*1 correct; Williams, supra, if the “constitutional” dis- Court’s unsound, is as I consider it tinction be; such decisions between satisfactory, is as I if there no other distinction that is be- up- compelling not; if there is reason to there is lieve Linger supra, not, Balfour, there our v. which I think hold logical decision, latter sus- to overrule the course seems to be holding Appeals tain the of Civil four votes Court valid, uphold judgment its here ground. were Opinion May 15, delivered 1957.
Rehearing overruled June 1957.
L. A. Pich v. A. H. Lankford Et Al. A-6165. Decided 1957. May 15, No.
Rehearing overruled June (302 645.) S.W. 2d Series *2 Baughman, Worth, Broughton Homer L. of Fort Williams Forbis, Forbis, petitioner. & T. and John for Cutcher, Taylor, L. Bird,
James of and Richard D. of Chil- dress, respondents. for opinion delivered the of the Court.
Mr. Justice Calvert presents questions case of ownership This of fee mineral interests in a tract of 160 acres of land described (1/4) as the 490, Southwest one-fourth of Section No. Block Ry. Survey, County. H. & N. W. Co. Childress W. Petitioner, agreed Pich, L. A. is the common title. source of September 28, petitioner conveyed On 1928 of 160 acres by containing land F. D. Turner a deed a “one reservation of Royalty, of half the full or Oil of all minerals l/8th l/16th produced land.” on said May conveyed On 1929 Turner the land to B. Lewis by Adams a deed which contained exceptions. reservations or February conveyed On Adams and wife land Higgs by containing a deed J. grantors S. reservation to the royalty, fourth of all of “one the same of all oil 1/32 gas produced from said land.” The one-fourth royalty reserved conveyed by in due Adams was course him to H. Canfield daughter, Dorothy to his Canfield Canfield Fuehr. Hagers, Frank administrator of On October S. Higgs, deceased, conveyed right all and title J. estate of S. Higgs in and the land to Howard a deed Collins which S. J. exceptions. or reservations contained no January 26, conveyed 1943 Collins Howard and wife On which, wife, Sharp, by Sharp and E.
land to following J. Emma deed W. following description land, contained language: EXCEPT an “SAVE AND undivided three-fourths gas in, oil, land, and other minerals and under said have been heretofore reserved.” September Sharp conveyed 1947 W. J. wife
On respondents, Lankford, aby A. H. and L. B. of Section which, land, following description *3 deed contained the following language: “SAVE AND EXCEPT an undivided oil, gas of the and other minerals in three-fourths and under Quarter thereof, and undivided the Southwest one-fourth survey, in and under of the minerals the remainder of said belong grantors minerals do not which to herein.” 15, 1955 quitclaimed On November Collins Howard and wife Pich, right, petitioner, of to all their title and interest “excepted three-fourths of the minerals and reserved” them Sharps, in deed on their and December petitioner Sharps quitclaimed right, to all of their title in- and the three-fourths of terest in the minerals in and under the 160 excepted” by and acres of land “reserved in them their to deed respondents. plaintiffs Respondents were in the trial court. Petitioner and and her husband Fuehr were petition Mrs. defendants. The on respondents trial statutory went to contained allegations which try trespass to title to the entire fee title to the 160 acres allegations land, specific of by peti- reservation a in the deed of was tioner reservation of “a one-half oil, gas interest in and all to of the (%) undivided and other in and under said lands” and that minerals the reservations the deed of was a reservation Adams of “a one-fourth gas oil, in and to all the undivided (%) and other min- lands,” reservations, and under said erals in they alleged, grantors illegal title on were conferred and void respondents’ clouds on title which constituted should be removed separate they alleged In a count and cancelled. excep- by the deed executed Howards tion in the to the Sharps on grantors any January 26, not 1943 did reserve to pure grantors deed and that “the intention of the in said was grantors convey all that the of the interest said lands to petitioners’ owned;” reservation a that the created cloud petition con- title which should be removed cancelled. The allegations specific tained no with reference to respondents by Sharps. contained in the deed executed to guilty petitioner pleaded Mrs. In their answer Fuehr all interest in “an and disclaimed undivided to the land as to (%) oil, three-fourths interest in and of the gas might produced in, and other minerals under and that be By way petitioner land.” from said cross-action and Mrs. sought by statutory trespass try then Fuehr title action possession title to and recover the undivided three-fourths respondents (%) interest in the minerals. To the cross-action general plea guilty of not and a denial. had other than No evidence the instruments heretofore described or introduced was tendered on the trial. At the conclusion of judge adjudged Dorothy the court trial trial before Can- (%) one-eighth the owner of field Fuehr one-fourth of the (1/8) non-participating royalty, petitioner, Pich, L. A. to be one-eighth (%) (1/8) non-parti- the owner of one-half cipating royalty, respondents, Lankford, A. H. and L.B. land, the owners to be fee title to the 160 acres of less adjudged petitioner. interests to Mrs. Fuehr and to *4 petitioner respondents appealed judge- and Both from the asserting petitioner Appeals ment, in the Court of Civil that failing adjudge the trial court erred in three-fourths to to him the title to
(%) of the minerals from which a one-fourth royalty (1,4) interest should have been carved and awarded to respondents asserting Fuehr, and Mrs. in that the trial court erred awarding recovery any interest to Mrs. Fuehr. The Court Appeals judgment. of 2d 749. and aifirmed the trial Civil court’s 295 S.W. Respondents application did not file an for writ of error awarding judgment (1,4) Mrs. Fuehr title to one-fourth one-eighth (1/8) non-participating royalty has there- and is not final in issue in fore become this court. real to be decided is
The as to the effect of the language quoted from the deeds executed the Howards to Sharps Sharps respondents. to
339 language legal was that the effect of the contends Petitioner grants except (%) deeds a three-fourths to from the place title minerals in and that interest in and to the undivided respondents they passed never to that never interest thereof; fact false reason became the owners may opera- given for the does not alter the have been tive effect thereof. He further contends that since grants necessarily re- was it excluded from the in the deeds grantors rights, peti- mained in the title and interests whose tioner holds.
Respondents contend that the deeds must construed most against strongly grantors pass largest as so possible grantees, estate apparent is and that when so construed it Sharps the Howards and the did not intend language in any their deeds in- to reserve unto themselves but, place, terest or estate in the protect minerals in in order to warranties, thmselves on their intended from grants in the deeds the one-half (I/2) and one-fourth in- (%) royalty terests in which had been theretofore reserved in the by petitioner deeds executed and Adams. Appeals agreed respondents’ Court of Civil with con-
tention, citing authority for its conclusion Klein v. Humble Refining Co., 450, Oil & 1077; 126 Texas 86 2d S.W. Methodist Mays, App., Home v. 444, refused, Civ. Texas 273 S.W. 2d writ n.r.e., Sims, 59, and Woods v. 154 Texas 273 2d 617. S.W. We agree petitioner disagree with respondents and the Appeals. Court of Civil
The decisions this Court have established that an inter place in est minerals in and an separate and distinct Hart, 392, estates land. Richardson v. 143 Texas 563; Benge Scharbauer, S.W. 2d v. 152 Texas 166; Sims, 2d S.W. Woods v. 2d S.W. 617. See Crews, also Palmer v. 203 Miss. 2d So. 4 A.L.R. 2d 483. It also well established that an interest or estate excepted grant land grant from is excluded from the and does grantee. pass King not Falls, v. First National Bank of Wichita *5 583, 260, 262; 192 1128; S.W. 2d 163 A.L.R. Reynolds Co., v. McMan Oil & App., Gas Texas Com. 11 S.W. 778, 781, rehearing 2d motion for overruled, 819; 14 S.W. 2d 958, Deeds, 14 Texas Jur. Sec. 175. patent ambiguity
There in the Howard Sharp 340 except grants royalty- only
deeds. The deeds do not
from the
such
interests or interests in the minerals
“have heretofore been
as
belong
herein;” they
grantors
reserved” or that “do not
to the
except an undivided
(%)
three-fourths
in the minerals
place
plain
unambiguous
language.
quoted
The
phrases
purport
excep
why
are but recitals which
to state
negatives
conclusively
tions are made. The
chain
title
the re
they
giving
citals. It shows
are false.
false reason for
The
grant
exception
operate
from a
does not
alter
down
or cut
excepted,
operate
pass
the interest or estate
nor does it
excepted
grantee.
Robertson,
or
estate to the
Roberts v.
690,
Rep. 710;
Chicago,
Ry. Co.,
53 Vt.
38 Am.
v.
etc.
44
Ambs
266,
321; Georgia
Minn.
Clay
46 N.W.
v.
Vitrified Brick &
Co.
Georgia
Banking Co.,
650,
77;
R. &
148 Ga.
v.
S.E.
Oldham
Fortner,
732,
824;
Sellars, (Ky.),
221 Miss.
2d
So.
Gibson v.
911,
2d
S.W.
Gibson v. involved a deed simple lands, containing fee the title certain the the deed following exception: expressly agreed “It is understood and parties rights the that the underlying coal and mineral said Party tract of land have been heretofore sold the First conveyed by expressly are not intended to be this deed and are excluded herefrom.” The record reflects that the coal had been underlying theretofore sold that but the other minerals said been, had not lands and the contention was made other excepted. minerals were not overruled, The contention was saying: court “The recitation of erroneous circumstances or the exception reason for an exception. does not limit the The court not concerned exception, rather, is with reasons for the exception. what is the required why are not We to determine excepted Lockie Gibson certain is, substances. Our concern what except.” substances did she quoting- After from certain authori- “We, ties the therefore, court continued: conclude re- exception citation in the us before the coal and mineral rights had theretofore only been sold was at most an erroneous recitation of fact and did not or limit restrict the effect of the exception.” The foregoing rule drawn from cases the writer of Corpus text (26 Juris Secundum Deeds, C.J.S. Sec. 139) is as follows: “Further, excepted when certain tracts specifically described, and it is further they recited that previous- have been ly conveyed, sold or good, although will be may rejected, recital is false since it although or prior conveyance did not effectuate a transfer of the property des- therein, through cribed or property even previously con- veyed grantor by reverts grantee reason of the prior conveyance ceasing purpose it for to use prescribed in the deed.” 619, Deeds, also 16 Am. Jur.
See Sec. 318. appears Texas case which to bear on Scholz, Umscheid v. 16 S.W. 1065. In that case language: following contained the “It the deed involved along thoroughfare existing formerly public that the understood edge conveyed point at this is not of the river intended to be having *7 corporation by presents, City the of the of Bexar these thoroughfare right open said it sees fit.” There the to when City right open had thor- was no evidence to oughfare, exception this court held was not affected but property previously the false recitation and used thoroughfare pass grantee. for such did not to the exceptions Sharp in the Howard cannot and deeds they royalty made deal construction be to interest when plainly Only an place. so deal with interest in minerals in outstanding may they reformation made to deal be with the and, analysis shows, pleadings interests as our of the allegations fraud, there were not accident or and mistake Co., prayer Refining no for reformation. Klein v. Humble Oil & controlling. supra, Mays, supra, Methodist and Home v. are not In each of those cases the deed excepted construed reserved grant from an estate in land identical with the grantor. conveyed by prior one theretofore reserved or Woods Sims, supra, point. does v. not bear on the The undivided three- (3/4) place fourths interest in the minerals in was excluded grants in Sharp from the the Howard and deeds and title there- pass respondents. to did not to
Since the title to the (3/4,) three-fourths interest in the min- place passed respondents, erals in never to we next to have Appeals decide whether the trial court and Court of Civil erred failing adjudge petitioner. to title thereto to be in acquired by quitclaim Petitioner deed from the Howards right, they language whatever title or interest then owned. The quoted heretofore from the Sharp deed from Howard to did not Howard; reserve excepted the interest only in the minerals to it grant. However, it pass from the since the interest did not grantee outstanding- legal and was not in another ef language excepting grant fect of the it from the was to leave grantor, it in the “exception” Howard. The words and “reserva strictly synonymous, tion” are Otts, Donnell v. Texas Civ. App., 864, 865, history; 230 714, S.W. writ 14-B Texas Jur. Deeds, 247, they interchangeably. King Sec. are often used Falls, v. First National Bank of Wichita 192 260, 262; 1128; Reynolds 2d 163 A.L.R. S.W. v. McMan Oil & Co., App., 778; Gas Texas Com. 2d S.W. Klein v. Humble Refining Co., App., Oil & Texas Civ. S.W. 2d af- cited 2d In the ease last firmed 126 Texas S.W. primary a reservation it is said: “The distinction between always exception must in favor of is that reservation be whereas, grantor, an is a mere of the for benefit grant, grantor from the exclusion favor of excepted may extent that such interest as is then be vested in ours). grantor outstanding (Emphasis and not in another.” Petitioner, Pich, adjudged L. A. an the owner be in, (%) undivided three-fourths the minerals Respondents adjudged acres and under the 160 of land. of the C%) be owners surface an undivided one-fourth in, minerals on and under the 160 land. acres of Dorothy adjudged Mrs. Fuehr is Canfield the owner of one-eighth (1/4) (1/8) non-partici- undivided one-fourth pating royalty oil, gas in, and other minerals on and under *8 may produced which Ordinarily and royalty be from said land. the adjudged interest pro- to Mrs. Fuehr would carved be portionately ownerships the appeal petitioner from two mineral but has in entirely asserted his brief that it should be carved adjudged the petitioner from mineral to and it will be adjudged. so judgments the trial of court Appeals and Court of Civil are reversed and cause is the remanded to trial the court for entry judgment
the of opinion. accordance with this
Opinion May 15, delivered Garwood, dissenting.
Mr. Justice portion In judgment that of the opinion of the of Court Appeals case, Civil the Klein 913-917, 2d S.W. which expressly approved was affirmed and by Court, this 86 S.W. 2d the former purported except Court held a rights” tion of all of mineral in a deed from one “1/8 Klein be, truly to one Baker to an exception, merely a reference “one-eighth back to a reservation of (1/8) of all mineral rights” by prior grantor (Stein), made “exception” the (according made Court) only to the purpose for the of limiting granting by Klein, clause used which otherwise full premises, covered the title to the avoiding thus Klein becoming warranty liable on a of the full title. The Court n reasoned, approval, “exception” with' our if the were con- any strued to hold out interest other than that already reserved grant grantor (Stein), prior Baker Klein’s to would got. purport convey actually Baker to more than Baker So to proceeded, approval, pur- to the ported “exception” with our construe Klein’s Court referring the earlier reservation. to case, according holding, grantor To the instant our to Howard, corresponds Klein, purported who to have will to con- have, wit, vey warranty that which he did not a free Any minerals. pur- and clear “mineral interest” 1/4 1/4 portedly conveyed subject royalty, was reserved so was subject A not free and mineral an clear. estate outstand- ing royalty worth the owner than it less to would grantor, Howard, if not so burdened. So will have warranty, “exception” his if we breached hold that was something royalty previously other re- than the served. support holding,
In the Klein of its the Court in case reasoned Klein, grantor, very further the use word distinguished “reserved,” “excepted,” as from tended to show might “exception” purpose well be for mind, have had in it Court held him to this connection very quoted apparent- used the now words in the instant case as ly conducing contrary case, incidentally, Klein view. In the grantor, Klein, deed, at the time he executed the owned outstanding interests in the land interest reserved 1/8 grantor (Stein) his even as Howard did in the instant case conveyance Sharp. at the time his *9 The Klein Court in the case also made reference to all the language “exception” language of the in the Klein deed and the previous in the reservation. Stein
It Supreme is also of interest to note that the Court, in dealing case, with the other in Klein is, the that the controversy between Baker as mineral lessor and as Humble assignee lease, that, held circumstances, under the the actually Stein reservation above royalty mentioned was a de- spite language “one-eighth its (1/8) rights of all mineral in and under” the land. it, charge
As I see we cannot off the Klein by saying case case, “exception” that in the instant the was clearly a one of in “mineral interest” the technical sense of that term and % that, such an interest a different kind of estate from the possibly not outstanding, “exception” could royalty the estate theory the royalty. outstanding of the taken to refer to be deed, as other as well holding Klein that the whole Klein is the “ex- what might determine things, in order to be looked to may extended theory be ception” I think that same meant. And words, the as to whether enquiry the instant case to an in oil, three-fourts of an undivided AND EXCEPT “SAVE land, have in, gas and under said and other minerals construed, under reserved,” necessarily to be been heretofore in particular circumstances, a the sense as mineral royalty a that interest. excludes legitimate
Obviously royalty is, perfectly and a in a normal interest, sense, that, in a mineral and place. may of a lease in advance minerals It be created subject as real estate before even of ad taxes be valorem proceeds fraction in any of it from it. The owner receives is, expressed may be, as that which it is particular and often considered" although may minerals, the latter fraction of Indeed, case, place.” still “in of reserved in the instant one royalties expressed “royalty” and in terms both in terms of of the same “of fraction all minerals.” recognized important
The fact that there a dif- is well that, estate, ference between character of the two grantor instrument, validly convey may same a fraction one of the mineral reserve fraction estate and or a different not, course, royalty, language, require does such as always “exception” clause, necessarily in the Howard shall something mean royalty. other than a the cases cited None of opinion, them, pointed the main as I read so hold. As above out, actually that, we held in under circum- the Klein case case, words, stances a such hold mean as we now beyond possibility “mineral interest” different construc- tion, actually meant interest. case,
Under the circumstances of seems this it to me may properly we also consider recital Howard deed will, “which I’m have been heretofore reserved.” The Court sur, false, concede that the recital is not unless assume that we preceding words, gas oil, “three-fourths of and other in, under,” necessarily minerals on and exclude reserved *10 royalty interest, considering deed whole. Roberts v. Robertson, decisions cited in Vt. the other connec- recitals, tion of false are relevant on that matter indulge. pre- assumption, I do not think should If the we ceding language subject construction, at as I think it light is in case, reference, of the Klein re- “heretofore served,” properly can be considered. whole, controlling appears
On the the Klein case to me to be require and to a different result than we have reached. Opinion May delivered 1957.
Rehearing overruled June 1957.
Raymond Mitchell Et Al v. Leon Mitchell Et Al.
No. A-6249. Decided June (303 352.) S.W. 2d Series