Krum v. Alford
653 S.W.2d 464
Tex. App.
1982
Check Treatment

*1 KRUM, al., Appellants, Minnie et ALFORD, al., Appellees.

James et

No. 2165cv. Appeals

Court of

Corpus Christi.

Dec. 1982.

Rehearing Denied Jan. opinion. *2 right ingress of together

.. . purpose for the of at all times egress and lands exploring and said mining, drilling minerals, re- oil, other and gas for and Farris, Worth, appel- F. Fort for David therefrom. the same moving lants. being lands above described And said gas originally and now under an oil Robinson, Miller,

Thomas K. Miller & Cranfill-Reynolds in favor of executed Robinson, Gonzales, appellees. them, it is understood by now held and NYE, C.J., Before and this sale is made agreed and BISSETT and YOUNG, JJ. includes but covers and ½6 to said rental or and royalty

of all the oil terms of paid under the royalty due OPINION said lease. BISSETT, Justice. none and understood that agreed It is case, In this we are called to con paid be money rentals which strue a mineral deed in 1929 executed which a well extend the term within wife, Frank Roncaba and Josefa Roncaba the terms of said begun under may be of Mang. appellees favor Walter A. The the said Walter A. lease is to be herein, title whose is derived from the Ron- in the event the said Mang, and cabas, others, appellants sued the as any lease for reason be- above described successors in title to forfeited, to determine then and comes cancelled or ownership partition and seek a of the min event, and all the lease interests eral oil, estate. trial court determined that land, future rentals on said in question conveyed an undivid privileges shall be ed mineral Mang. Gonzales, ½6 interest to Based on Mang A. jointly by Walter determination, this the court a par wife, ordered Roncaba and Jose- Texas and Frank kind, tition in ownership to reflect inter- owning fa Roncaba each one-half minerals belonging appellees, as 15/i6 oil, minerals in est in all and other Roncabas, claimants under the and the re land, with one- said others, maining ½6 in all future rents. half interest claimants Mang. terial

veyed Court is the “THE COUNTY terms of the deed are as follows: STATE OF Roncaba-Mang OF TEXAS GONZALES quantity sole question of the interest con § § § KNOW THESE deed. The ma before this ALL MEN PRESENTS: BY rell intention of the ascertained deed, It is a well settled 1979). it is the The intention of Graham, from a consideration duty parties [*] rule that in * * of a court to » to that deed. Ter parties construing of all the (Tex.Sup. seek the is to be Josefa appears THAT Frank Roncaba and wife Gonzales, provisions those County harmonizing, possible, Roncaba of the if State McMahon v. presents has and those do to be in conflict. appear sell, grant, bargain, convey, Christmann, set over and assign Mang (1957). and deliver unto Walter A. the one- following to-wit: one-half of that should It is also well established oil, eighth interest in and to all of the in ascertaining be doubt there and other minerals in and under and that their intention is tention of following from the de- produced entirety, in the deed in its expressed County, lands situated in Gonzales scribed doubt, from its considering the deed after Texas, to-wit: corners, against resolved should be four is, language whose

grantors, trial, must be construed most at the time of favorably expired dened had grantee, as conveying largest to him the need concern itself with permissible estate within the language of mineral interests owned proper division of the deed. Company, Garrett v. Dils grantee upon and the ter- the said oil and lease. mination of *3 though Even different of a parts giv- as a whole and Construing the deed may appear contradictory and to we conclude ing every provision, effect other, court, inconsistent with each a intended to to convey that the Roncabas construing the words in give a deed so as to Mang, to the termination of the then prior thereof, effect all parts to will not strike lease, an undivided existing gas oil and ½6 any part down of the unless there is in and perpetual th mineral an part irreconcilable conflict where one land, subject, existing to the then involved effectively destroys the instrument another lease, grantee and that gas oil and Scharbauer, part Benge thereof. v. 152 ½6 of all of the would be therein 447, Tex. 259 S.W.2d 166 or to become due and due royalty on oil mind, With these rules in we examine the was obtained under production in the event The first clause Koncaba-Mang deed. conclude that after said lease. We further in the plainly conveys ½6mineral interest lease, par- that the the termination of said tract therein. This is by described followed con- that the mineral interest ties intended language recognizes the existence of clause would Mang granting in the veyed valid oil and lease in force on to an undivided ½ be increased there- property making the sale oil, gas of the and other minerals and to all paragraph grants to. This same a ½6inter- on, said land. in and under pro- oil and royalties est in all due on by supported is interpretation Such an duced under the described lease. The suc- given which have effect prior cases de- ceeding paragraph rights reserves all enlarge or grantor of the plain intent under the current lease to the lay rentals subsequent granting by clause restrict that, upon termina- grantors provides Associated Oil in the deed. See oil and tion of the then (Tex.Comm’n Hart, 277 1043 Co. v. S.W. by the mineral estate would be ½ Texas and Pa- adopted); App.1925, judgmt. This is grantee. ½ 383, Martin, Tex. 71 v. 123 cific Railroad Co. of the words used. meaning the clear Simmons, 867; v. Drilling Delta Co. S.W.2d para third appellees imply that It is also consistent supra, at 145-46. con ambiguous and would have us graph is that dif- recognition Supreme our Court’s parties’ of the sider later deeds as evidence conveyed bemay in minerals ferent estates reject argument intent. We must v. Woods the same instruments. See The lan ambiguity. that there is no hold 617, 621 Sims, 59, Tex. 154 has been inter guage used is common and Hart, supra. (1954); Richardson we do here Texas courts preted as portion that Accordingly, we reverse Hart, Richardson v. many years. See which declares judgment the trial court’s (1945); Delta S.W.2d intended Roncaba-Mang deed was that Simmons, 161 Tex. Drilling v.Co. inter- only perpetual ¾6 Wingard, (1960); Cannon S.W.2d judgment that and render est to (Tex.Civ.App. — Dallas grantors’ fully conveyed same ½ n.r.e.). writ ref’d in and in the minerals reversionary interest is whether question to be answered tract, with all the the said conflict is in direct therewith. associated rights usual to, “grant- the formal with, repugnant judg- of the portion also reverse We that it is not. Since clause. We hold ing” respective percent- which affixes ment oil and record reflects that the ownership present shares of age bur- the Roncaba deed was under which mind, claimants, portion rules I am of the of the these With that a conflict exists between opinion partition property which orders based Koncaba-Mang third clauses of the first and court’s owner- on the trial determination of of a argue that the use Appellants remand of the case ship. portion We clause “one double fraction court to the trial consideration further one-eighth ambigu- is interest” half of opinion. of this light is in a deed of a double fraction ous. Use We have not been to construe asked calculate reader ambiguous; not subsequent through which the deeds very Richardson simply. the interest titles, trace their no express and we 563, 564 Hart, 143 Tex. However, about them. opinion well Thus, it the first (Tex.1945). is clear be that a construction of those deeds a ½6 granted of the deed before us clause trial court is necessary in order for so majority in the minerals. The properly court to partition order a majority’s con- agree holds and I with the *4 proper appellees, fractional shares to the the first struction of clause. the and to the defendants who the But, third clause deals with the which by publication possibly were cited to Cranfill-Reynolds after the situation Walter A. if and to his heirs living, understand. simple is not to terminates devisees, be, at law or case if as the interest joint It provide does deceased. Mang. majori- Although Roncabas and of this adopt to a construction ty attempts judg- Those portions the trial court’s grant- which is harmonious with clause ment not mentioned above are affirmed. clause, possible. I do not believe this is ing Therefore, judgment of the trial court of the confusing third clause is because part, is affirmed in and rendered reversed equate to “lease interests way it seems part, part. in and reversed remanded in interest, mineral all future rentals” with a to attempt an appear but it does YOUNG, Justice, dissenting. in the minerals. convey a one-half interest respectfully I dissent and I would affirm resort, do as a last Although I would so respects. the trial court’s in all 632, Hutson, 306 Tex. McBride v. reject (Tex.1957), I would S.W.2d with the agree I rules set forth in the clauses, I there these because believe one of opinion are majority that when courts between an irreconcilable conflict is meaning called to ascertain the of a two. deed, every part given of the deed must be fa- is a construction there rule of Since possible though effect if it is even different clause, I have voring granting parts may appear contradictory to or be above, conflict in I would resolve the noted But, attempts inconsistent. to harmonize that and hold granting clause favor of the whole should not a construction produce mineral conveyed perpetual Vie the deed of intent. destroys key expression not My is based Mang. to decision Masterson, Texas Pacific Coal Co. v. & Oil construction, also but this rule only on (Tex. S.W.2d is that the first clause my conclusion be 1960). repugnance When there is a If ambiguous. the third clause clear and clauses in a conveyance, tween greater intended to the grantors Lott, 370 prevails. clause Lott v. S.W.2d I say so. amount, they expressly failed to Ellis, (Tex.1963); Waters the trial court. affirm would 342,312 231,234 (Tex.1958). It is not the intention which the FOR ON MOTION OPINION but express, have had but failed REHEARING express intention which instrument does BISSETT, Justice. we should give to which effect. Canter filed (Tex.Civ.App. Alford, al., have et Lindsey, appellees, James case, wherein in this rehearing n.r.e.). —El writ a motion Paso ref’d they contend that this Court erred in “re- must be every construed reference to fusing give controlling effect to the other therein paragraph contained. The granting clause” in Koncaba-Mang court further that the granting held clause deed. They argue presents that in the deed under consideration must an “irreconcilable conflict” between the construed with reference to and in connec- granting clause and the third paragraph, tion with the habendum clause in order to and that this in Court erred giving effect arrive at grantor. the intention of the the third paragraph because the deed While we is are not here concerned with the ambiguous. They clause, further say that contained habendum case; is, Court erred in holding an additional same rule applies passed the minerals the granting third clause and clause grantee under paragraph the third of the should be considered in determin- deed since this paragraph”did not ing contain the intention Roncabas. any words of conveyance, “purported Hart, supra, In Richardson grant- deal only with an future lease ing clause in stated that an undi- payments and not interest in the ½6 n vided interest in the land was minerals in place.” conveyed grantee, further stated (in the paragraph) convey- The deed is ambiguous. not There is ance an was made terms of no repugnance between the granting clause oil but cover- and the third of nn ¾6 ed royal- and included a pertinent The third paragraph, part, *5 ty under terms of the lease. provides: deed, Court, in Supreme construing “... and in the event that the above held: described lease for reason becomes think, clear, “It is we the instrument forfeited, cancelled or then and in that conveyed two separate distinct es- event, the lease interests and all future perma- tates in the land. first was a land, oil, rentals on said and min- nent interest in minerals in place eral privileges shall be owned jointly by during which was to subsist and beyond Gonzales, Walter A. Mang of Texas and existing the life of the lease. The other wife, Frank Roncaba and Josefa Roncaba to be due payable was the royalty oil, each a owning one-half interest in all under the lease.” and other minerals in and said in distinct estates in the involved being designated clause. Gibbs v. the other (Comm’n ardson v. land, together all single future It is grantor App.1922,opinion Hart, being instrument, established rents.” may convey in the Barkley, designated (Emphasis one-half law in two adopted); Rich separate in another interest in this State clause and executed, land, supplied). S.W. grantee, one in the minerals in and date that That lease they made a covenant “... At estate above mentioned.... the time the [*] case. In the passed lease to the land was had terminated [*] All Cranfill-Reynolds, Roncaba-Mang [*] paragraph was the Roncabas owned under an grantee [*] in signed prior the land on the regard ” of the deed [*] to the trial existing the second were the deed was thereto lessee. [*] oil possi lease and a Barkley, supra, royalties In it was reserved Gibbs v. of reverter after determinable fee grantor bility held that the of is not intention Cranfill-Reynolds. possibili an isolated Such determined from clause or thereof, reverter, any part was deed, ty in the but is to be deter of or paragraph Leonard, v. assignable. from a S.W. mined fair construction of the entire Caruthers 1923); Watts (Comm’n App., Each in the paragraph clause or deed Houston, (Tex. City of ref’d). writ

Civ.App. — Galveston GAS GATHERING TENNGASCO COMPANY, Appellant, clear, think, It is we that the deed entirety, when considered in its question, an intention to con

showed FISCHER, Appellee. F. Herman present undivided ½6 grantee vey No. 1934cv. in the minerals, subject, however the terms oil and then Appeals of of lease, and an possi undivided interest in the Corpus Christi. bility of reverter convey sufficient to Jan. 1983. grantee an min undivided interest in the ½ erals. The possibility Denied 1983. Rehearing March reverter was grantee vested in the Roncabas; execution of

enjoyment postponed interest was

until the termination of the determinable

fee owned the lessee Cranfill-Reynolds,

in the oil and existence when lease in signed.

the deed was deed,

Under provisions

formal words of were not re conveyance in order to the interest

quired In grantee.

possibility reverter to grant

the third “made a thereto regard

ors covenant the stated passed grantee” of reverter. See possibility Hart, page Tex. at supra,

Richardson *6 185 S.W.2d at 565. The page purport the deed did not “only

deal with an interest in future in their

payments,” by appellees asserted rehearing.

motion for again have record and

We reviewed the

are convinced we were correct case. which we made in this

decision have for rehearing

The motion is overruled. we, through original

In our judgment,

inadvertence, appeal costs of this taxed all filed has been appellant. A motion this appellants, they ask wherein all modify by taxing

Court real appellees. costs to

such in the trial court

issue between the construction in this was the Roncabas from pre- have since appeal, granted. motion is

vailed are taxed appeal costs

All

appellees.