*1 Appellant points finding's.” up See also set ten in his trial court’s sustain Tex.Sup., Ortiz, 237 S.W.2d brief. His to the extent that v. contentions Woodward Tex.Dig.Vol. duress and his under was shown overruled- 286 and cases collated estoppel is Error, 1010(1). For was shown Appeal and not points trial overruled. 'The of the brief judgment stated other his reasons nothing findings plaintiff attacking take of fact and court court’s effect Casualty In against conclusions of Manufacturers law as to transfer Deere, surety Bridges car for Ed title Hubacek to Company, surance opin- to the sustained extent out in the must be sustained. set ion; points otherwise ten all of the set briefly come We now discuss out in brief are overruled. findings con the trial of fact and court’s Accordingly, trial judgment of the law title the car clusions of to the Casualty court favor of Manufacturers We do court suit. not believe trial Company things Insurance affirmed. all jurisdiction particular question. had of this the trial in all all, court First of was dis evidence without respects is reversed and rendered. pute posses the car in that Hubacek had his possession and that he sion surrendered the part; Affirmed in rendered reversed and Roy Bridges gave the car to him part. purported what to be a bill of to the sale LESTER, part J.,C. the con- took undisputed Under the in this car. record disposition sideration and case. cause, Peters case was settled when possessory right title and Ford car
passed ques out of the case Peters and the possession solely of title be tion Bridges.
tween Hubacek and Since Bridges party here,
is not a it is our view that the
equities in the demand trial that the findings fact and court’s conclusions PARKS et TEXAS CO. ux. respects following aside law be set No. 15317. namely: (1) that naught, held for in all of title and Hubacek transferred Appeals Court of Civil of Texas. Roy Bridges; (2) car
terest to the Fort Worth. au did own Hubacek Feb. 1952. Roy at the time was delivered to tomobile Rehearing Feb. Denied (3) Bridges; the bill sale legal Bridges Hubacek
equitable title and beneficial law
Bridges; and that as matter (4) at the the automobile did own
Hubacek alleged conversion.
time judgment entered the trial- may, by implication insofar thereon, attempt placed any construction adjudicate the title to the automobile pre rendered without
hereby reversed and right prosecute judice Hubacek’s against may suit as he choose
claim appeal are taxed of this Bridges. costs authority
against the Procedure, of Civil Texas Rules
Rule in Lone Star Gas cited authorities Childress, Tex.Civ.App., 187 S.W.2d Co. v.
ISO ,of At the time the execution (cid:127) February 4, D. L. wife, W.,
Parks and Una were the owners jf undivided one-half interest *3 property therein There has been described. Sands, N. Rowe and William S. Johnston no failure of title the inter- leasehold appellant. Wo'rth, for of Fort both in est interest. undivided one-half Daly, of Sayers, & Scurlo'ck Rawlings, appellant presents appeal The on these Worth, appellees. Forth (a) proportionate points: re- Under lease, appellant duction was clause of-the RENFRO, Justice. proportion entitled to reduce the rental to appellees, L. D. brought by was Suit simple interest in the entire lessors, wife, and to as owners and Parks land; phrase (b) estate in “said assignment there lease and terminate physical premises con- land” refers to a cloud remove same and 208, the whole stituting of Sec. the E/2 terminat From a their title. land; appellani (c) was entitled appel lease, of failure of because ing the rental stated proportionately the amount of lant, Company, Texas The notwithstanding there rental clause appeal resulted. lease, this provided had been undivided failure February undisputed. On The facts interest granted one-half and un- wife 'an 1950, and executed 4, D. Parks L. der the terms lease. L, Simmons cover- W. by appellant may points The raised three interest thei'r undivided one-hálf ing question, namely, be summarized in one 208, H. D the Block of Sec. John E/2 whether, presented by the the situation County, Texas. in Yoakum Survey Gibson facts, undisputed entitled un- 1950, assigned 10, Simmons February On reduction clause to der the Company. The Texas the lease to proportionately reduce the amount of rental years period of ten The was for a rental clause. stated 4, 1950, long' February determining whether o'r other minerals oil and thereafter as proportionately reduce provided for the was produced. The were rental, ascertain, we must amount of per year rental. payment of $160 possible, from the lease instrument 18, 1951, appellant tendered January On parties. The intent true intention of Fo'rt Worth National Bank to the First can parties, if it be ascertained deposited to cred- the sum to be of $80 instrument, prevail. will Sun from' the it of L. D. Parks et úx. cover the an- Burns, 549, 125 Tex. 84 Oil Co. v. S.W.2d privilege deferring nual rental for 442. operations drilling for a commencement February 4, period of twelve months from Appellant King cites v. First National accept L. Parks refused 1951. D. to- Falls, 583, Bank of 144 Wichita 192 -$80,contending proper amount of an- A.L.R. as au- Opera- nual was the sum $160. thority for its contentions. In that case the drilling tions for on the of Sec. E/2 warranty clause of a deed con- Survey, were not veyed an undivided one-half cer- February commenced on or before property tain which was then described as Appellant did not a whole. Certain pay or tender to L. D. interest was re- “ * * * wife, Supreme said, Parks and or to the served. Court First National Worth, looking forward from the granting Bank of Fort the sum of clause $160 constitute or annual rental on backward from reservation lease. The seems evident that terms ‘following contention of Texas Com- it land’, pany receiving been all times since described ‘hereinabove described land’, land’, ‘premises’, ‘said refer Simmons “$80 actually the correct amount.” one-half interest conveyed, * * * intervening a forfeiture, rights by pay- relate to the and retain his periodical the ‘1st paragraphs of the deed wherein privilege deferring particularly- operations. Tex.Jur., pp. Tract’ and the ‘2nd Tract’ are 247-8, in units 160 acres described as -a whole Sec. acres, respectively.” any particular specify lease does not per contrary,
Different from rate -acre. On provides Bank, lump payment the lease First National sum conveys parties the whole leasehold before us intended the rental $160. had sum, undivided grantors in and terest of the lease could, provided. Sec. have so E/2 *4 only Survey. agree upon any The D, they Block amount of rental de- opinion, inescapable In question the court sired. that before it is by us, interest reserved amount terms of before it was- warranty parties, they deed. The the intention of the grantor in a and In question agreed, was not involved. an rental that lessors would receive annual delay conveyed. amount annual rental of case the their instant $160 an oil nothing and lease There is lease to agreed . indicate only question fixing determined. were on is the that a. percentage basis, propor- or fractional or in provides that drill- 4 of Par. to tion lessors’ interest in the entire tract.. within ing operations are not commenced agreement pay It was an to the lessors in land, the termi- said shall year one on particular lump lease the sum of $160 lessee parties unless the to both nate as year per language employed rental. The National Bank of Fort deposit in the First support not does contention lessee that the sum of of lessors to the credit Worth agreed only to a total pay to all' $160 rental. $160 the owners of the 320 tract. acre to agrees warrant title lessor In Par. pro- land, the same and is admitted that the time of to said It the exe- in said lease, owns an interest if lessor cution vides that were estate, simple fee the entire than land less owners an undivided one-half interest in. propor- be reduced shall to then the Sec. E/2 John. tionately. Survey, Gibson and it is further admit- IT. that failure ted there has been no title- from the Looking forward granted to leasehold interest from rental backward conveyed by appellees. that the ren- conclusion we reach to the undivided one- tal, Having lease referred determined agreed, that the lessee lessors, and when lessee pay to lessor annual rental for $160 land, pay conveyed, agreed $160 it follows interest therein con- rely upon land referred that could not re namely, lessor, lessors’ undivided veyed payment clause to duction reduce the interest. The $S0. has not $160 They owned the entire simple failed. rental on said agreement to $160 The they to-wit, conveyed, in what their undi undivided one-half in- land referred vided one-half interest. Griffin v. Stano tract to the 320 and not terest Co., lind Oil & Gas 133 Tex. 125 S.W. entirety. in its acres 545; Republic Co., 2d Reeves v. Production to as land is property referred Tex.Civ.App., 177 S.W.2d refused: actually owned and con- that the same m.w. veyed by the lessors. not did err holding ap- that is for the delay rental clause pellees w-ere to cancellation of the provision the lessee. benefit lease. designed rentals is payment of While it did not bring who finds undesirable for a enable point point, a of error agreed ward on the drilling argues. on the date avert it begin estopped from this preparing This form its brief that court. terminated, however, cit oil and lease, not neces- asserting the lease has Harrison, sarily Refining suitable where the a les- Humble Oil Co. lessor owns The facts of ser interest than the whole but does tract it within the not intend in- bring grant case do lease on all of his instant mentioned terest. in the above Neither effective as announced should become case, appellant in its where the lessor owns the entire case. the instant tract only admission, position portion reply leasing took thereof. $80, had been owed pro- Be that may, as it let us review pleading of mis There was no at all times. written, visions of the lease as under- accident, plea for refor fraud or
take,
to distinguish
take
them from the above
pay more than
mation, and no
offer
formula as outlined. We find the scrive-
case, appel-
the facts of
Under
$80.
using
ner
a more orthodox method
estopped
the lease
lees
declare
estate,
scribing
only
the real
terminated.
convey,
describes
the interest
is to
which
is referred
*5
trial court
of the
cancel-
strument
“said lands”
as
or “lands above
removing said lease and
ling
lease
the
described.” Then we find
paragraph
in
as a cloud on
title is
parties agreeing
the
is the
$160.00
affirmed.
paid
amount of annual rental to be
on said
Affirmed.
point,
complication
land. At this
no
has
However,
arisen.
under the last sentence
Rehearing
Motion
On
for
said
in
320 acres more
less
HALL, Chief Justice.
total
are referred to as
of land
the
amount
Hazarding
probability
repeating
purpose
of
executing
the
considered for the
of
opinion,
expressed
original
assignments, etc.,
in our
releases
findings
by lessee.
explain
phase
in
particular
undertake'to
more
As to
of the written
we shall
this
and,
holding,
instrument,
following
for
at the
tail
reason
scrivener was
the
the
our
the
time,
vigorous
formula,
which,
the
among
answer some of
first
other
same
things, requires
advanced in
motion
that the
contentions
tract be described
rehearing.
Thus, we
real
for
as a whole.
have our first
diversity
the 320 acres
last mentioned
an oil and
scrivener used
description
with the
of the land
conflict
as “Producers 88—Revised
known
form
doubt,
granting
in the
clause. No
Form,” which
Lease
8-42, Texas Standard
have
scrivener should
continued to fol-
the
purpose
prepared
opinion was
for
in our
by describing
low
orthodox
said
n his entire interest
leasing from a lessor
being
a
undivided interest
land
land, regardless of whether he
in a tract
more or less.
in
acres
only
propor-
whole tract
owned
mind,
Having the main
in
issue
provisions
part
thereof.
tionate
appellant’s argument
synchronized,
is that
substance
so
one
paragraph are
(cid:127)each
description
consider the
we should
other, in
for
scrivener
order
with the
though
granting clause as
land
did cover
tracts of.
involved as
to describe
question.
entire
half
the section in
east
whole;
parties have agreed
after the
then
(cid:127)a
substance,
appellant, in
asking
is
us
While
rental
upon
amount
annual
acreage
double
amount of
called
for
upon the
tract
insert
paid
clause,
clause,
yet
granting
willing
so
is not
in
(cid:127)such amount
us to raise the amount
last
for
provisions under the
sen-
of rentals called
under
in the rental clause in
proportionate
propor
clause
the same
in
tence
change
proportion
tion.
we were
will
the number
lessee
acres in the
of interest lessor
without chang
clause
the amount
Evidently,
convenience,
the amount of rental
due
this or a
under the
land.
clause,
consistently
then we
used
would be
form
the oil
writing a
similar
parties, which,
recognized
its niceties are well
new
industry and
under the
doing'.
law,
prohibited
opinion
effect
place
court is
from
jeop-
“is to
construction, ardy
words, by applying
right
roy-
lessee
alty
per cent the
fifty
every
reduce
under
we would
producing oil
which
the instrument
State which
amount.
rentals
an undivided or frac-
paid upon
proportionate
described,
tional
calls for to
interest was
rather than-
simple interest,
tract
grant-
in the whole
of land.
entire
ing clause.” Looking
clause,
is here
saving
or what
leased,
lessee,
the land
we believe the-
or his-
proportionate reduction
termed the
assigns,
difficulty
would
have
in deter-
the event'
designed protect
mining
amount of
which
interest in
owns a lesser
appellees should
pro-
receive if and as oil is
convey.
he undertakes to
which
.
duced from said land. We need not state
ascertain,
the four
seeking
While
here that a formula
giv-
used or the reason
instrument,
true intention
of the
corners
en for determining amount of rental due
to their
original parties pertaining
of the
lease should
be the same
agreement relative
amount
formula
used
ascertain
lessor, we
might
which
'become due
royalty interests in the
pro-
oil if and when
applying-
“common-sense
be
would not
conflicts,
Nothing
duced.
opinion
in our
agreed
that both
finding
rule”
or changes
with
the method of determin-
proportionate reduction
rely
ing royalty and mineral interest as set out
n
such amount.
to determine
and Harrison cases-cited in our
original opinion we undertook
In our
original opinion.
in this
the facts
differentiate
*6
It has been held
by
that
showing that the
rentals
case
King
those in
gas
rents,
on oil and
case,
they
leases
though
even
he
that
grantor in the King
by
lapse
-accrue mere
of time and
only owned a
do not
to have
one-half
de
claimed
pend
production
on
finding
or
land,
specifically retained
of oil
terest in
gas and do not
by
any
exhaust
enumerated
substance
in the tracts
interest
the land. Rentals are
respective
unlike bonus pay
their
scribing them as a
'j
ments, which have been held to be advance
units.
royalties.
pay
Rental
is for additional time
discrepancy,
makes
instru-
acquire
in which to
a limited dominion over
ambiguous,
appellant!
somewhat
but
ment
the land.
It has also been held that rental
complain of
is in no
such ambig-j
payments- derived from
gas
oil and
leases-
it
uity because has vouched for correctness
separate
on
property become community
by electing
upon,
instrument
stand
McGarraugh
personal
and are considered
property.
request
without a
contents
reformat-
. McGarraugh, Tex.Civ.App.,
v
too, appellant evidently
Then
tion.
has