Krum v. Alford

OPINION ON MOTION FOR REHEARING

BISSETT, Justice.

James Alford, et al., appellees, have filed a motion for rehearing in this case, wherein *468they contend that this Court erred in “refusing to give controlling effect to the granting clause” in the Koncaba-Mang deed. They argue that the deed presents an “irreconcilable conflict” between the granting clause and the third paragraph, and that this Court erred in giving effect to the third paragraph because the deed is ambiguous. They further say that this Court erred in holding that an additional interest in the minerals passed to the grantee under the third paragraph of the deed since this paragraph”did not contain any words of conveyance, and “purported to deal only with an interest in future lease payments and not in any interest in the minerals in place.”

The deed is not ambiguous. There is no repugnance between the granting clause and the third paragraph of the deed.

The third paragraph, in pertinent part, provides:

“... and in the event that the above described lease for any reason becomes cancelled or forfeited, then and in that event, the lease interests and all future rentals on said land, for oil, gas and mineral privileges shall be owned jointly by Walter A. Mang of Gonzales, Texas and Frank Roncaba and wife, Josefa Roncaba each owning a one-half interest in all oil, gas and other minerals in and upon said land, together with one-half interest in all future rents.” (Emphasis supplied).

It is established law in this State that a grantor may convey to the grantee, in a single instrument, two separate and distinct estates in the involved land, one being designated in the granting clause and the other being designated in another clause. Gibbs v. Barkley, 242 S.W. 462 (Comm’n App.1922, opinion adopted); Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563 (1945).

In Gibbs v. Barkley, supra, it was held that the intention of the grantor is not to be determined from an isolated clause or paragraph in the deed, but is to be determined from a fair construction of the entire deed. Each clause or paragraph in the deed must be construed with reference to every other paragraph therein contained. The court further held that the granting clause in the deed under consideration must be construed with reference to and in connection with the habendum clause in order to arrive at the intention of the grantor. While we are not here concerned with the language contained in the habendum clause, the same rule applies in this case; that is, the third clause and the granting clause should be considered together in determining the intention of the Roncabas.

In Richardson v. Hart, supra, the granting clause in the deed stated that an undivided ½6⅛ mineral interest in the land was conveyed to the grantee, and further stated (in the third paragraph) that the conveyance was made subject to the terms of an existing oil and gas lease, but that it covered and included a ¾6⅛ of ⅛⅛ of the royalty to be paid under the terms of the lease. The Supreme Court, in construing the deed, held:

“It is clear, we think, that the instrument conveyed two separate and distinct estates in the land. The first was a permanent interest in the minerals in place which was to subsist during and beyond the life of the existing lease. The other was the royalty to be due and payable under the lease.”
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“... In the third paragraph of the deed they made a covenant in regard thereto which passed to the grantee the second estate above mentioned.... ”

At the time the Roncaba-Mang deed was executed, the land was under an existing oil and gas lease to Cranfill-Reynolds, lessee. That lease had terminated prior to the trial in this case. All that the Roncabas owned in the minerals in and under the land on the date that the deed was signed were the royalties reserved in the lease and a possibility of reverter after the determinable fee owned by Cranfill-Reynolds. Such possibility of reverter, or any part thereof, was assignable. Caruthers v. Leonard, 254 S.W. 779, 782 (Comm’n App., 1923); Watts v. *469City of Houston, 196 S.W.2d 553, 556 (Tex.Civ.App.—Galveston 1946, writ ref’d).

It is clear, we think, that the deed in question, when considered in its entirety, showed an intention by the grantors to convey to the grantee a present undivided ½6⅛ interest in the minerals, subject, however to the terms of the then existing oil and gas lease, and an undivided interest in the possibility of reverter sufficient to convey to the grantee an undivided ½ interest in the minerals. The interest in the possibility of reverter was vested in the grantee upon the execution of the deed by the Roncabas; the enjoyment of that interest was postponed until the termination of the determinable fee owned by Cranfill-Reynolds, the lessee in the oil and gas lease in existence when the deed was signed.

Under the provisions of the deed, formal words of conveyance were not required in order to convey the interest in the possibility of reverter to the grantee. In the third paragraph of the deed, the grantors “made a covenant in regard thereto which passed to the grantee” the stated interest in the possibility of reverter. See Richardson v. Hart, supra, 143 Tex. at page 396, 185 S.W.2d at page 565. The third paragraph of the deed did not purport to deal “only with an interest in future lease payments,” as asserted by appellees in their motion for rehearing.

We have again reviewed the record and are convinced that we were correct in the decision which we have made in this case. The motion for rehearing is overruled.

In our original judgment, we, through inadvertence, taxed all costs of this appeal to the appellant. A motion has been filed by the appellants, wherein they ask this Court to modify the judgment by taxing all such costs to the appellees. The only real issue between the parties in the trial court and in this Court was the construction of the mineral deed from the Roncabas to Mang, and since the appellants have prevailed in this appeal, the motion is granted. All costs of this appeal are taxed to the appellees.