A reconsideration of this case in the light of the motion for rehearing has convinced me that it should be tried again. I believe that appellants' contention that the judgment of the trial court was contradictory should be sustained. The judgment decreed that the instrument in question conveyed to appellees in fee simple as of its date an undivided 1/64 interest in and to all the oil, gas, and other minerals in and under the land described. It then awarded a recovery on a basis of 1/8 of the royalty. By the express provisions of the deed the interest conveyed thereby, whatever it might have been, was subject to the two mineral leases, one in favor of Clayton and the other in favor of the Texas company. If the trial court was right in concluding that the conveyance was of a 1/64 mineral interest, then the very terms of the instrument itself require that we add to that conclusion that the conveyance was subject to the terms of the leases, and a conveyance of a 1/64 mineral interest, subject to the terms of the outstanding leases, should not be construed as a conveyance of 1/64 of the entire mineral production as a royalty. In our original opinion we stated: "The land, at the time the royalty deed was executed, was under an oil and gas lease under which 1/8 royalty was to be paid to the lessors." The record is found upon review not to justify that statement of fact. Neither of the leases existing upon this land was introduced in evidence, and we are not advised as to their terms. If in fact these leases did provide for a 1/8 royalty on all the minerals, *Page 309 that would be a strong circumstance indicating that the intention of the parties to this conveyance was to convey a 1/8 of that royalty interest, regardless of the fact that the instrument conveyed a lesser interest under future leases. On the other hand, if the leases did not contain such provisions for royalty, an impossible situation might result when it was attempted to construe the instrument as a conveyance of 1/8 of the 1/8 royalty. Having decided that there was error in the judgment, we would not be authorized to reform and affirm where it is uncertain that the error could be cured by reformation.
It is my view that it is impossible for us properly to determine the rights of the parties in the absence of knowledge of the contents of these leases. I therefore think that the cause should be remanded for another trial generally, upon which trial the leases could be introduced in evidence and the oral testimony on the question of the intention of the parties be developed in view of the situation existing at the time the instrument was executed.
I cannot agree with my associates that the record before us warrants us to render judgment for appellants. The opinion of the majority on rehearing seems to me to be built upon an incorrect premise. It is assumed and asserted at the beginning of the opinion that the interest conveyed was either (a) a royalty interest of 1/8 of the royalty to be paid under the leases, or (b) a 1/64 mineral interest subject to the terms of the leases. Of course, with that premise, no other conclusion could be arrived at except the one there announced, for it is evident that something more than a mere royalty interest was conveyed. I do not agree that, by demonstrating that something more than a mere royalty interest was conveyed, the conclusion must follow that therefore the royalty interest conveyed was 1/64 of 1/8 rather than 1/8 of 1/8, as expressly provided in the instrument. Generally, instruments of this character convey the same proportionate interest in the royalty which they do in the minerals as such. But it would not be contended that an instrument could not convey a different proportion in the royalty under an outstanding lease to that conveyed in the minerals in the event the lease expired. We have the original instrument before us for our inspection. The granting clause is all printed except this: "1/8 of 1/8 royalty." The first instrument drawn conveyed 1/64 of the royalty and the grantees refused to accept it on the ground that their contract was for 1/8 of the royalty. This court, by reversing and rendering this judgment, necessarily holds that the instrument is free of ambiguity which would render inadmissible any evidence throwing light upon the intention of the parties.
I cannot construe the opinion in any other light. To my mind, no more ambiguous instrument has ever been presented to me for construction. Assuming that a retrial would disclose that a 1/8 royalty was provided by the leases, then to my mind the effect of rendering this cause would be to hold that the use of the word "royalty" in the written portion of the instrument must yield to the printed portion and be wholly disregarded, or, if not, then that we should change the term "1/8 of 1/8 royalty" to "1/64 of 1/8 royalty." This court held, in Curry v. Texas Co.,8 S.W.2d 206, 209, that the expression "1/2 of 1/8 of .08 cents" was ambiguous, and considered oral testimony that would change the word "cents" to "dollars." Surely there is much more ambiguity apparent in the instrument under construction in this case than there was in the instrument there construed. Courts are concerned primarily with arriving at the intention of the parties, and a slight variation from a clear expression in an instrument is sufficient to create an ambiguity authorizing admission of oral testimony to determine the intent.
The instrument in this case was drawn by the grantors' own attorney. It is, to my mind, certainly ambiguous. By well-known principles of law in such a situation it should receive that construction which would carry the greatest estate which said instrument might be construed to convey. I believe that, if by the terms of the leases outstanding upon this land at the time the instrument was drawn, Jones and wife were to receive a 1/8 royalty, then, in view of the fact that it was clearly the grantees' understanding that they were to receive 1/8 of the royalty, and in view of the fact that the grantors' attorney prepared the instrument, and giving effect to the rule that the written portion should control the printed portion, the instrument should be construed as conveying 1/8 of 1/8 royalty payable to the grantors under the terms of the outstanding leases, even though it conveyed a less interest in royalties under future leases, in the event the then existing leases should become canceled. Entertaining these views, I cannot agree with my associates that judgment should be here rendered in favor of appellants. *Page 310