Smith v. Allison

value respondents’ damaged two trucks which were only fire. objection being to this evidence the witness and, had not fire, seen the trucks for months two before therefore, qualified. point. true We overrule this It is months, had witness not seen the trucks ex- for two but amination of the record convinces court did us that the trial permitting not commit error in testify concern- witness to ing the market value of the trucks and after the fire. before portion Since the error this case affects the recovery respondents trucks, awarded for loss of the use of their judgment Appeals Court of is reversed for Civil indicated, reason heretofore is here rendered in against respondents petitioner favor of costs All $7600.00. adjudged against respondents. are Opinion May 22, delivered 1957.

R. E. Smith Et Al v. H. P. Allison Et Al. No. A-5458. Decided December 1956. Rehearing April 24, overruled 1957. rehearing

Second oven May 29, tied (301 608.) Series Hemphill, Bryan, Rosser, Snyder, Parker & Sentell & all Bering, Suhr, Finnegan, III, H. Suhr & N. and E. all of W. Houston, petitioners, R. for E. and others. Smith

Snodgrass Smith, Neill, Logan & Blanks, Lewis & Lewis, Stephens, Glenn R. Angelo, all of and David San W. Worth, respondents, Ft. H. P. Allison and others. opinion

Mr. Justice Smith delivered the of the Court. P. against H. Allison and filed this suit E. others R. Smith trespass and others in try title undivided to recover oil, gas, interest in the and other northeast minerals under the 124, of Survey, 25, Section H. & T.C.R.R. Co. Block No. l/4th Scurry in County, Texas. parties agree All suit the statement of the nature of by the Court of Appeals of Civil is correct. In interest brevity, only we state necessary such facts as we deem to a questions presented decision deed, of The for our determination. 27, 1941, dated March and executed Bertha B. Clark Neely, conveyed by specific delivered to Nedra description an oil, gas, undivided interest in the and other in and minerals % under the southeast and the northwest Section l/4th l/4th 124, Block 25. Following specific description of the land under which being conveyed, in interest the minerals were right paragraph reserving contains a B. to Bertha Clark gas conveyed to execute all oil future and leases on the min- erals, following appears and paragrahp then in the next general description:

“The however intend this deed to and include hereby only same to made cover and include not the above land, any described but also and all other land and interest in survey land owned or claimed in said or sur- Grantor veys in ad- which the above described land is situated or in joining foregoing par- the above described land. Should description any prove ticular for reason incorrect or inade- conveyed quate speci- the land intended to as above cover be agrees fied instrument or instruments to execute such description.” may necessary particular to correct such others, claim under petitioners, R and who E. Smith The n Clark, position conveyances took subsequent from law, not, description as a matter if the did trial court that the northwest and southeast limit the l/4th ambiguous, Bertha B. and that then the 1/4th, Neely, and did convey Nedra Clark intended and under in her, interest minerals an undivided % 124, Section northwest and the the southeast l/4th l/4th any Neely convey to Nedra intend to and she did not 124. terest in the northeast Section l/4th others, alleged petitioners, further R E. Smith agreed paid Neely Mrs. Mrs. consideration Clark in the minerals per interest mineral acre for $10.00 % 124, Mrs. and that quarters and northwest southeast Neely Section purchase pay and did not Mrs. did not minerals the northeast Section l/4th conveyance, At the of this owner of time Mrs. Clark was the 145, northeast and Sections Section l/4th adjoining one-quarter well as sections the two Section specifically in the deed. described jury

A found Mrs. Clark did not intend to Neely Mrs. an undivided in the minerals % of Section rendered in petitioners, trial court for E. and others. The R Smith Appeals upheld judgment of the trial Court the court Civil ambiguous wherein it held that deed that the the and evi- finding supported jury dence the the of the it was not in- convey any tention of Mrs. Clark to interest in the northeast Neely, respondents, to Mrs. sustained but the contention of l/4th others, erroneously Allison the trial and court submitted only jury, the issue of intention to the in that issue inquire quired as the intention of Mrs. and did not Clark finding Neely, that, therefore, to the intention Mrs. and jury that Mrs. did intend to Clark % minerals 124 was insufficient Section l/4th judgment constitute a basis for the trial For that court. reason, judgment was reversed and case remanded to trial court for new trial. 281 petitioners parties in

Both are this court. and others Smith capable that the deed was than contend Clark more one inter- pretation, surrounding and that and facts cir- may They cumstances be looked to its construction. further judgment affirmed, contend that the of the trial court should be construing because in purpose the deed it is the as- ultimate certain grantor, and, further, the intention of the because the granting clause in the deed from B. Bertha to Nedra Neely limits, law, as a matter of interest in minerals % conveyed particularly deed, plus described any strips adjoining part thereof, of land and a but not em- particular braced within description. petitioners-respondents present Allison and others points twenty present preserve all of para- and their point conveyed mount unambiguously the l/4th mineral interest in the northeast of Section 124. l/4th have petitioners, concluded sustain the contention of others, Smith That and affirm the of the trial court. portion general description reading: “The however intend this deed to include and the hereby same is made only to cover and include not the above * ** land, described but also and all other land owned * * * * * * survey (124) the Grantor in said in which the (NW above described land l/4th) SE situated l/4th ” * * * adjoining the above described land. ambiguous for two reasons: (1) adopt To petitioners-respondents, contention others, though deed, Allison and they only even now claim y% an undivided of the minerals in the northeast of Sec- tion simple would Neely. the full fee title to Mrs. (2) though petitioners-respondents, Even Allison and others, they claiming any assert are not Sections 123 and fact remains that does not limit the minerals con- Section but veys granting clause, clause, the land. The the habendum warranty clause refer to minerals. ambiguous by A deed its terms cannot be rendered unam biguous by the mere assertion in the lawsuit claim is no being made to the that Mrs. land testified she did not Clark others, convey petitioners-respondents, intend to Allison and might contend that whether be construed to cover wholly the of their whole interest immaterial in view non- y¿ fee, except claim the minerals in !/4th ambiguity hold that portion in a found material deed, parol and explain evidence was admissible grantor, Clark, intention of the Mrs. when she executed convey deed. The facts show that Mrs. did not intend to any interest in the northeast Section l/4th petitioners-respondents, others, upon

The rely and Allison the case Allen, Supply San Antonio Machine & Co. v. Com. App., support parol S.W. contention that their evidence is vary unambiguous inadmissible to terms of case, deed. In that awas suit Allen to recover com missions, court, among things, simply parol other held that vary nunambiguous, independ inadmissible to provision ent payment sales, of commission on in absence controversy “territory” as to involved. case, In our question the deed under contains material provisions consistent conveyed. property that render uncertain as grants speci- deed of the minerals in two % fically sections, although granting clause, described clause, habendum warranty clause confine the minerals, yet, general description fails to limit the con- veyance to minerals in the northeast and Section 123 and 145. These clearly recitations inconsistency indicate an between general description descriptive identifying and the matter particular tracts described and mentioned in the deed. The Allisons rely upon and others the case of Laucheimer & Saunders, Son v. App. 484, 27 Texas Civ. 500. In that case the deed of trust and parcels deed described certain conveyed, and also contained a clause to the ef- fect that his real it was the intention of “Saunders” to all of Coryell County, estate in not, whether described or except his homestead. uphold The court in that case refused to special description contention that particu- mention and parcels lar tracts or of land could be construed as a restriction upon intention, limitation the other as indicated general description conveying all other lands not described. The court held repugnancy there was no between the two description, matters of descriptions and reconciled the two “upon theory grantor’s in accord with the evident inten- tion to particular mentioned, tracts and also all other lands.” In that case the “evident intention” of the unambiguous determined from the terms the deed. In present case are unable we to reconcile recitations aof con- veyance simple by general of fee title to land

226 particularly the land only minerals in with described. others, contend Allison and petitioners-respondents, meaningless to hold if we fail way, l/4th, or, put it another to conveys it the northeast ambiguous and meaningless if hold that it is we testify that she did proper permit Mrs. it was l/4th, and convey any the northeast interest intend to not l/g in consideration

that she received $1600.00 They take particularly described. tracts minerals in two was competent extraneous position that no the further con- intention to Mrs. show that Clark’s introduced to vey l/4th, and, un- nothing the deed is in the northeast therefore, convey Mrs. ambiguous, and, sufficient northeast Neely in the minerals l/4th % by them. now claimed out, pointed the record to the facts heretofore In addition Clark-Neely 27, 1941, date of the that on March shows l/4th, northwest deed, southeast owned the Mrs. Clark comprising 480 Section 1 /4th, 123, comprising acres and she owned of land Section acres land; comprising acres of land and Section plat adjoining, as shown below: land were the tracts of printed original area in red in This printed green original This area prepare The record further Mrs. shows that Clark did not deed, (she party Mrs. Clark was not a testified suit) Neely this that she had and did know never seen Mrs. where she and did resided at lived not know where she trial; (Mrs. Clark) time that she on 123 on lived Section deed, grazed date of the on all farmed and stock land; that no one ever asked her execute another instrument specific to add the 124 to the or of Section l/4th particular description 27, in the deed March 1941. possession Mrs. the time Clark remained in of the land from conveyed she Neely made the the north deed to Mrs. until she )of half (N% Key January 1944. Section 124 to Marvin on testimony competent The was show and was admissible Mrs. did not intend to the northeast 124, being of Section square, 160 acres a neither in the form of did she intend to each ad two sections of 640 acres joining Section The neces 124. deed under consideration must sarily determining question entirety considered in its in ignore ambiguous. of whether or it is not We cannot discard any part arriving of the at a conclusion question. petitioners-resp ondents,

The others, further Allison and contend that if ambiguous, even the deed was failed to by raise the ultimate fact dated issue 27, 1941, March Neely Mrs. acquire did intend terest in the minerals in In the northeast Section 1/4 connection, they the same was contend that the issue which sub- intent, properly question mitted did not in that submit the inquire Neely. failed to as to the intent of Mrs. this With agree. we cannot

This is not a suit for reformation of the deed. The rules of applicable capable law to the of more construction of deed interpretation applicable than one to re- the rule to suits necessary latter, form are different. instruments As to the it is that all enter into a con- instrument intended to executed, party tract they different from that which or that one by induced to execute the contract the fraud of other. upon Allisons, beginning by The cases relied Sun with Oil Bennett, 2d Co. 125 Texas 84 S.W. suits to were reform. case, alleged

In supple- the Bennett the Bennetts in their covered petition acres was mental if the tract of 2.59 mutual incorporated result of a lease, as the then it was Sun only issue mistake, effect etc. The court discusses the was: thereto. The issue jury, answer and the submitted * * * agreed mutually you intended “Do that it was find Schuyler that the lease which Liles Malinda and J. H. between Schuyler Schuyler and Horace was executed Malinda affect the 2.59 Company cover and should favor of Sun Oil question” acre tract jury answered “No.” finding not tantamount

The court held that finding result was the the inclusion of the 2.59-acre tract (77 Appeals aof mutual mistake. The Court of Civil 1086) jury’s the issue submitted held that answer to finding authorize reforma- a mistake and did not of mutual approving Appeals this in tion of lease. The of Commission holding said: merely parties lease did jury that to the

“The found both tract agree affect the it cover and not intend and in that should finding negative of controversy. the existence does not This parties that the lease part an intention on the of one of lease parties that intended include the tract. If one of the lessor, by there was adjoining land owned cover and affect containing the lease in the execution of no mutual mistake language of fraud or In the absence included such land. which be reformed conduct, instrument will not inequitable a written is, mutual; mistake is on account mistake unless the of laboring the same under parties, a mistake common both to both instrument.” misconception respect terms of the in stated, of a suit for reformation this is not As heretofore accident, mistake, or fraud. Smith mutual the deed based on ambiguous alleged the deed was a defense that and others as convey the intention Mrs. Clark it was not the of minerals in acres, in the other square of 160 or They assumed burden the northeast Section charge in the issue contained proof question, and the on this upon them to establish place the burden framed as to was so there is no It true that such contention. Neely, the absence Mrs. but the intention record weight and effectiveness proof does not minimize such issue submitted. given support testimony in 229 construing a deed is ascertain purpose in ultimate grantor, ascer- when this intention is the intention of the tained, into ef- the intention which carries construction governs lawful, fect, and controls. See when intention is such 604; Barkley, Bruce, Corporation 2d v. v. 142 F. Gibbs Arab 464; Byrd, Texas App., 242 Alexander v. Texas Com. S.W. Davis, 915; App., Bros. v. 88 114 2d T. Carter & Civ. W. S.W. dism., Shipp, App., Kennedy Texas 135 2d Civ. er. S.W. dism.; er. correct. present to the effect Allison and another contention others ambiguity acres turn number of additional cannot on the by un- survey, owned Mrs. Survey ambiguous by person in and that “All land owned Survey X, person X means all in the land owned such acres, acres, or acres.” whether Obviously, inserting purpose there was upon rely deed. and others Ben- Allison contention, nett case support principal their contend but language opinion that the in that the court stated: “It’s wherein (general description) apparent pre- purpose is reasonable leaving pieces land, strips vent small unleased or like the tract knowledge controversy, may here in exist without of one both reason incorrect surveying, fences, careless location of or other mistakes.” See Bennett, supra. Sun Oil Co. v. case, present

Under the purpose record as stated the in purpose Bennett and other cases is the reasonable inserting general for description the in the deed. For other holding general descriptions cases that similar have been con acreage strued to cover small excess tracts see: Oil Co. Sun Burns, 549, 442; 125 Texas 84 Cantley 2d S.W. v. Gulf Produc Company, tion 339, 912, Texas 2d 915. Masterson, Law, Honorable Wilmer D. Professor of South- University,

ern Methodist in the Fourth Annual Institute on Oil and Taxation, commenting Gas purpose Law and in on the a here, such clause as we have frequently said that the clause is forms, found in infrequently lease grants, but in mineral and purpose that its pick strips grantor up was to to which the has acquired title. limitation In Arnim, the case of the App., State v. Texas Civ. 173 S.W. w.o.m., er. ref. the court said: * * “* public principles however, are, certain There tends is conveyancing. One policy in involved strips land. discourage ownership of narrow separate an ownership and when subject strips are of course Such a except strip out grantor such retain or intention clear, intention will his expressed is made dis- not intention is courts, such respected by the but where conveyance, the language employed in the from cernible grantor with accordance presumption acted in is that re- not intend public and did policy of the State established no strip that would be ownership tain of land of a narrow * *”* very slight him. benefit to value or of ambiguous, and that that the deed Since we have held convey any in true was not to intent of the upon intent the issue and that of Section only reason- correctly jury, submitted inserting reason for able Ben- purpose quoting from the as stated above case, judgment of Civil

nett Court follows Appeals in so far as it reverses and remands case the trial judgment trial and the court should be reversed respects judgment court affirmed. In all other of the Court Appeals of Civil should be affirmed. Appeals is reversed Court Civil

part part, court affirmed. affirmed in and that of the trial

Opinion delivered December concurring

Mr. Justice McCall in the result. my I concur in the result reached Court herein. Like brethren I do not want to hold that “Mother Hubbard” conveyed clause in this instrument quarter of land section specifically However, described therein. I am see unable to ambiguity they found, closely have I the more firmly look the more I am convinced it is not Rather there. conjure than up ephemeral such ambiguity disappear- with ing qualities I by applying would reach the same result a rule of construction as follows: such provision a “Mother When Hubbard” is alone in used instrument,

an conveys grantor it all the land owned designated within the survey, county, city or other area. But provision when a such description specific follows the of a provision tracts, ordinarily purpose of such tract or is bordering strips bring conveyance small within the may not included because be tracts which tract or described acquired adverse faulty description may have been Hubbard” “Mother possession. these circumstances Under specific supplemental provision considered as should be primary sub- description tract particular re- provision should ject garded conveyance, not and such wholly sep- independent tract as unless particularly tract described arate distinct from clearly such instrument have indicated in the their intention. speaking ejusdem In maxim known as of construction Bank, generis, Judge Sibley Phillips Houston National v. Texas, Houston, Texas) 934, 936, (C.C.A., 108 F. 2d stated: general prevent words, loosely “It serves to used in connection specific terms, extending operating with from the in- really strument field not into intended.” case application While instant does not within the fall ejusdem of policy generis, principle the doctrine of the same general applied should be such terms of “Mother provision specific description Hubbard” when used with so operation such terms will not extend the instru- really ment to lands conveyed. intended to be Opinion delivered December

ON REHEARING Mr. Justice opinion delivered the of the Court. Smith original In opinion our that, we said purpose “the ultimate construing a deed tois ascertain grantor, the intention of the and when this intention ascertained, that construction which carries the effect, intention into when such intention is law- ful, governs and controls.” entirely This statement of law is correct applied when Barkley, the facts in Gibbs v. 242 S.W. App., Com. adopted, for there the Court was con- cerned with the gift. construction of a deed of In such case only the intention of the is material and that intention alone controls. Likewise Kelly Womack, the same true in 153 Texas 268 S.W. 2d 903. upon

But further consideration we have concluded that 232 passing a deed of in the construction

correct rule to be followed rather is buyer a a consideration from a seller to for valuable must parties This ascertained. that of to the intention the be agree- express a purports bilateral be true because parties as meeting of both a of the minds ment. It is to evidence conveyed paid Rio Bravo for. property and to the intended 391; 1080, 427, 85 Weed, 50 2d A.L.R. 121 Texas Oil. v. S.W. Co. 517; Bumpass 219, v. Smith, 2d Totton 131 Texas 113 S.W. v. Refining 1172; 266, Oil Bond, 2d Humble & Texas 114 S.W. 131 395; Oil Ellison, 2d Humble 134 132 Co. v. Texas S.W. 770; Refining Mullican, v. 144 Texas S.W. & Co. Co., Superior 150 Texas Co. Oil & Gas Oil Stanolind 2d 281. therefore, the While, trial of the court submission error, inquiring issue as intent of light circumstances, all neverthless of of the facts and thing we harmless. error was testimony. place All

In the first there is conflict no in the dispute. of the facts are without There circumstances tending no fact or circumstance to show that intention grantee respect in this deed different mineral was in grantor. finding that jury that Mrs. Clark did Neely not intend to Mrs. one-half undivided one-quarter interest minerals in the northeast Sec- finding tion that also 124 would be tantamount to a this was parties. intention the evidence the intention Under grantee grantor. must the same as that have been place, important probably In the second and con- more clusive, opinion we are of circum- under the facts and quite subjective stances of this case testi- aside from mony Clark, grantor, did Mrs. she not intend quarter, the mineral parties question tention of law for the reason becomes support finding there jury is no evidence that would quar- did intend this instrument the northeast ter or one-half the minerals thereunder be and con- sold veyed by Neely. Mrs. Clark to Mrs. Sullenger, formerly Clark, testified, effect, Mrs.

Mrs. the per consideration the sale was at rate of $1600.00 $5.00 testimony

acre. Her follows: “Q. Sullenger you much did receive for the un- Mrs. how of the minerals? divided one-half per acre.

“A. $10.00

“Q. 320 acres? In this per acre.

“A. $10.00 acre? “Q. per mineral About $10.00 right. is “A. That Is per acre.

“Q. one-half interest for the It would be $5.00 right? right. “A. That

“Q. a total of how much? And that makes right? $1600.00, “A.

“Q. you received, wasn’t it? was what $1600.00 “A. Yes.” paid par- quarter

She was and the two sections $1600.00 ticularly comprise this described acres. At 320 time southeast, transaction Mrs. west, owned not north- Clark 124, quarters and northeast of Section but also owned 145, Surveys. Sections 123 and all included in H. & T. C. Al- though petitioners claiming here are no interest these adjoining sections, by two nevertheless if the terms of the “Mother Hubbard” clause one-half the minerals in the norths quarter conveyed, east why of Section 124 is we can see no reason convey

the deed would not likewise at least one-half adjoining by minerals under the two sections. As said Appeals, “It Court Civil is evident Mrs. did not intend convey by adjoining all quarter land owned her the two sec- specifically tions described.” Bennett, In the v. Sun Oil Co. 125 Texas 84 2d S.W.

447, 452, upon the Court was called to construe an almost holding thereby conveyed identical clause and in particular 2.59 acre tract not included description, within the said:

“* * * (the general Its or clause) apparent Mother Hubbard purpose prevent leaving reasonable is to of small unleased 234 land,

pieces strips controversy, or like tract here in which may knowledge exist without of one both fences, by surveying, reason of incorrect location of careless or other mistake.” ap- has have found no this other case Court

plied any other rule or has clause construed such large specifically described bodies of land in addition to that surely consider- held so where the clause was also ably specifically Gulf more land than that described. See 452; Sun Spear, 84 Production S.W. Co. Texas Burns, 2d 442. Texas Oil Co. v. respondents give ultimate effect contended

To minerals under of one-half the result would additionally the con- particularly acres described the 320 veyance the min- one-half of clause of catch-all comport just does not with This result 1400 acres. under erals ordinary parties here practice, think the and we or custom such intention. had no could have general recited that: clause also

The foregoing description any particular for reason “Should inadequate the lands intended to to cover be prove incorrect or agrees grantor specified, to execute such conveyed as above may necessary to correct such instruments be strument or description.” particular why pro- naturally question arises the need for this The proper

vision, resort thereto ever become or and how could upon conveying necessary clause is to relied if the within land Mrs. Clark the section 124 and owned all of the need for the correction adjoining sections. How would come about if the ever did particular respect particularly with to the lands to contract intend strips properly small or that could and to such tracts described part of those tracts? one constitute No ever asked be said any respect. this deed in or correct to revise Mrs. Clark showing fact, parties, intention of is that Another question the deed in contemporaneously with Mrs. Clark gas grantee, Neely, leases the same and oil Mrs. executed quarters the southeast and the northwest which covered Sec- more. and no tion subject to made conveyance “this provides The deed or leases lease gas oil, other mineral subsisting or and

valid lease, any, hereto- if including any mineral also land, said on from contemporaneously made being or made fore leases in these meaning thus attributed grantee.” The quarter sec- only the two it embraces is that land” term “said deed. particularly described tions that the entire deed a consideration from conclude particu convey only parties was to intention might have any strips small tracts larly described part the de constitute contiguous said to or been been convey the did not serve the clause and that tracts scribed thereunder. the minerals quarter or as herein stated opinion is modified to the extent Our former rehearing is overruled. respects the motion in all other sitting. veil not Nor Associate Jutice

Opinion April delivered dissenting joined by Walker, Mr. rehearing. Calvert Justice Justice on was entered this court this case and

When opinions by Associate were Justices Smith McCall on in the re- filed December we noted our concurrence agree sult. reason for that was that we did not notation wit, opinion principal question discussed, either on the with proper by construction of the mineral deed executed Bertha B. Clark. agree majority opinion not

We did with the we do because language gives patent not believe the biguity of the deed rise to a am- is majority such as did found to exist. not agree concurring opinion with filed Justice McCall be- operative limiting cause the ultimate effect so effect of is, practical a purposes, “Mother Hubbard” for all to clause meaningless. conveying render it This a will be so deed because specifically containing land described and no Hubbard” “Mother will, expression contrary clause in the absence of a clear aof intention, operate strips bordering to small Jones, Strayhorn ________, described tract or tracts. v. Texas 157 623; Cantley Co., 300 2d Production S.W. v. Gulf 135 Texas 236

339, 915; App., 912, Arnim, 2d v. Texas Civ. 143 S.W. State 503, 508, 2d 173 writ ref. w.o.m. S.W. briefly, proper theory

Stated our construction of the Clark is deed this: Oil Burns and Oil Co. Sun Co. v. Sun Bennett, opinion, majority cited in that the nor- make clear purpose mal usual in an in- of a “Mother Hubbard” clause strument to certain the instrument is make that conveys bordering strips small of land the described tract language apply tracts. we undertake to When subject operates deed to the it we matter on which discover given accomplish meaning if its literal it will a result wholly odds purpose at with its normal and usual in that property specifically to the addition small described bordering strips operate it will to 123 and 145 Sections Ry. and the Survey, Section 124 the H. T.& C. Co. give may Block 25. situation not This rise to the classic type ambiguity Co., latent noted Harrison v. Manvel Oil 669, 912, 909, precisely 142 Texas 180 but S.W. it fits Rush, approved rule in First National Bank of Amarillo v. App., 521, 525-526, quoted Texas 210 Com. S.W. where the court Joseph Brewing Co., 347, from Kleuter v. Schlitz Wis. “* * * (N.S.) 32 L.R.A. as follows: N.W. words of contract, themselves, may plain, yet, applied a when to deals, plain, the situation with the literal sense leading suggest such parties unreasonableness as to probably applying did contract, not so intend. In so oral testimony generally necessary permissible is to the end scope may full situation dealt with be observed. * * *” Co., also Smith v. Texas N. O. R. See & 101 Texas “* * * 819, 820, it is elementary where said: It is parole vary is not rule that evidence admissible to the terms apply contract. But when come of written we descrip- conveyance, property in a an ambiguity tion of or a doubt is property as to whether disclosed embraced within the obtains, description, permissible a different rule and it is testimony property prove by oral what meant * * *” foregoing on the Based embrace. authorities we conclude ambiguity latent authorizing there Clark deed parol receipt of show true intention of the parties. suggested approach our between The difference prob- suggested by Justice McCall is

lem and this: whereas under approach a “Mother Justice McCall’s Hubbard” clause would convey operate strips to more than small never bordering the clearly have parties the “unless specifically described intention,” under their that such instrument dicated in the language apply the would approach the court our ascer- thus and would thereof subject matter or lease to the described, specifically property, than tain other what it if were clause conveyed by “Mother Hubbard” the would be given appeared then it If according literal terms. to its effect strips than small convey operate more to the clause would that bordering extrinsic specifically described the lands ascertaining inten- the purpose the admitted for would be convey held then parties. clause would be tion the The intended parties the established all lands the evidence convey. questions discussed of the other further consideration On majority opinions, concluded that we cannot in the we have now dissent therefrom. concur in the result reached only must but grantor inquired jury whether the issue submitted to convey miner- an interest intended to undivided one-half explanatory quarter An als under the northeast of the section. instruction submitted in connection with the issue advised jury person purpose that the “intent” a has word means the gathered as mind from the contents of the instrument con- light surrounding sidered facts and circumstances. negative Respondents objected ground a issue on the support answer petitioners would not inquire the issue should as parties. to the intention agree majority opinion rehearing with on purpose construing ultimate conveyance, than a other gift, give deed of is to ascertain and effect intention of parties. gathered this Since “intention” must from language light of the instrument considered in the of the cir- executed, cumstances under which it was the difference between grantor intention haps per- and intention of the consequence of little by when the deed is construed important, however, Court. The difference becomes when jury issue is to be determined as the trier of fact. present

In permitted testify case the respondent’s objection over that she intended to question deed in one-half minerals under 320 acres of land, and that she did not intend to quarter

minerals under the northeast of the section. This is not equitable proceeding, subjective intent of either of parties, distinguished expressed by from their intention as

238 language instrument, considered for should not the be they any purpose. jury, by But the issue to the which submitted grantor’s intention, required only were to determine the was nothing subjective less in- than invitation to consider her by testimony tent as disclosed the If the issue had mentioned. properly submitted, jury been been in much the would have position import explanatory better the full the to understand of agreement instruction. are then with conclusion the of rehearing majority the on that the submission the issue of error. reason, however, majority

The that the error was harmless the parties because evidence shows as a of matter law only intended to one-half of the minerals under specifically land described in the this conclusion deed. With agree. undisputed we do not If the showed that parties agreed price per had on a mineral acre $10.00 grantor $1600.00, received a total it would say they convey only difficult to one- intended deed to testimony half minerals under acres The of land. grantor quoted majority opinion susceptible is not just to this construction. The witness had stated that she tended to one-half of the minerals acres of under 320 land. then per She testified that she “received” acre for $10.00 acres, one-half of the minerals under or a the 320 total This $1600.00. conveyance establishes consideration for $1600.00, and that obtain that amount re- per simply ceived mineral acre the witness divided the total by consideration the number of mineral she intended to acres convey. completely negotiations The record is silent as to the agreements leading up to the deed, execution of the and it impossible to determine whether the ever discussed or agreed upon price by the acre. It contemporaneous is difficult to understand how the oil gas any light leases throw question. on deed, The which leases, not mentioned in either purport does not convey an the minerals under the same cov- leases, ered simply but subject recites that it is to all leases, including any valid contemporaneously made from the grantee. majority The assume, seem to without fact, either basis in law or in that whenever a mineral contemnoraneously deed is executed with one or more oil and gas leases, parties always intend the instruments cover the same land. Hub- give “Mother majority also reason respondents would contended the effect clause bard” under the minerals of one-half result des- particularly quarter-sections in addition two acres citing this as circumstances By the instrument. cribed in peti- deed in favor requires a construction of inclining some toward appears tioners, majority to be now concurring opinion of Justice expressed in the of the views McCall. application opinion above, that an pointed our As out it is grantor by language the of the the owned

of the deed to re- such an unreasonable at time of its execution leads to true parol admitted to show sult that evidence should be however, that parties. said, should not intention of the It be give plain provision a con- this court will not effect to an may appear lead to simply to tract or because in what result. free to contract unreasonable Parties should be may regard as an manner and for an unreasonable we unusual they Holloway’s desire. Heirs result if so In Unknown v. What- 608, ley, 843, pur- a deed 133 Texas 2d 123 A.L.R. S.W. porting convey particularly three tracts described therein providing any by “if there is other me land owned County, Texas, land, Liberty in stands or to which title my name, hereby conveyed, in it is the intention of this instru- being convey County,” by all ment land owned me in said previously was held to mineral reserved grantor adopt- in tracts three other of land. The result of ing present urged by respondents the construction case appears holding us no more than unreasonable of the cited case.

Entirely considerations, from opinion aside these our it is that the record in this case contains which affirmative- ly jury. raises an issue of fact for the Barker Coastal Build- ers, Inc., 153 Texas 2d S.W. was an action re- except form a deed as to so a small tract which the through claimed had included mutual been mistake. The Court Appeals (259 591) held Civil the mistake was proved judgment as matter of court law. This reversed the Appeals of the Court Civil and affirmed that of the trial following given holding court. The reasons two were for our jury: (1) the evidence raised an issue of fact for the all agreement testimony regarding to reserve the tract controversy in witness; (2) came interested from an “The testimony as to the reservation is contradicted each and record,

every affecting the transac- written instrument tion.” regarded signifi- language

If the instrument was case, cant in the provisions see Coastal Builders we are unable to how disregarded entirely pres- of the deed can Regardless opinion ent the effect case. of differences of as to case, fact other evidence remains language given which, contains its mean- if usual literal ing, would an interest minerals under the north- language quarter east instrument of the section. holding. majority itself thus contradicts the Unless Coastal (cid:127) distinguished overruled, Builders case is neither of which do, opinion provisions we able it is our are jury. deed should be held to raise issue of fact for the Appeals would affirm the Court Civil remanding the cause for a new trial. Opinion April 24, delivered rehearing May

Second Motion for overruled Katy Homuth Weidner Weidner Crowther Et Al. April No. A-5958. Decided 24, 1957. Rehearing May overruled 29, 1957. (301 621.) Series

Case Details

Case Name: Smith v. Allison

Court Name: Texas Supreme Court

Date Published: Dec 12, 1956

Citation: 301 S.W.2d 608

Docket Number: A-5458

Court Abbreviation: Tex.