Benge v. Scharbauer

259 S.W.2d 166, 152 Tex. 447, 2 Oil & Gas Rep. 1350, 1953 Tex. LEXIS 467
CourtTexas Supreme Court
DecidedJune 17, 1953
DocketA-3939
StatusPublished
Cited by143 cases

This text of 259 S.W.2d 166 (Benge v. Scharbauer) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benge v. Scharbauer, 259 S.W.2d 166, 152 Tex. 447, 2 Oil & Gas Rep. 1350, 1953 Tex. LEXIS 467 (Tex. 1953).

Opinions

Mr. Justice Griffin

delivered the opinion of the Court.

This cause involves the construction of a paragraph in a deed from Clarence Scharbauer, Sr., et ux (predecessors in title) as grantors to A. H. Benge, who with the heirs of his deceased wife, are the petitioners. The deed is dated December 17, 1941, and was delivered shortly thereafter and immediately recorded in Midland County, Texas, where the land was located. [450]*450At the time of the trade, and the negotiations between the parties leading up to the execution and delivery of the deed, it was understood by all parties that there was an outstanding l/4th full mineral interest in all the lands, and the trade was made subject to such l/4th mineral interest as. outstanding, and no contention has ever been made regarding such l/4th interest.

On April 18, 1942 A. H. Benge and wife executed to Holt Jowell an oil, gas and mineral lease on the six sections of land conveyed to them by the Scharbauers on December 17, 1941. This lease covered the title to all of the oil, gas and other minerals in, on and under the six sections, but contained the usual paragraph reducing the bonuses, rentals and royalties, etc., in proportion to lessors’ ownership of the whole of the title. The bonus under this lease was paid 3/8ths to Benge, 3/8ths to the Scharbauers, and l/4th to the owners of the outstanding mineral interest. All parties took their money. Jowell duly assigned the lease to Magnolia Petroleum Company, who paid the annual delay rentals to the parties and in the proportions set out above, and without any complaint on the part of any party, for the years 1943 to ,1950, both inclusive. On December 27, 1950, as a result of a claim on the part of Benge, Magnolia Petroleum Company paid to Benge the difference between the 3/8ths interest for which he had been theretofore paid, and the 5/8ths interest he then claimed to own under the deed from the Scharbauers. Shortly thereafter the Magnolia Petroleum Company filed this suit in the nature of an interpleader and called on the court to determine the ownership of l/4th mineral interest claimed by both Benge and Scharbauer and to determine who was entitled to receive the bonuses, delay rentals, royalties, etc. due under the lease. Benge, et al answered claiming title to 5/8ths mineral interest and 5/8ths of all bonuses, delay rentals and royalties under the lease. The Scharbauers answered claiming they were entitled to receive 3/8ths of all these benefits under the lease. Trial was before a jury, but at the conclusion of the testimony, the trial court instructed a verdict in favor of the Scharbauers for their claimed 3/8ths mineral interest and overruled the motion for instructed verdict filed by Benge. On appeal this judgment of the trial court was affirmed by the Court of Civil Appeals. 254 S.W. 2d 236.

We have decided that the deed in question is not ambiguous, and must be given the legal effect resulting from a construction of the language contained within the four corners of the instrument. There are certain well settled rules governing us in our construction of this instrument.

[451]*451All parts of the instrument must be given effect if possible to do so without violating any legal principles. Even though different parts of the deed may appear to be contradictory and inconsistent with each other — if possible, the court must construe the language of the deed so as to give effect to all provisions thereof and will harmonize all provisions therein, and not strike down any part of the deed, unless there is an irreconcilable conflict wherein one part of the instrument destroys in effect another part thereof. Associated Oil Co. et al v. Hart et al. Com. App., 277 S.W. 1043 (3); Watkins et ux v. Slaughter et al, 144 Texas 179, 189 S.W. 2d 699 (3) ; Fleming v. Ashcroft et al, 142 Texas 41, 175 S.W. 2d 401, 406; Hester v. Weaver et al, Tex. Civ. App., 252 S.W. 2d 214 (1), writ refused; 14 T. J. 919, et seq., Sec. 140.

It is well settled that the owners of land may reserve to themselves minerals or mineral rights, including the oil or any right or ownership therein. Humphreys-Mexia Co. et al v. Gammon et al, 113 Texas 247, 254 S.W. 296; 29 A.L.R. 607; Hoffman et al v. Magnolia Petroleum Co. et al, Com. App., 273 S.W. 828 (4) ; Watkins v. Slaughter, supra; Curry v. Texas Company, Civ. App., 18 S.W. 2d 256, writ dismissed.; 31-A T. J. 64, Sec. 32, and authorities therein cited.

A grantor may reserve unto himself mineral rights, and he may also reserve royalties, bonuses and rentals — either one, more or all. Schlitter v. Smith, 128 Texas 628, 101 S.W. 2d 543; King v. First Nat. Bank of Wichita Falls, 144 Texas 583, 192 S.W. 2d 260, 163 A.L.R. 1128; State Nat. Bank of Corpus Christi v. Morgan et al, 135 Texas 509, 143 S.W. 2d 757; Collier et al v. Caraway et al, Texas Civ. App., 140 S.W. 2d 910, writ refused; Curry v. Texas Company, supra; Kokernot et ux v. Caldwell et al, Texas Civ. App., 231 S.W. 2d 528, writ refused.

An instrument may convey two separate estates in the minerals, one of which may be a full mineral interest and the other a royalty, or other interest in the minerals. Richardson v. Hart, 143 Texas 392, 185 S.W. 2d 563, 565; Countiss et al v. Baldwin et al, Texas Civ. App., 151 S.W. 2d 235, writ dismissed, correct judgment; MacDonald et al v. Sanders et ux, Texas Civ. App., 207 S.W. 2d 155, refused, N. R. E.; Acklin et al v. Fuqua, Texas Civ. App., 193 S.W. 2d 297, N. R. E.

It is also well settled that where the conveyance represents that the grantor is the owner of a particular interest in property [452]*452and such interest is conveyed by the deed, the grantor is estopped by his covenant of general warranty to claim that the deed conveyed a less estate than grantor’s ownership. Duhig et al v. Peavy-Moore Lumber Co., Inc., 135 Texas 503, 144 S.W. 2d 878.

The covenant of general warranty extends only to what is granted, or what purports to be granted by the deed. Clark et al v. Gauntt, 138 Texas 558, 161 S.W. 2d 270; Adams et al v. Duncan et al, 147 Texas 332, 215 S.W. 2d 599, 603; Nye et al v. Bradford, 144 Texas 618, 193 S.W. 2d 165 (3), 169 A. L. R. 1.

Keeping in mind the above rules of law, let us examine the deed governing the rights of the parties therein. The deed, except for the reservation of an interest in the minerals and the provision as to the grantee’s power to execute leases and for payment of bonuses, rentals and royalties under such leases, is an ordinary general warranty deed. It purports to convey to the grantee the several sections of land with reservation to the grantors of an undivided 3/8ths interest in the oil, gas and other minerals, and gives to the grantee and his assigns sole power to execute all future oil, gas and other mineral leases without joinder of the grantors, “but said leases shall provide for the payment of three-eighths (3/8ths) of all the bonuses, rentals and royalties to the grantors”. The warranty is a general warranty of title to “the said premises”. At the time when the deed was executed and delivered the grantors did not own the entire mineral interest in the land, there being outstanding in third parties a l/4th mineral interest which was not mentioned in the deed. Disregarding for the present the clause above quoted about bonuses, rentals and royalties to be paid the grantors on all future leases, the deed purported to convey to the grantee the surface and 5/8ths of the minerals in the land and to reserve to the grantors a 3/8ths mineral interest, and it warranted the title to what it purported to convey.

Under the decision in Duhig v.

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Bluebook (online)
259 S.W.2d 166, 152 Tex. 447, 2 Oil & Gas Rep. 1350, 1953 Tex. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benge-v-scharbauer-tex-1953.