Smith v. Allison

Mr. Justice Calvert joined by Justice Walker,

dissenting on rehearing.

When judgment was entered by this court in this case and the opinions by Associate Justices Smith and McCall were filed on December 12, 1956, we noted our concurrence in the result. The reason for that notation was that we did not agree with either opinion on the principal question discussed, to wit, the proper construction of the mineral deed executed by Bertha B. Clark.

We did not agree with the majority opinion because we do not believe the language of the deed gives rise to a patent ambiguity such as is found by the majority to exist. We did not agree with the concurring opinion filed by Justice McCall because the ultimate effect of so limiting the operative effect of a “Mother Hubbard” clause is, for all practical purposes, to render it meaningless. This will be so because a deed conveying land specifically described and containing no “Mother Hubbard” clause will, in the absence of a clear expression of a contrary intention, operate to convey small strips of land bordering the described tract or tracts. Strayhorn v. Jones, 157 Texas ________, 300 S.W. 2d 623; Cantley v. Gulf Production Co., 135 Texas *236339, 143 S.W. 2d 912, 915; State v. Arnim, Texas Civ. App., 173 S.W. 2d 503, 508, writ ref. w.o.m.

Stated briefly, our theory of the proper construction of the Clark deed is this: Sun Oil Co. v. Burns and Sun Oil Co. v. Bennett, cited in the majority opinion, make clear that the normal and usual purpose of a “Mother Hubbard” clause in an instrument of conveyance is to make certain that the instrument conveys small strips of land bordering the described tract or tracts. When we undertake to apply the language of the Clark deed to the subject matter on which it operates we discover that if given its literal meaning it will accomplish a result wholly at odds with its normal and usual purpose in that in addition to the property specifically described and any small bordering strips it will operate to convey Sections 123 and 145 and the northeast l/4th of Section 124 of the H. & T. C. Ry. Co. Survey, Block 25. This situation may not give rise to the classic type of latent ambiguity noted in Harrison v. Manvel Oil Co., 142 Texas 669, 180 S.W. 2d 909, 912, but it fits precisely the rule approved in First National Bank of Amarillo v. Rush, Texas Com. App., 210 S.W. 521, 525-526, where the court quoted from Kleuter v. Joseph Schlitz Brewing Co., 143 Wis. 347, 128 N.W. 43, 32 L.R.A. (N.S.) 383, as follows: “* * * The words of a contract, in themselves, may be plain, yet, when applied to the situation with which it deals, not plain, the literal sense leading to such unreasonableness as to suggest that the parties probably did not so intend. In so applying the contract, oral testimony is generally necessary and permissible to the end that the full scope of the situation dealt with may be observed. * * *” See also Smith v. Texas & N. O. R. Co., 101 Texas 405, 108 S.W. 819, 820, where it is said: “* * * It is an elementary rule that parole evidence is not admissible to vary the terms of a written contract. But when we come to apply the description of property in a conveyance, an ambiguity or a doubt is disclosed as to whether the property is embraced within the description, a different rule obtains, and it is permissible to prove by oral testimony what property the parties meant to embrace. * * *” Based on the foregoing authorities we conclude that there is a latent ambiguity in the Clark deed authorizing the receipt of parol evidence to show the true intention of the parties.

The difference between our suggested approach to the problem and that suggested by Justice McCall is this: whereas under Justice McCall’s approach a “Mother Hubbard” clause would never operate to convey more than small strips bordering the *237land specifically described “unless the parties have clearly indicated in the instrument that such was their intention,” under our approach the court would apply the language of the deed or lease to the subject matter thereof and would thus ascertain what property, other than that specifically described, would be conveyed by the “Mother Hubbard” clause if it were given effect according to its literal terms. If it then appeared that the clause would operate to convey more than small strips bordering the lands specifically described extrinsic evidence would be admitted for the purpose of ascertaining the intention of the parties. The clause would then be held to convey all lands which the evidence established the parties intended it to convey.

On further consideration of the other questions discussed in the majority opinions, we have now concluded that we cannot concur in the result reached but must dissent therefrom. The only issue submitted to the jury inquired whether the grantor intended to convey an undivided one-half interest in the minerals under the northeast quarter of the section. An explanatory instruction submitted in connection with the issue advised the jury that the word “intent” means the purpose a person has in mind as gathered from the contents of the instrument considered in the light of the surrounding facts and circumstances. Respondents objected to the issue on the ground that a negative answer would not support a judgment for petitioners and that the issue should inquire as to the intention of the parties.

We agree with the majority opinion on rehearing that the ultimate purpose in construing a conveyance, other than a deed of gift, is to ascertain and give effect to the intention of the parties. Since this “intention” must be gathered from the language of the instrument considered in the light of the circumstances under which it was executed, the difference between intention of the grantor and intention of the parties is perhaps of little consequence when the deed is construed by the Court. The difference becomes important, however, when the issue is to be determined by the jury as the trier of fact.

In the present case the grantor was permitted to testify over respondent’s objection that she intended to convey by the deed in question one-half of the minerals under 320 acres of land, and that she did not intend to convey any interest in the minerals under the northeast quarter of the section. This is not an equitable proceeding, and subjective intent of either of the parties, as distinguished from their intention as expressed by *238the language of the instrument, should not be considered for any purpose. But the issue submitted to the jury, by which they were required to determine only the grantor’s intention, was nothing less than an invitation to consider her subjective intent as disclosed by the testimony mentioned. If the issue had been properly submitted, the jury would have been in much better position to understand the full import of the explanatory instruction. We are in agreement then with the conclusion of the majority on rehearing that the submission of the issue was error.

The majority reason, however, that the error was harmless because the evidence shows as a matter of law that the parties intended to convey only one-half of the minerals under the land specifically described in the deed. With this conclusion we do not agree. If the undisputed evidence showed that the parties had agreed on a price of $10.00 per mineral acre and that the grantor received a total of $1600.00, it would not be difficult to say that they intended the deed to convey only one-half of the minerals under 320 acres of land. The testimony of the grantor quoted in the majority opinion is not susceptible to this construction. The witness had just stated that she intended to convey one-half of the minerals under 320 acres of land. She then testified that she “received” $10.00 per acre for one-half of the minerals under the 320 acres, or a total of $1600.00. This establishes only that the consideration for the conveyance was $1600.00, and that to obtain that amount received per mineral acre the witness simply divided the total consideration by the number of mineral acres she intended to convey. The record is completely silent as to the negotiations and agreements leading up to the execution of the deed, and it is impossible to determine whether the parties ever discussed or agreed upon a price by the acre.

It is difficult to understand how the contemporaneous oil and gas leases throw any light on the question. The deed, which is not mentioned in either of the leases, does not purport to convey an interest in the minerals under the same land covered by the leases, but simply recites that it is subject to all valid leases, including any contemporaneously made from the grantor to the grantee. The majority seem to assume, without any basis either in law or in fact, that whenever a mineral deed is executed contemnoraneously with one or more oil and gas leases, the parties always intend the instruments to cover the same land.

*239The majority also reason that to give the “Mother Hubbard” clause the effect contended for by respondents would result in the conveyance of one-half of the minerals under 1400 acres in addition to the two quarter-sections particularly described in the instrument. By citing this as a circumstances which requires a construction of the deed in favor of petitioners, the majority now appears to be inclining toward some of the views expressed in the concurring opinion of Justice McCall.

As pointed out above, it is our opinion that an application of the language of the deed to the land owned by the grantor at the time of its execution leads to such an unreasonable result that parol evidence should be admitted to show the true intention of the parties. It should not be said, however, that this court will not give effect to the plain provision of a contract or conveyance simply because it may appear to lead to an unreasonable result. Parties should be free to contract in what we may regard as an unusual manner and for an unreasonable result if they so desire. In Holloway’s Unknown Heirs v. What-ley, 133 Texas 608, 131 S.W. 2d 89, 123 A.L.R. 843, a deed purporting to convey three tracts particularly described therein and providing that “if there is any other land owned by me in Liberty County, Texas, or any land, the title to which stands in my name, it is hereby conveyed, the intention of this instrument being to convey all land owned by me in said County,” was held to convey a mineral interest previously reserved by the grantor in three other tracts of land. The result of adopting the construction urged by respondents in the present case appears to us no more unreasonable than the holding of the cited case.

Entirely aside from these considerations, it is our opinion that the record in this case contains evidence which affirmatively raises an issue of fact for the jury. Barker v. Coastal Builders, Inc., 153 Texas 540, 271 S.W. 2d 798, was an action to reform a deed so as to except a small tract which the grantor claimed had been included through mutual mistake. The Court of Civil Appeals (259 S.W. 2d 591) held that the mistake was proved as a matter of law. This court reversed the judgment of the Court of Civil Appeals and affirmed that of the trial court. The following two reasons were given for our holding that the evidence raised an issue of fact for the jury: (1) all of the testimony regarding the agreement to reserve the tract in controversy came from an interested witness; (2) “The testimony as to the reservation is contradicted by each and *240every written instrument in the record, affecting the transaction.”

If the language of the instrument was regarded as significant in the Coastal Builders case, we are unable to see how the provisions of the deed can be entirely disregarded in the present case. Regardless of differences of opinion as to the effect of other evidence in the case, the fact remains that the deed contains language which, if given its usual and literal meaning, would convey an interest in the minerals under the northeast quarter of the section. The language of the instrument itself thus contradicts the majority holding. Unless the Coastal Builders • case is distinguished or overruled, neither of which we are able to do, it is our opinion that the provisions of the deed should be held to raise an issue of fact for the jury.

We would affirm the judgment of the Court of Civil Appeals remanding the cause for a new trial.

Opinion delivered April 24, 1957.

Second Motion for rehearing overruled May 29, 1957.