Ellis v. Waters

308 S.W.2d 169, 8 Oil & Gas Rep. 813, 1957 Tex. App. LEXIS 2244
CourtCourt of Appeals of Texas
DecidedNovember 18, 1957
DocketNo. 6710
StatusPublished
Cited by1 cases

This text of 308 S.W.2d 169 (Ellis v. Waters) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellis v. Waters, 308 S.W.2d 169, 8 Oil & Gas Rep. 813, 1957 Tex. App. LEXIS 2244 (Tex. Ct. App. 1957).

Opinion

PITTS, Chief Justice.

This is a suit in trespass to try title filed by appellant, Kenneth Ellis, against appel-lee, K. M. Waters, involving an undivided mineral interest in a described 160 acre tract of land located in Childress County, Texas. It was agreed by stipulation of the parties that S. B. W. Hughes is the common source of title of the premises in litigation. It is conceded that appellant is the fee simple owner of the surface and a part of the mineral interest in the said land but appellee contends that he owns an undivided l/i interest in and to all of the oil, gas and other minerals in and under the said land. Appellant concedes that appel-lee owns a ¼ undivided mineral interest in the said land but no more.

The case was tried to the court without a jury, as a result of which judgment was rendered sustaining appellee’s contentions by vesting title and possession of the land and minerals therein in appellant, Kenneth Ellis, except for ½ undivided interest in the [171]*171minerals, the title of which was vested in appellee, K. M. Waters. Appellant perfected an appeal and here charges it was error to award appellee more than J4 undivided interest in the said mineral rights.

The evidence consists of only three deeds introduced in addition to the agreed stipulation of the parties previously herein mentioned. Two mineral deeds exactly alike and containing verbatim language, except for the dates executed, the spelling of the appellee’s name in the limiting clauses and the use of the word “each” added in the second deed, were executed for the same stipulated consideration by S. B. W. Hughes and wife, Lena B. Hughes, of dates respectively August 12, 1939 and January 3, 1941, conveying mineral interests in the land to “K. M. Watters” in the first deed and to “K. M. Waters” in the second deed (note the spelling of the name with two “t’s” in the first deed but using only one “t” in the second deed). Both deeds were duly recorded in the office of the county clerk of Childress County, Texas. Thereafter, on November 30, 1956, S. B. W. Hughes and Wife, Lena Hughes, executed for a valuable consideration a general warranty deed conveying fee simple title of the 160 acres of land in question to appellant, Kenneth Ellis, without mentioning any former mineral deeds having been executed and without reserving in any way any mineral or royalty interests. However, it is conceded that appellant and all others had constructive notice of the contents of the two mineral deeds previously herein mentioned conveying mineral interest to appellee herein who placed such deeds of record.

Each of the two mineral deeds executed by Hughes and wife previously herein mentioned purported to convey to' appellee herein, for a consideration of $100, an undivided interest in all of the minerals in and under the said 160 acres of land therein described. Then in the third paragraph of the first deed we find the following language :

“It is agreed and understood that the lease interests and all future rentals on said land, for oil, gas and mineral privileges shall be owned jointly by S. B. W. Hughes owning three fourths and K. M. Watters owning One Fourth interest in all oil, gas and other minerals in and upon said land, together with the same interest in all future rents.”

The language in the third paragraph of the second deed is of the same import using the same language, except for the shown underscored variations in the third paragraph thereof expressed in the following language :

“It is agreed and understood that the lease interests and all future rentals on said land, for oil, gas and mineral privileges shall be owned jointly by S. B. W. Hughes owning three fourths and K. M. Waters each owning One Fourth interest in all oil, gas and other minerals in and upon said land, together with the same interest in all future rents.” (Emphasis added.)

Appellant contends that, although the second deed executed makes no reference to the first deed, because of the language therein used it must have been executed in lieu of the first deed as a correction deed or for some other reason, but that, in any event, because of the expressed interests of the parties in the third paragraph of both mineral deeds limiting appellee’s interest to ¼ of the jointly owned mineral rights and definitely fixing the interest of appellant’s predecessor therein at ¾ of the same, the trial court erred in construing the language otherwise by awarding each of the parties to this suit ½ of an undivided interest in the mineral rights. Appellee relies upon both mineral deeds, which he pleaded and introduced in evidence, as a result of which he contends that each mineral deed conveyed to him a ¼ undivided interest in all the mineral rights, notwithstanding the apparent otherwise limitation language used in the third paragraph of each mineral deed, and particularly in the second mineral deed, and he further contends that because of the use of the word [172]*172“each” following his name in the third paragraph of the second mineral- deed, the language is ambiguous, however, there was no pleading of ambiguity and no attempt made to offer parol evidence to explain the claimed ambiguity. It therefore appears that the rights of the parties can be determined by giving a proper construction of the language used in the second deed of date January 3, 1941, and particularly in construing the third paragraph thereof. Both parties here concede that in construing the second deed we must be guided by the intentions of the parties thereto as determined by the language therein used.

In the case of Greene v. White, 137 Tex. 561, 153 S.W.Zd 575, 583, 136 A.L.R. 626, the court said in part:

“The general rule is that the grantee in a deed accepted by him is a party to the deed, even though he does not sign it, and that he is concluded by recitals in the deed and by reservations contained therein in favor of the grantor.”

In the case of Totton v. Smith, 131 Tex. 219, 113 S.W.2d 517, 518, the court said in part:

“The object of construing any deed is to ascertain the intention of the parties as expressed in the deed itself and such intention expressed therein is of controlling importance.”

In applying the foregoing rules in ascertaining the intention of the parties to a mineral deed the question is not determined by the intention which the parties may have had'but failed to express but their intention which by the terms of the instrument they did express. First National Bank of Snyder v. Evans, Tex.Civ.App., 169 S.W.2d 754 (writ refused). Where the grantor’s intentions have been clearly expressed in a deed, other clauses must be construed to conform to that intention notwithstanding such construction may have the effect of weakening other clauses therein. Any other construction would defeat the purpose of the grantor and completely destroy his expressed intention. Robison v. Murrell, Tex.Civ.App., 184 S.W.2d 529 and other authorities there cited. Restrictive words in the latter part of a deed control the grant. Cromwell v. Holliday, 34 Tex. 463, 464.

Concerning the question of ambiguity raised by appellee, we find in the case of Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513,

Related

Waters v. Ellis
312 S.W.2d 231 (Texas Supreme Court, 1958)

Cite This Page — Counsel Stack

Bluebook (online)
308 S.W.2d 169, 8 Oil & Gas Rep. 813, 1957 Tex. App. LEXIS 2244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-waters-texapp-1957.