American Republics Corporation v. Houston Oil Co.

the truck 'held that sylvania Supreme Court contributory negli- guilty

driver was Pa. law, stating, 358

gence as a matter of page 893: page at 57 A.2d “ ** * follows, It guilty of

matter of law that the driver acci to the

negligence which contributed damage sued

dent that caused where plainly case plaintiff. This is upon (the) ‘person entered who has so instantane struck

railway (was) track he presumption that ously to rebut the listen; no

performed duty look and his honestly possible being other inference failed to he from the evidence than York R. Pa. Ehrhart v.

do so.’ See the other 566, 570, 571, On 811. A. look, hand, actually it at once he did if undeniably apparent,

becomes circumstances, he surrounding danger and must an obvious

chose to test the risk assumed to have

therefore be held v. Moses care. See proper

of his lack of Company, Pennsylvania R.

Northwestern 537, 540, A. 166.”

258 Pa. ruling of con- be noted Leaman case

tributory negligence the truck despite the

was made killed, presumed

driver, been having law, have exer- Pennsylvania

under the judice In case sub care.

cised due struck at driven Fenimore was

vehicle trolley the east-bound the instant it reached

tracks, stronger case making out a much contributory' negligence than

Leaman case. CORPORATION REPUBLICS

AMERICAN TEXAS. OF HOUSTON OIL CO.

No. 12255. Appeals Court of States

United Fifth Circuit. WALLER, Judge, dissenting. Circuit' March 1949. Rehearing May 23, Denied 1949.

72-9 spect as thereto, Company, Houston Oil declaratory plaintiff, brought a this suit for construction, a and obtain a effect, of two con- as to the determination instru- temporaneously executed written “conveyance” ments called and “contract making and conveyance”, conveying and provisions development of minerals for the land, to obtain many of and tracts u“nder paid money judgment for amounts plaintiff acquire of assert- an interest %s Beaumont, Tex., Beeman Strong, of and outstanding title ed as an and established McCracken, O. A. and Thomas Fletch- Jr. League, one of tracts the Arriola er, Houston, Tex., appellant. both of for conveyance. “contract cluded Chiles, W. H. Blades and M. C. both of portion was conveyance” its first and Houston, Tex., Pipkin, Charles S. of Beau- “convey- the terms of word for word in mont, Tex., Whitworth, B. F. of Hous- and further terms reciting, “the ance”. Then ton, Tex., appellee. follows”, it went on of this contract are provision HUTCHESON, Before for the WALLER, make and otherwise, LEE, minerals, Judges. jointly either Circuit carefully spelled provisions according HUTCHESON, out Circuit Judge. Alleging that controversy1 large, at in the claim arisen Looked plaintiff

between and to the in them notwithstanding defendant with re- recitations alleges gas portion controversy “Plaintiff and oil a full one-half plaintiff plain- tract, produced has arisen between ant with and from such and defend- respect proper por- to the construc- entitled to receive tiff is legal and effect of said instruments deduct- same as remain after tion of respective fights and portion ing and liabilities such full plaintiff by plain- and defendant thereunder in same as was owned interest plaintiff, cases in which on the effective tiff time. Plaintiff contends that at such thereof, date plaintiff owned an interest oil defendant such instances gas particular estate in tract of one- are each entitled to receive simple land less than the title. gas produced fee portion half of the oil and gas “Plaintiff contends that under the terms estate from such interest oil and provisions of said de- instruments in plaintiff of land as said tract predecessors fendant and in title ac- on effective said in- date quired an undivided one-half interest struments.” gas any such title to oil and grantor estate in “Whereas, heretofore has particular large acreage tract of land in Texas covered been the owner of a thereby plaintiff owned on Louisiana, the effective the States of Texas and date thereof. Aug. Defendant prior contends “Whereas, predecessors acquired by and its grantor in title made sale some of the lands . provisions the ments, terms. of said instru- (relatively in total above mentioned small * * * * * * express- quantity) but simple gas fee title to ly reserving the entire oil minerals in and under the estate all tracts of in Texas^ cov- sold, land so and with the mak- thereby plaintiff any ered which ing disposition minerals; sale and of such title on date there- whatever the effective regardless of, whether “Whereas, Aug. 4, 1916, deed dated simple owned foe entire oil hereby referred to made a here- gas estate not. grantor therein of, sold to Trust the said Es- mentioned, “Defendant contends that all instanc- tate all the lands at that above owned, es in than less time owned in the State Texas simple gas Louisiana, expressly entire fee title to the oil and said tract,of any particular reserving estate in land in oil and in and un- rights perpetual lands, on State Texas the effective date der such * * instruments, jointly developed egress *; and, ingress of said un- Operating “Whereas, der the terms of said Contract Trust Estate Conveyance, defendant should receive the owners' the mineral instruments, interest”, account half tak- loss

contrary, effect of paid to ac- moneys face and together en the adverse interest or on their construed by, quire upon, be borne interpretation it must fall given them Houston, parties, not, defend- grantor. contended convey Republic ant to undivided “a full to de- an admission: The was defense in and one-half in minerals interest” the full fendant to own a did claim by reference. the lands described de- as out and interest minerals set was, by create plaintiff, “to as contended it; in to a denial scribed the deed pafts equal ownership and in joint declare “contract and “conveyance” and the the in minerals such Houston and in equal acquired only an conveyance” it had grantors as of the instru- date owned on the plaintiff ownership in whatever with the ments.” time the minerals therefore, deed; denial, making and a the focus, claim in was: Viewed closer any mon- anywise liable it was in to %s interest outstanding ad- buy in the eys paid out to had under one of the tracts dealt minerals title. verse with in had been asserted the instruments to the court acquired tried established; fully and was that Houston The cause and, upon insist- plaintiff’s jury, of itself and interest for the benefit without parties could Republic, rights of the the defend- and ence and ant, successor, refused, and a construction properly were determined be evidence, instruments, any part cost on the unaided refusing, pay oral, statements express ground; documentary terms and as occurring, Houston, Republic conveyance transactions be- and made acts and execution, of a undivided one- came the owner “full both before and conveyed), large premises in land situated the State amount on the reserved Estate, Texas, here never the fee in said acting and said Trust which Grantor of owned * * respectively representatives *; and, granted, authorize, duly “Whereas, Es- Trust thereunto and the rights sold, conveyed, bargained, here- and do owners of mineral and tate are the convey by grant, sell, (they) bargain, A Full fee in once certain lands the selling owned, To In And which the mineral One-Half Interest but Undivided reserved; And Mineral All Of Eights, Gas And were The Oil Non-Metallic, “Whereas, Part, Metallic Or the Parties First Whether severally Any collectively aforesaid, Now now In And And All Lands but as Under being By (ex- the oil and Either of Them sole owners all Owned Them Or only excepting pressly under all in Navar- amd all other minerals County, promote Texas), land, ad- ro of Texas such in order to the State development Louisiana, particularly same, propose vance and the State spe- including herein, excluding (without other not now to to the Grantees cifically severally forth, described) all certain tracts as set those hereinafter * n * interest in and of land all one-half gas, oil, rights, mineral amd wheth- Grantor, gas, non-metallie, “And er metallic or in the manner as oil and min- and under the terms as hereinafter forth, thereby making set the erals, Estate to all other said Trust seeking respectively do warrant the title to make granted privileges more valuable the other one-half of all and to the sold, persons claiming same, or thus all reserved. through part thereof, by, “Now, or under consideration premises respec- provi- Estate, and of the terms and such Grantor and Trust Operating tively, except privi- to such sions of a certain Contract and titles and bearing leges Conveyance, herewith, have been out of even date divested hereby prior parties, 20, 1916, guaran- the same referred them to Oct. between every pur- premises made a hereof for tee free subject pose, always (Emphasis supplied.) to such terms contract liens.” provisions, and in As consideration in the instrument and as recited expenditures payments paid, made and to the consideration for their ex- $500,000.00, made Grantees ecution which half accordance Operating paid the Conveyance (to of said terms Contract in cash and the other half ex- payments pended operations. secure which expenditures express lien vendor’s n evidence themselves, permitted, over defendant’s n objections, interpretative range. especially to take the widest as aided construc- evidence of their received aid throughout defendant, insisting tion, granting overcame unambiguous, their were instruments es- conveyance, prevented an words of the clear, legal and that this meaning and effect required toppel against plaintiff, and arising ex- must be resort determined without in its favor. evidence, urged upon vigorously traneous plain- judge, agreeing The district that, law of Tex- court under the settled way, tiff as, made full exhaustive plaintiff, repre- having, upon positive findings which, though held that whole, he ownership of its sentations unambiguous instruments were and that conveyed to defendant “a full one-half un- they mean- construed had the it, on their face divided interest” in es- ing by plaintiff, and effect for topped contended of from now diminution he and found acts further that their grant, and, warranty, contrary its its to to prac- them a parties given conduct the 'had defendant, any part of the full one-half interpretation tical effect. to the same it conveyed. interest followed, judgment plaintiff A for and Plaintiff, part insisting on its that there appealed. defendant has operating were other terms the contract which, conveyance,3 and Here, below; with taken its that the urging as it did purpose (see 2, supra), clause note the stat the suit instruments measure of the consideration, ed parties, unambiguous, and the reservation of and their are pur- Sec. 2. “All such for the duetion arises free of cost to Grantor » * * * poses hereof shall be into units divided approximately completion 640 acres. all Each and Sec. 6. “After of deferred separate payments (unless of such units shall have considera- be shall * * * application tion and hereunder. under continued with the fund created and, event, hereof, After unit lines have been defined such Sec. changed ownership shall not expended) be without consent fund is and such parties upon properties at interest.” of the of all minerals all comple- hereby Sec. 3. “Prior and until the fixed and covered shall be deemed * » * payments proportions tion of the deferred here- terms and as final operations' premises all provided, for the de- and first velopment of (Houston such minerals shall be con- Southwestern) or Oil and (Republic) may ducted (Republic), respectively, Grantees Grantees operations interest proceed of the Grantees shall be that with one one-half, of an undivided (except and the interest more of units hereinafter ** (Houston Oil) thirty days Grantor provided) and Trust Es- If within *. collectively tate shall given par- be that of an un- after such notice such other * * * join ty operations divided one-half in and to the such shall elect to particular being developed; writing party unit or units and shall so declare * * * expense operations giving notice, and all and risk and lia- then all such bility arising operations upon joint out of such to ob- thereafter on said unit shall be production borne, tain a shall expense, be one-half be account and risk, conducted as to oth,er Grantees accounting produc- and the liability, half Grantor and Trust Estate.” provided in the same manner as tion kept If, be Sec. “Accurate accounts shall 4. four how- Sections three and hereof. monthly by Grantees, ever, giv- party and rendered to whom such notice is production join respectively, of all of minerals within such en shall not time elect to upon premises party giving kinds or units which of all such notice shall developed pro- proceed right develop, have been and rendered then the ducing by expenditure party given such deferred whom such notice is to so * * * Grantees, payments. join, existing par- shall own and the interest of the appropriate ty given one-half thereof and the to whom such notice is appropriat- upon shall other half be owned minerals such unit or units shall (Houston Oil) terminate, ed Grantor as to oil and all such interest shall vest gas exclusively conducting party Trust Estate as minerals, subject development operations oil other to be de- royalty party on the surface to Grantor livered other 1/16 pipe available, products produced or into such Grantee lines mineral and saved.” upon any, pro- if the unit from which such merely owned, mass evi- its tbat clear; the vast declared it

meaning deed in its dence, parol documentary, received was, im- construction, aids to reservation title; (2) chance for objection and of the other must be construed properly admitted over grant- completely disregarded must irrele- dignity force and ; that, words; vant their face is not es- ing construed on (3) received, not, topped by evidence to assert it other defendant; did, they required de- judgment as it 'had declared to. interest; appellant must fendant full undivided one-half insists that (4) notwithstanding and here its declara- reversed rendered it. of war- ownership, and its covenant district Agreeing with the ranty has now in its assert unambiguous and the instruments will ef- favor a title the minerals so, appellant since this is with the fect a diminution of the full one-half determined meaning their can and must be terest warranted them, the vast mass a reading claim by, through, their construc evidence received aid admitted,4 improperly tion we turn to Further, examina a after careful a determine therefrom reading of them to it, opinion if the tion of we that they should be as con whether construed admittedly lengthy things whole record of whether, below, by plaintiff tended both sides said and on be considered done appellant, be by they should as insisted evidence, to, and looked there as admissible construed as contended supports is in it the district nothing which conclusion, turning, judge’s finding we are in no doubt that

50 placed practical wrong in construction conclus have district his took, inconsistent which is (1) not, that defendant on instruments ions:5 declared, plaintiff’s defendant’s, with one-half with consistent undivided in in contentions.6 the minerals 613, Davis, of in all one-half interest and to’ Davis Tex. 175 S. divided v. 141 4 rights.” oil, gas 226; Texas mineral Lewis East Finance sueh W.2d v. 149, 977; concludes, An as a mat- Tex. XIV. Court 136 146 S.W.2d Bruhlmey law, plaintiff, Drilling Co. Kerr er of Houston Oil derson & er, Co. v. 574, 800, Texas, represent, by instru- 127 of did Tex. 136 S.W.2d not 134 1217; DeMontalvo, con- Tex. ments of Nov. here under A.L.R. Garza v. Kynerd sideration, gas Sup.1949, oil and owned all of the 217 S.W.2d 988. Cf. that it Cir., 160; Hulen, Flori in and under the various tracts of 5 F.2d South 5 Breuchaud, July 28, Cir., to referred and that in the Decree da Lumber Mills v. 5 say estopped to is F.2d 490. convey Republic concludes, to Produc- as a mat- it did “VII. The Court Company law, ‘Operating a one-half undivided inter- Contract tion est ter of that the conveyed gas Conveyance’ Republic in and to oil in and to all not, subject estop- Company, under such ped land and to is its com- tracts Production pliance say it con- conditions to said instruments with the terms and veyed Co, thereof, to an un- in Production one-half interest gas rights oil divided one-half interest the oil and were and to Company of Texas Houston Oil it in owned then owned the State Texas). (except (except County, Navarro Navarro Texas Texas the State Texas), concludes, County,- at the time the instru- “XV. the Court While Con-, ‘Opex-ating law, matter ment was executed.” ‘Conveyance’, Conveyance’ concludes, as a matter tract are The Court “IX. unambiguous plaintiff’s law, and that con of the ‘other the reservation thereof, cause, oil, gas rights, struction as made in this and mineral one-half’ of the non-metallic, correct, is nevex-theless Court further metallic or whether concludes, that, law, as matter of re now owned under ambiguous gai-dless them, appearing them, same either of be whether parties, by ‘Operating unambiguous, wording or. acts and their Contract and placed prac equal conduct, - Conveyance’, have must construed as of be upon dignity every construction such instruments similar tical re- force ' jn plaintiff’s granting spect with ‘a contention the words full un- consistent to quite Republic thought put completely is true that We aside then all purchase of interest was of negotiations when the about evidence before made, gran thought, executed, acted on the contracts those were because were, they tors declared themselves negotiations integrated in the writ became be, to to the min full owners the title ten claim here contracts and there is no with, aside, too, and that for a erals the instruments dealt reformation. We having thereof things a full one-half these that were done Republic, executed, remained owners instruments were because to Republic therein, ac thought and change meaning but this effective Republic’s on grant it, was induced have things these would grantor’s positive declaration by Republic based circumstances done title, as of, the deed that it the full purpose owned which showed a waiver or a deny estops waive, sertion which rights, Houston now its known and we examine it.7 instruments suit in the them, examining settled law of So Texas. true, too, It is in earlier con hesitancy we saying no Hous portions over title to other troversies ton by asserting in its deed that conveyed, the lands wont the minerals, and conveying with a cooperate defending Houston special covenant of warranty a full undivid the suits and in to the contributing ‘costs them, ed one-half interest abso and to thereby. outlays incurred therein and lutely completely estopped itself contrary deed from ever But none of with the this inconsistent its declaration that own whole legal position here, acquired it takes and could and a full would sell properties a full one-half one-half of them and from ever grantors no asserted owned. It means against warranty its title in diminution of a more than that engaged in a conveyed. one-half it had common enjoying friendly venture and re- lations with each naturally, other would Lindsay Freeman, 259, In v. 83 Tex. 18 did, up against a common front 727, S.W. Corzine’s Heirs v. Wil enemy, common those instances liams, 499, 399, Tex. 22 85 S.W. the Su title, Republic where there were losses of preme early adopted Court of Texas in its press just forebore to its claims estoppel by fullest extent the doctrine of Houston. deeds,8 adoption recitals in and this has Lindsay’s departed never been In from. It Repub- is true that the first time that case, dealing the court with the effect of a lic right against a hostile asserted Houston deed without warranty, covenants of de to a full undivided interest was 259, clared Tex. 18 S.W. [83 729]: suit, Thomas out of the loss of title in litigation this arose. quitclaim But this fail- is not “This instrument a mere ure in the right, earlier cases to conveyance assert its a right, release or a which failure has had the full title, grantors interest which the benefit, can way operate in no deprive purports convey It ‘to had. the lands and certificates,’ to now assert its full and, land to con- purporting short, in the title lands. In fee-simple, rests vey purports it them to con- suit, on the vey absolute, instruments in and it has been indefeasible title. It neither proved nor claimed protect this suit an instrument as would consciously relinquished waived or purchaser. Levi, bona fide Richardson v. them. 364, Tex. [359],. 3 S.W. 444. 67 878; 503, this suit and that such contention is the' 144 Tex S.W.2d Houston Oil interpretation Village Co., Tex.Com.App., correct

. construction of Co. v. Mills said instruments under the law.” 241 S.W. 122. 7 Gauntt, 558, 562, Am.Jur., 10, 606; p. 12, Clark v. 138 Tex. 8 19 See. See. 270; Lindsay p. Freeman, 610; 18, p. Am.Jur., 161 S.W.2d v. 83 Sec. 617. 16 259, pages 343; 264-265, 727; Deeds, 340, 341, Tex. 342, at 18 S.W. Secs. 14 Duhig Pcavy-Moore Tex.Jur., Deeds, v. Lumber Secs. 123 and 124. acquire did the one-half title to Lowery sisters grantors “If the pur- terest in the-minerals it now which the deed asserts possess estate special nevertheless, containing it was executed ports the deed convey, deed, init warranty, reserved intention, but it retained or shown their clear they and their that deed. that it should fee-simple, It now insists permitted that title up in estate or and maintain privies, blood to set whether of the “full against Republic after-ac- law, by an diminution estopped claim Republic, we conveyed no contains one-half” it has quired though the deed title closely and with deed can see fits warranty. language how the shoe ap- fee-simple what full said there whereby grantors convey the force what was plies recital which here. estate in the constitutes “ they are imports an them * * * assertion quoted rule above What and, land; fee-simple the owners prohibits title contra- is the assertion of of their own- having asserted the -thus warranty. If such diction or breach of deny estopped ership, grantors are warranty is a fair and enforcement of the such fact.” after-acquired remedy effectual in case title, is, believe, equally fair and ef- we have been of seems The district appropriate fectual also here. contained opinion the deed that because special, but of general, not of a covenant recognize rule covenant “We way released warranty, in some this general warranty enlarge does not the recita- estoppel which grantor from the not determine title does have deed would ownership tions Levi, v. character of title. Richardson A not do. imposed. This otherwise will 444; Tex. S.W. White indeed, warranty, we special with deed Frank, 66, 70, Thé 91 Tex. 40 S.W. 962. all, warranty seen, no assumes, as has been decision here made estops mak- stated, reserved the deed Duhig would diminish a claim title which ing minerals. himself a one-half interest as would deed grantee title his affecting construed as The covenant is not general warranty. op impairing reserved. so gran estoppel denying to the erates Peavy- Duhig Except for facts the him the tor and those Co., 503, 144 135 Tex. S.W. Moore Lumber grantee and up against to set title the general, in 878, deed was with 2d Pea Duhig v. those who under it.” claim grantor special warranty, and the stead of Co., page vy-Moore 135 Tex. at Lumber the owning one-half of admittedly only 508, page 880. 144 S.W.2d at minerals, by grantor ad assertion attempted reserva through the title verse case, here, what im Duhig’s In is admittedly breached of one-half tion controlling, not whether portant is was execut warranty instrument when the actually the title to the grantor distinguished ed, cannot be this case whether, deed, conveyed, it as it seen, For, have where the Duhig’s. as we did, convey and undertook to serted that it of owner based on affirmation grant is Settlement & Southwestern Thomas v. opposed conveyance title as ship is a 413, Development S.W.2d 132 Tex. 123 title, es an effectual fef there is to a chance White, 361, 290; 137 Tex. 153 Greene v. title in dimi toppel at once raised assert 575, 136 A.L.R. S.W.2d 626.9 grant whether the covenant of the nution emphasis judge which the district The or, special, in general warranty is or fact, that intended warranty at no covenant of deed there is prime jointly that a consid- operate all. joint was the devel- eration to the oil, no Duhig’s opment for doubt caused is said in of the land paraphrase we what If unduly or minimize the page at him to overlook Tex. 144 S.W. 135 case paid $250,000.00 Republic ad- fact that In the instant case Houston 2d 880: 8 Chadwick, Cir., 743; App., Smith, 15 Roberts v. Tex.Civ. S.W.2d Cf. Havard v. F.2d 374. Republic operating on larger vanced much that chance, sums is it conceivable in, Outlays and the and as- large the faith that the recitation would have made the acquired a of, deed, it It obligations words it did? granting sumed the serious minerals. lawyers “full certainly one-half” interest inconceivable .that Having trade, induced bought in that in- faith ability of those this concerned by grantor’s assurances, deed, cannot “In grantee view tending say part of deprived now its by grantor prospective litigations over pending or obliga- titles, that interest without breach of title but cannot Houston share assumed must it, affirmations a chance express Houston”, words of the would grant. equally title losses inten- inept expressing have been so The misled the district was reason tion. think, was, holding into we as he did minerals, only portion fact, small it stands out As matter of one-tenth, here thought lost. If situation it could was this record that Houston in maintain, had fact and in as it was succeeded been in law that it has case, owning maintaining, Duhig’s with Houston exceptions with few ' was, only, than, time of the deed it there- less title it affirmed that had. minerals, fore, willing we think he would have affirm that it what .owned clearly selling. grantee, that the ef- secure in the more than he did seen was knowledge reserving fect of an interest of its one-half would come Houston’s if owned as much of one-half would first and that Houston grant one-half, lose, willing have been could ineffective as it, accept upon rely affirmation and Duhig’s effort in was. not? why case And indeed, special so $250,000 willing, that it took Houston obtained cash and general warranty. We instead of think requiring contract further does not lie Houston’s mouth aft- upon money by grantee advances er it has received the full benefit of Houston’s it owned title assurances that Republic, bargain say pot took “We convey, to the minerals and and was could luck, you my fails, I. When I conveying, “a full one-half” in- do stand divide loss. I Why per- terest therein. should it now pay you you. loss with But I back no prevail upon mitted to claim it- makes paid you your me. That is what reducing here the result of the in- you gave loss. I hold fast all that me.” than, granted terest to less of, bought stead one-half” it “the full light Whether looked at paid upon express language alone, assurances suit instruments what it getting. upon thrown them the un- facts, disputed such a claim can not be If grantee really had intend- estopped maintained. Houston is what Houston now ed claims up. tend, lawyers, represented who them intimately, support knew Texas judgment and who land law of it quite would have drawn different stand. instru- reversed and here rendered for ments, appellant. free of assurances of owner- ship quit and limited claim of chance WALLER, Judge (dissenting). Circuit If Houston made clear Re-

title. I public nothing think the lower chance Court for the conveying, was correct reasons stated the minerals it was him. I, dissent. pot luck with it in taking

Case Details

Case Name: American Republics Corporation v. Houston Oil Co.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 30, 1949

Citation: 173 F.2d 728

Docket Number: 12255

Court Abbreviation: 5th Cir.