of royalty fractions; parties cross‑moved for summary judgment.
Lower courts differed: trial court allocated unequal fractional royalties; court of appeals held each party (Menser, Spartan, Gary & Nancy, Leasha) held 1/4 in the 178‑acre tract but left a different allocation for the 28‑acre tract. The Supreme Court granted review.

Issues

Issue	Perrymans' / Plaintiff's Argument	Spartan/Menser / Defendant's Argument	Held
Function of "less, save and except ... 1/2 of all royalties ... from the above described premises which are now owned by Grantor" — does it reserve a 1/2 royalty to the grantor or merely except that interest from the grant?	Clause reserves a 1/2 royalty interest for the grantor (and, where phrase limits to what grantor "now owned," it reserves only 1/2 of grantor's then‑owned share).	Clause is an exception (not a reservation) and the "now owned by Grantor" phrase modifies the described premises, not the royalties; deeds except 1/2 of all royalties from the premises then owned by grantor.	The clause is an exception, not a reservation; "which are now owned by Grantor" modifies "premises," so the deeds excepted 1/2 of all royalties from the described premises (as then owned).
Whether the exception created a Duhig over‑conveyance (i.e., did grantors purport to both convey and reserve more than they owned, triggering equitable estoppel/in reallocation)?	Perrymans/EOG: clause limits exception to grantor's then‑owned share, avoiding Duhig; no over‑conveyance.	Spartan/Menser: clause excepts 1/2 of the entire royalty interest in the premises, which (given prior fractional interests) means parties other than grantor were effectively excluded and Duhig may apply.	Court: No Duhig remedy needed because the language effectuates an exception (not a reservation). The court reaches the same ownership result as court of appeals but based on deed construction rather than Duhig estoppel.
Proper allocation of royalty interests after applying deed language through chain of title (including split into 178‑acre and 28‑acre tracts)?	Perrymans: argue for larger share based on their interpretation; sought reversal of court of appeals allocation.	Spartan/Menser (and EOG to extent participating): argued the parties each own equal 1/4 royalty interests in the tracts.	Held: For the 178‑acre tract, Menser, Spartan, Gary & Nancy, and Leasha each own 1/4. For the 28‑acre tract, Menser, Gary & Nancy, and Leasha each own 1/4; Spartan owns no interest there (the remaining 1/4 belongs to third parties). Judgment modified accordingly.
Whether Gary & Nancy are judicially estopped from claiming royalties because Gary omitted royalties in bankruptcy schedules?	Spartan/Menser: Gary’s bankruptcy nondisclosure estops later claim.	Perrymans: omission was inadvertent oversight; no motive to conceal; royalties were nonproducing then.	Held: Judicial estoppel not applied. Trial court did not abuse discretion in finding nondisclosure inadvertent; Perrymans may claim their royalty interests.
Whether trial court erred in denying Perrymans' motion to transfer venue to Montague County (where the property is located)?	Perrymans: mandatory real‑property venue statute required transfer.	Spartan/EOG: third‑party venue statute ties venue to original suit; Harris County (original venue) controls for joined third‑party claims.	Held: Section 15.062(a) is mandatory and establishes venue of third‑party claims to be the same as main action; venue proper in Harris County. Trial court did not err.

Key Cases Cited

Duhig v. Peavy‑Moore Lumber Co., 144 S.W.2d 878 (Tex. 1940) (estops grantor who warrants title from claiming a reserved interest that causes an over‑conveyance; equitable remedy reallocating interest)
Luckel v. White, 819 S.W.2d 459 (Tex. 1991) (deed construction is a question of law; courts ascertain intent from the deed's four corners)
Sullivan v. Abraham, 488 S.W.3d 294 (Tex. 2016) (last‑antecedent and series‑qualifier canons govern modifier scope; punctuation informs construction)
Hysaw v. Dawkins, 483 S.W.3d 1 (Tex. 2016) (identifies severable rights in mineral estate, including royalty right)
Pich v. Lankford, 302 S.W.2d 645 (Tex. 1957) (distinguishes exceptions from reservations; effective mineral reservation requires clear language)
In re Fisher, 433 S.W.3d 523 (Tex. 2014) (resolving competing mandatory venue provisions; legislative priority language may control)
Omni Hotels Mgmt. Corp. v. Carter, 159 S.W.3d 627 (Tex. 2005) (plaintiff’s initial choice of proper venue is ordinarily honored)
Wilson v. Texas Parks & Wildlife Dep’t, 886 S.W.2d 259 (Tex. 1994) (plaintiff makes the first choice of venue; venue rights and conflict resolution)
Brown v. Gulf Television Co., 306 S.W.2d 706 (Tex. 1957) (where multiple mandatory venue statutes point to different counties, determine the primary relief to reconcile venue)
Langdeau v. Burke Inv. Co., 358 S.W.2d 553 (Tex. 1962) (interpretation of statutory "shall" in venue context; distinguishes mandatory vs. permissive wording)