McGuire v. Bruce

332 S.W.2d 110, 12 Oil & Gas Rep. 737, 1959 Tex. App. LEXIS 1801

• Court: Court of Appeals of Texas
• Decided: September 17, 1959
• Docket: 6267
• Status: Published

Opinions

ANDERSON, Chief Justice.

We are called upon to determine the estate that was granted by the following royalty deed, portions of which we italicize:

“County of Liberty

1 J

“Know All Men by These Presents:

“That we, Allen Barrett, and Alice Barrett, husband and wife, of the County of Liberty, and State of Texas, for and in consideration of the sum of Three Thousand Dollars to us in hand paid by W. T. Wood? Trustee, the receipt of which is hereby acknowledged have Granted, Sold and Conveyed, and by these presents do Grant, Sell and Convey unto the said W. T. Woods, Trustee of the County of Liberty, and State of Texas a one-sixteenth (⅝&) part, portion or royalty in, under and upon that certain tract of land lying and being situated in the County of Liberty, State of Texas, and more particularly described as follows:

“Being nine (9) acres off of the East part of the Allen Barrett IS acre tract in the N. G. White League, and bounded as follows: [15-acre tract described]

“To find the beginning corner of the land in which the ¾6 royalty interest is hereby conveyed, commence at the northwest corner of the said 15 acre tract;

“Thence run East 180 feet to a stake for the Northeast corner of the 6 acre tract in which the minerals were conveyed to said Partlow and the Northwest and beginning corner of this tract;

“Thence South parallel with the west line of said 15 acre tract 200 feet for corner;

“Thence east parallel with the North line of said 15 acre tract to an interior northeast corner of the said Partlow 6 acre tract;

“Thence South parallel with the East line of said 6 acre tract to the south line of said 15 acre tract;

“Thence East along the south line of said 15 acre tract to the Southeast corner thereof;

“Thence Northerly along the East line of said 15 acre tract to the Northeast corner thereof;

“Thence Westerly along the North line of said 15 acre tract to the place of beginning, to contain 9 acres of land. It being the intention hereby to convey to the Grantee a one-half of the one-eighth royalty reserved by us in lease given by these grantors to B. G. Riviere October 1st, 1921 of record in Volume 107, Page 254 of the Deed Records of said County.

“To Have and to Hold the above described royalty interest together with all and singular the rights and appurtenances thereto in anywise belonging unto the said W. T. Woods, Trustee, and his heirs and assigns forever. And we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said royalty interest unto the said W. T. Woods, Trustee, his heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.

“Witness our hands at Liberty, Texas, this 26th day of November, A.D.1923.

“Allen Barrett

“Alice Barrett”

“ (Acknowledgments)

The matter was placed in issue by an action in form of trespass to try title. H. L. McGuire and A. J. McGuire, who between them own the title of Allen and Alice Barrett (grantors in the foregoing royalty deed), sued G. E. Bruce and numerous other defendants who claim under the deed. They, the McGuires, contend that the royalty deed conveyed only one-half of the one-eighth royalty reserved in the lease referred to in the deed (the lease Allen and Alice Barrett made in favor of B. G. Riviere under date of October 1, 1921), and that the estate so granted expired or lapsed when the lease itself lapsed prior to January 1, 1931. Appellees, on the other hand, contend that the royalty deed conveyed a one-sixteenth royalty interest in fee or as a perpetual interest. Upon undisputed facts the trial court construed the deed as having conveyed a perpetual one-sixteenth royalty interest and denied the plaintiffs recovery to that extent. The plaintiffs appealed.

We have concluded that the trial judge correctly construed the deed. We accept as correct the proposition that if only royalty under the Riviere lease was granted, the estate so granted lapsed when the lease lapsed. But we cannot subscribe to the theory that an intention to grant only royalty under the Riviere lease is clearly evidenced by the following sentence of the deed: “It being the intention hereby to convey to the grantee a one-half of the one-eighth royalty reserved by us in lease given by these grantors to B. G. Riviere October 1st, 1921 of record in Volume 107, Page 254 of the Deed Records of said County.” The sentence may be as well explained upon the theory that it was included in order to make doubly certain that the deed was to apply to royalty under the lease that was then already in force. And we feel th'at it must be so interpreted, since there is nothing to render inapplicable the general rule that requires that the deed be construed in the light most favorable to the grantee. 14— B Tex.Jur., Deeds, sec. 133, p. 580. Moreover, had it been the intention of the grantors to grant only royalty under the Riviere lease, the improbability that they would have employed the language they did in the granting clause is so strong as to leave little room to doubt that a permanent estate was , intended. With the above-quoted sentence construed as we construe it, the deed clearly granted a one-sixteenth royalty in fee or in perpetuity. Brown v. Smith, 141 Tex. 425, 174 S.W.2d 43. We have carefully examined the cases cited in appellants’ brief, but find nothing in them requiring a different construction of the deed.

It may be added that the construction that has been given th'e deed appears to be in keeping with the construction placed upon it by the Barrett heirs who conveyed to appellant H. L. McGuire. They represented in their deeds to him that they owned only a ⅛2 royalty. In addition to the ¾6 royalty . conveyed by the deed in question, Allen and ' Alice Barrett had also conveyed a ⅜2 roy- • alty to E. B. Pickett, Jr., on January 5, 1925.

The judgment of the trial court is affirmed.