Smith v. Allison

Mr. Justice McCall

concurring in the result.

I concur in the result reached by the Court herein. Like my brethren I do not want to hold that the “Mother Hubbard” clause in this instrument conveyed the quarter section of land not specifically described therein. However, I am unable to see the ambiguity that they have found, and the more closely I look the more firmly I am convinced that it is not there. Rather than conjure up such an ephemeral ambiguity with disappearing qualities I would reach the same result by applying a rule of construction as follows:

When such a “Mother Hubbard” provision is used alone in an instrument, it conveys all the land owned by the grantor within the designated survey, county, city or other area. But when such a provision follows the description of a specific *231tract or tracts, it is ordinarily the purpose of such provision to bring within the conveyance small strips of land bordering the described tract or tracts which may not be included because of faulty description or may have been acquired by adverse possession. Under these circumstances the “Mother Hubbard” provision should be considered as supplemental to the specific description of the particular tract which is the primary subject of the conveyance, and such provision should not be regarded as an independent description of any tract wholly separate and distinct from the particularly described tract unless the parties have clearly indicated in the instrument that such was their intention.

In speaking of the maxim of construction known as ejusdem generis, Judge Sibley in Phillips v. Houston National Bank, Houston, Texas, (C.C.A., Texas) 108 F. 2d 934, 936, stated: “It serves to prevent general words, loosely used in connection with specific terms, from extending the operating of the instrument into a field not really intended.”

While the instant case does not fall within the application of the doctrine of ejusdem generis, the same principle and policy should be applied to the general terms of such “Mother Hubbard” provision when used with specific description so that such general terms will not extend the operation of the instrument as to lands not really intended to be conveyed.

Opinion delivered December 12, 1956.

ON REHEARING

Mr. Justice Smith

delivered the opinion of the Court.

In our original opinion we said that, “the ultimate purpose in construing a deed is to ascertain the intention of the grantor, and when this intention is ascertained, that construction which carries the intention into effect, when such intention is lawful, governs and controls.” This statement of law is entirely correct when applied to the facts in Gibbs v. Barkley, 242 S.W. 462, Com. App., judgment adopted, for there the Court was concerned with the construction of a deed of gift. In such a case only the intention of the grantor is material and that intention alone controls. Likewise the same was true in Kelly v. Womack, 153 Texas 371, 268 S.W. 2d 903.

But upon further consideration we have concluded that the *232correct rule to be followed in the construction of a deed passing from a seller to a buyer for a valuable consideration is rather that the intention of the parties is to be ascertained. This must be true because the deed purports to express a bilateral agreement. It is to evidence a meeting of the minds of both parties as to the property intended to be conveyed and paid for. Rio Bravo Oil. Co. v. Weed, 121 Texas 427, 50 S.W. 2d 1080, 85 A.L.R. 391; Totton v. Smith, 131 Texas 219, 113 S.W. 2d 517; Bumpass v. Bond, 131 Texas 266, 114 S.W. 2d 1172; Humble Oil & Refining Co. v. Ellison, 134 Texas 140, 132 S.W. 2d 395; Humble Oil & Refining Co. v. Mullican, 144 Texas 609, 192 S.W. 2d 770; Superior Oil Co. v. Stanolind Oil & Gas Co., 150 Texas 317, 240 S.W. 2d 281.

While, therefore, the submission by the trial court of the issue inquiring as to the intent only of the grantor was error, in the light of all of the facts and circumstances, neverthless we thing the error was harmless.

In the first place there is no conflict in the testimony. All of the facts and circumstances are without dispute. There is no fact or circumstance tending to show that the intention of the grantee in this mineral deed was in any respect different to that of the grantor. The finding of the jury that Mrs. Clark did not intend to convey to Mrs. Neely an undivided one-half interest in the minerals in the northeast one-quarter of Section 124 would be tantamount to a finding that this was also the intention of the parties. Under the evidence the intention of the grantee must have been the same as that of the grantor.

In the second place, and probably more important and conclusive, we are of the opinion that under the facts and circumstances of this case and quite aside from the subjective testimony of the grantor, Mrs. Clark, that she did not intend to convey the mineral interest in the northeast quarter, the intention of the parties becomes a question of law for the reason there is no evidence that would support a jury finding that the parties did intend by this instrument that the northeast quarter or one-half of the minerals thereunder be sold and conveyed by Mrs. Clark to Mrs. Neely.

Mrs. Sullenger, formerly Mrs. Clark, testified, in effect, that the consideration for the sale was $1600.00 at the rate of $5.00 per acre. Her testimony was as follows:

“Q. Mrs. Sullenger how much did you receive for the undivided one-half of the minerals?

*233“A. $10.00 per acre.

“Q. In this 320 acres?

“A. $10.00 per acre.

“Q. About $10.00 per mineral acre?

“A. That is right.

“Q. It would be $5.00 for the one-half interest per acre. Is that right?

“A. That is right.

“Q. And that makes a total of how much?

“A. $1600.00, is that right?

“Q. $1600.00 was what you received, wasn’t it?

“A. Yes.”

She was paid $1600.00 and the two quarter sections particularly described comprise 320 acres. At the time of this transaction Mrs. Clark owned not only the southeast, northwest, and northeast quarters of Section 124, but also owned Sections 123 and 145, all included in H. & T. C. Surveys. Although the petitioners here are claiming no interest in these two adjoining sections, nevertheless if by the terms of the “Mother Hubbard” clause one-half of the minerals in the norths east quarter of Section 124 is conveyed, we can see no reason why the deed would not likewise convey at least one-half of the minerals under the two adjoining sections. As said by the Court of Civil Appeals, “It is evident Mrs. Clark did not intend to convey all land owned by her adjoining the two quarter sections specifically described.”

In the Sun Oil Co. v. Bennett, 125 Texas 540, 84 S.W. 2d 447, 452, the Court was called upon to construe an almost identical clause and in holding that the deed thereby conveyed a 2.59 acre tract not included within the particular description, said:

“* * * Its (the general or Mother Hubbard clause) apparent reasonable purpose is to prevent the leaving of small unleased *234pieces or strips of land, like the tract here in controversy, which may exist without the knowledge of one or both of the parties by reason of incorrect surveying, careless location of fences, or other mistake.”

We have found no other case in which this Court has applied any other rule or has construed such a clause to convey large bodies of land in addition to that specifically described and surely not so where the clause was held to convey considerably more land than that specifically described. See also Gulf Production Co. v. Spear, 125 Texas 530, 84 S.W. 2d 452; Sun Oil Co. v. Burns, 125 Texas 549, 84 S.W. 2d 442.

To give the ultimate effect contended for by the respondents would result in the conveyance of one-half the minerals under the 320 acres particularly described and additionally the conveyance by the general catch-all clause of one-half of the minerals under 1400 acres. This result just does not comport with ordinary custom or practice, and we think the parties here could have had no such intention.

The general clause also recited that:

“Should the foregoing particular description for any reason prove incorrect or inadequate to cover the lands intended to be conveyed as above specified, grantor agrees to execute such instrument or instruments that may be necessary to correct such particular description.”

The question naturally arises why the need for this provision, and how could resort thereto ever become proper or necessary if the general clause is to be relied upon as conveying all of the land owned by Mrs. Clark within the section 124 and adjoining sections. How would the need for the correction of the particular description ever come about if the parties did not intend to contract only with respect to the lands particularly described and to such small strips or tracts that could properly be said to constitute a part of those tracts? No one ever asked Mrs. Clark to revise or correct this deed in any respect.

Another fact, showing the intention of the parties, is that contemporaneously with the deed in question Mrs. Clark executed oil and gas leases to the same grantee, Mrs. Neely, which covered the southeast and the northwest quarters of Section 124 and no more.

*235The deed provides “this conveyance is made subject to any valid and subsisting oil, gas or other mineral lease or leases on said land, including also any mineral lease, if any, heretofore made or being contemporaneously made from grantor to grantee.” The meaning thus attributed in these leases to the term “said land” is that it embraces only the two quarter sections particularly described in the deed.

We conclude from a consideration of the entire deed that the intention of the parties was to convey only that land particularly described and any strips or small tracts that might have been contiguous or been said to constitute a part of the described tracts and that the clause did not serve to convey the northeast quarter or the minerals thereunder.

Our former opinion is modified to the extent as herein stated and in all other respects the motion for rehearing is overruled.

Associate Jutice Nor veil not sitting.

Opinion delivered April 24, 1957.