I am unable to agree with the foregoing opinion of Judge Moore.
The sole question for consideration is the construction of a deed that is not am*609biguous. I have no fault to find with the authorities cited in the opinion of the Majority but they have no application to the facts of this case.
It is my opinion that the rules for the construction of an unambiguous deed are set out in an opinion of the Supreme Court by Judge Speer in the case of Reynolds v. McMan Oil & Gas Co., 11 S.W.2d 778, 781, as follows:
“First, of course, in construing a deed, like any other contract, the intention of the parties is of primary and controlling importance. Where the contract is unambiguous, this intention must be determined from the instrument itself, considering all its parts in their proper bearing. If the terms of the instrument give it a definite legal effect, the inquiry is concluded, and no intention, however discovered, can contradict or destroy the legal effect of the terms used. If the instrument as written does not really represent the contract as made, there may be a right in equity to relief by way of cancellation or reformation, but this dees not pertain to construction, and the principle has no place in the present inquiry, for all parties are standing on the contract as written.
“In determining the legal effect of a deed, whether as to grant, exception, reservation, consideration, or other feature, the inquiry is not to be determined alone from a single word, clause, or part but from every word, clause, and part that is pertinent. The relative positions of the different parts of the instrument are not necessarily controlling; the modern and sounder reason being to ignore the technical distinctions between the various parts of the deed, and to seek the grantor’s intention from them all without undue preference to any, for the plain intention of the grantor as disclosed by the deed as a whole controls the construction. These rules are elementary.
⅜ ⅝ ⅜ ⅜ ⅜ jji
“ * * * A part excepted is not granted. A part or estate not granted necessarily remains with the grantor. Associated Oil Co. v. Hart (Tex.Com.App.) 277 S.W. 1043.”
When we apply these rules of construction to the deed under consideration, we find the instrument is a deed of conveyance of the fee title to 88.3 acres of land of the B. de O’Sinea Survey described in three tracts. The field note description describes 92.5 acres. Following the field note description is the following exception:
“ * * * from which is excepted 4.178 acres conveyed to the State of Texas, for right of way for Highway #19, leaving 88.3 acres of land.”
Giving effect to this exception, it is without dispute that the deed only conveys 88.3 acres of the fee title to the land, and the fee title to the exception is not granted by the deed but remains in the grantor.
When you go to the deeds to the State above referred to, you find a field note description of the 4.178 acres retained by the exception. The fact that these deeds to the State retain in the grantor the mineral estate which was not conveyed to the State does not render the exception anything less than a fee title to the 4.178 acres of land excepted. The fee title to the exception was never a part of the land granted but remained in the grantor. The fact that the exception refers to the 4.178 acres having been conveyed to the State when only the surface had been conveyed to the State does not invalidate the exception.
In the case of Pich v. Lankford et al, 157 Tex. 335, 302 S.W.2d 645, 649, Judge Calvert cites with approval from Corpus Juris Secundum (26 C.J.S. Deeds § 139, p. 1008), as follows:
“ ‘Further, when certain tracts excepted are specifically described, and it is further recited that they have been previously sold or conveyed, the exception will be good, although the recital is false *610since it may be rejected, or although the prior conveyance did not effectuate a transfer of the property described therein, or even though the property previously conveyed reverts to the grantor by reason of the grantee in the prior conveyance ceasing to use it for the purpose prescribed in the deed.’ ”
These authorities, it would seem, fully support the trial court’s finding that there was a valid exception in the deed from Davis to Melton, and for this reason, it is my opinion that the judgment of the trial court should be affirmed.