This сontroversy involves the ownership of the oil, gas, and other minerals in and under the east % of the S. W. % and the N. W. % of the S. E. % of section 57, block 4, Houston & Texas Central Railway survey of lands in Eastland county. The plaintiffs in error, as plaintiffs in the trial court, sued thе defendants in error to recover the title and possession of such minerals and had a judgment in that court. The Court of Civil Appeals reversed this judgment and rendered judgment for the Harts upon the ground that the reservation of the minerals under which thе plaintiffs claimed was repugnant to the grant of the deed in which it was contained and therefore void.
The findings of fact by the trial court are set out in full in the opinion of the Court of Civil Appeals and will not be restated. It is sufficient here to -sаy the Houston & Texas Central Railway Company is common source of title, and the plaintiffs in error by mesne conveyances are the owners of all the right, title, and interest in the minerals reserved in the deed of January 30, 1877, by the Houston & Texas Central Railway Company to Jane R. Smith; the reddendum clause thereof reading:
“It is’ expressly agreed and stipulated that the vendor’s lien is retained until the herein-before described note, with interest, etc., there • on, in accordance with the tenor, effect, and reading, shall be fully paid, upon which this deed will become absolute, a strip 200 feet wide for right of way and other railroad purposes should a branch of its road be located on the premises, and all minerals in and on said land, together with the right of way for convenient access thereto, are reserved and excepted from this grant and conveyance.”
It is this reservation that the Court of Civil Appeals held to be repugnant to the grant of thе deed. The deed to Jane R. Smith was a grant of the land by general description and by metes and bounds “together with all and singular the rights, members, hereditaments and appurtenances to the same belonging or in anywise incident or appertаining,” with general covenant of warranty, followed by the exception in the red-dendum clause above quoted. The deed did not specifically grant any of the minerals.
It is elementary that the minerals in place may be severed from the remainder
In construing a deed, like any other written instrumеnt, the primary and all-important consideration is the intention of the parties as 'gathered from the instrument. Cravens v. White,
Bearing in mind these principles, which are universal in their application, there can be no question as to the intention of the grantor with respect to the minerals after a reading of the deed of January 30, 1877. That instrument grants the land in the usual way to' Jane R. Smith, but latеr in the reddendum clause declares:
“All minerals in and on said land, together with the right of way for convenient access thereto, are reserved and excepted from this grant and conveyance.”
Now, the meaning is ¡perfectly clеar that the grantor did not intend, nor the grantee understand, that the minerals in and on said land were a part of the grant and conveyance, and such effect will not be given to-the deed unless there is a clear repugnance in the resеrvation to the grant in the first place. It has been pointed out that the grant was by general description. It, of course, in the absence of any reservation or exception, would have conveyed the minerals, for these constituted a part of the land. The general description was sufficient to include the minerals. But the later exception of minerals evidences an intention not thus to include them, and the phraseology of the grant and exception is such there is no necessary conflict. It is true, perhaps, that an exception to be void for repugnancy does not have to be as broad as the grant, but it does have to be as specific as the grant; otherwise, there is no rеpugnancy. The illustration given -by the Court of Civil Appeals from Judge Gaines in Koenigheim v. Miles,
The case of Freudenberger Oil Co. v. Sim
We agree with the dissenting statement of Justicе Higgins that the manifest purpose and intention evidenced by the deed under consideration “was to dissever the minerals from the surface estate and except the same from the operation of the grant, so that title thereto wоuld remain with the grantor, together with the surface rights necessary to the complete enjoyment of the mineral resources of the land.” The majority of the Court of Civil Appeals erred in reversing the judgment of the trial court and rendering judgment fоr the appellants because of the supposed repugnancy of the reservation to the grant in the deed of January 30,1877.
Since the judgment of the Court of Civil Appeals in favor of defendants in error is to be reversed, it becomеs our duty to look into other questions presented by them to the Court of Civil Appeals for the purpose of ascertaining if such judgment can be sustained upon any other ground. Holland v. Nimitz,
At this point it is strenuously insisted by defendants in error that the judgment of the Cоurt of Civil Appeals should, in any event, be affirmed because a judgment which is right •on the record will not be' reversed by the Supreme Court even though the Court of Civil Appeals has given an erroneous reason for its rendition. This statement of the rule оf practice is, of course, accurate, and would be followed if the record justified its application. The argument for the contention is that it is not shown in the evidence that the lands in controversy (the minerals) were owned by the рlaintiffs in error. The plaintiffs in error deraigned title through a trustee’s deed to Frederic P. Oleott, conveying “all lands, town lots or blocks, real estate or interests in real estate of every kind and description” to which the said Houston & Texas Central Railway Company has title, claim, of equitable ownership,” except the land- and other property subject to the first mortgage on the Waco & Northwestern Division dated June 16, 1873.” Now, this first mortgage was not introduced in evidence. The lands embraced in this mortgage appear to have been sold by trustee to George E. Downs, and, of course, if the lands in controversy were included in the mortgage and the sale to Downs, plaintiffs showed no title and should in no event recover. The Court .of Civil Appeals discussed tljis question, but did not make any decision thereof as a basis for its judgment.
We have sought diligently to see if the record would authorize our holding that the land in controversy was not embraced in the first mortgage on thе Waco & Northwestern Division excepted from the conveyance under which plaintiffs in error claim, but our search has been in vain. As already stated, this mortgage was not introduced in evidence, and it'is by no means certain, even if infer-аble, that the land in controversy passed by the trustee’s deed to Frederic P. Oleott. There is no reason to suppose this testimony cannot be supplied upon another trial, and it would be highly inequitable for us to render judgment, or what is the same thing, in effect, to affirm the judgment of the Court of Civil Appeals, and thus deprive plaintiffs in error of the opportunity to meet this defect in their case. It is the rule, where a judgment has been reversed, to remand to the trial court rather than to rеnder, where the ends of justice will be better subserved thereby. Such remanding has often been ordered to supply additional testimony, to amend the pleadings, and even to show jurisdiction. Buzard v. Bank,
We therefore recommend-that the judgment of both courts be reversed, аnd the cause remanded to the trial court for a new trial consistent with this opinion. •
The judgment recommended in the report of the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
We approve the holding of the Commission of Appeals on the questions discussed in its opinion.