This case involves the construction of a mineral deed executed by Severa Vda B. de Mangell (sometimes referred to in the briefs and record as Severa S. de Mangell and Severa Mangell) and husband, P. E. Mangell, dated December 11, 1930. A printed form was used for the conveyance and certain blanks were filled in by handwriting. We set forth here the granting clause and the disputed description. The handwritten parts thereof are indicated by italics:
This suit originated in a bill of interpleader filed by plaintiff Baldridge & King, Inc. The property described in the bill was as follows:
The appellees are the successors in interest of the grantees in the mineral deed of December 11, 1930. They claim an undivided one-half interest in and to the minerals in Share No. 7. The appellants Brijido Ramirez and others are contesting claimants to this interest. Baldridge & King, Inc., and its successor in interest, Chicago Corporation, deposited certain monies into court which resulted from royalties accruing under an oil, gas and mineral lease covering the property. This money, with the exception of a fee allotted to the attorneys for Baldridge & King and Chicago Corporation, was awarded to appellees.
There are three theories of construction suggested by the parties, viz.:
1. The deed operated to convey a full one-half undivided interest in and to the 328 acres of Share No. 7. (This theory was adopted by the court in its reformed judgment, from which this appeal was perfected.)
2. The deed operated to convey an undivided 145.0833 acre interest in the 328 acres contained in said Share No. 7, being the interest owned by the grantor, Severa Mangell at the date of the mineral deed on December 11, 1930. (This theory was adopted by the trial court as the basis for the "first judgment" rendered by it, which was thereafter reformed upon motion of appellees so as to award to them a full ½ undivided interest in Share No. 7.)
3. The deed operated to convey only a half interest in and to an undivided 97.89 acre interest in the 328 acres contained in Share No. 7.
We are of the opinion that the second theory of construction above set forth is the correct one and that judgment should be rendered accordingly. The description contained in the deed, together with the references therein embodied, constitutes a sufficient basis for identifying a definite interest in land and the instrument is hence operative as a conveyance and the interest conveyed consisted of all the right, title and interest held by Severa Mangell.
It is argued by appellants, with plausibility, that the first tract of the description (containing 217.11 acres) is positively identified by reference to a former deed of conveyance, and this tract, wherever it may be situated, is not shown to be a part of Share No. 7 of the 1924 partition, and that the second tract, with its definite fractional acre description, must be construed as conveying an undivided 97.89 acres interest out of Partition Share No. 7 awarded to Severa Mangell in Cause No. 242. However, the description contains more than a mere reference to 97.89 acres out of said share. The tract is described as having been inherited from Maria Rita Benavides and as having been set aside to Severa Mangell in the 1924
In our opinion, resort to the proceedings in Cause No. 242, as well as to the title papers of the lands relating to the share involved, is justified in order to determine the interest Severa Mangell owned in the share at the time of the conveyance, so as to ascertain the property included within the description of the deed. We think the handwritten portion of the description supports this course by its reference to lands "set aside to grantor (Severa Mangell) by decree of Court May 31-1924; Cause No. 242 * * *," as well as by the statement contained in the printed portion of the deed, that "this conveyance is to cover all lands now owned by the grantors in the above stipulated surveys, whether herein properly described or not; * * *." In the deed before us an attempt was made to describe some interest in 328 acres of land in Share No. 7 of a partition of certain lands in the Encantada Grant. It is not contended that some other and different specific tract was included in the description, as was the case in Thomas v. Texas Osage Co-Operative Royalty Pool, Tex.Civ.App., 248 S.W.2d 201.
It appears that Maria Rita Benavides (who was mentioned in the mineral conveyance presently involved) owned 1333 1/3 acres of land in the Encantada Grant. She died intestate, leaving four children who inherited approximately 333 1/3 acres each. One of the children, Luis Guzman Benavides, sold his 333 1/3 acres, but his brother Simon died and from him he inherited 111.11 acres. Jesus Guzman Benavides (brother of Luis) executed two conveyances of lands out of the grant, one for 283 1/3 acres and one for 49 acres. This reduced his holdings from 444.44 acres (333.33 from his mother and 111.11 from his brother Simon) to 112.11 acres. However, in a decree entered in 1917, the parties thereto partitioned more property among themselves than they owned, with the result that Luis Guzman Benavides was purportedly awarded 427.57 acres, and Jesus Guzman Benavides, 217.11 acres.
By deed dated October 5, 1917 (mentioned in the mineral deed here involved), Jesus Guzman Benavides sought to convey to his brother Luis Guzman Benavides the 217.11 acres which was set aside to him in the 1917 partition. This conveyance was excessive to the extent of 105 acres.
Luis Guzman Benavides died intestate in 1918, leaving his wife, Severa, and three children, Samuel, Meliton and Alonzo. Sometime thereafter Severa married P. E. Mangell. She was a party to Cause No. 242, the 1924 partition wherein Share No. 7 was set aside to her "as Community Administratrix of the Estate of Luis Guzman Benavides, and as next friend of Samuel, Meliton and Alonzo Guzman, her minor children."
The judgment in said Cause No. 242 was rendered in pursuance of an agreement by the interested parties. From her pleading in the case, it appears that Severa Mangell, as surviving wife in community of the estate of Luis Guzman Benavides and as next friend of her minor children, Samuel Guzman, Meliton Guzman and Alonzo Guzman, asserted a claim in and to two separate tracts in the Encantada Grant, viz.: 217.11 acres, described by metes and bounds, which is the same tract as that conveyed to Luis Guzman Benavides by his brother Jesus Guzman Benavides in 1917, and 472.57 acres likewise described by metes and bounds, being the Luis Guzman Benavides tract in the 1917 partition. This 1917 partition decree was referred to in her pleadings as the basis
The agreement for partition duly approved by the attorneys for Severa Mangell provided that:
The final decree sets forth the description of Share No. 7, and awards same to Severa Mangell "as Community Administratrix of the Estate of Luis Guzman Benavides, Deceased, and as next friend of Samuel, Meliton and Alonzo Guzman, her minor children." The decree also provides that "all the right, title and interest in and to the land contained in said Share No. 7, is hereby divested from all other parties plaintiff and defendant to this suit, and is hereby vested in severalty in said Severa S. de Mangell, * * *."
When the decree in Cause No. 242 is considered together with the supporting agreement and pleading, the view is strengthened that it was the intention of Severa Mangell to convey the interest set aside to her "by decree of Court May 31-1924—Cause No. 242 Scott et al vs. Ramirez et al * * * out of the Encantada grant * * * (being) all lands now owned by the grantors (Severa Mangell) in the above stipulated surveys (the Encantada Grant)." She evidently believed that this interest was an undivided one-half interest in 315 acres. However, the actual interest of Severa Mangell in said Share No. 7 did not amount to one-half of the acreage in the share, nor to one-half of 315 acres, for that matter.
The 1924 decree did not purport to partition the lands within Share No. 7 among Severa Mangell and her children. The lands making up the share had three sources of title, namely, 111 acres which had been the separate property of Luis Guzman Benavides (inherited from his brother Simon) which went to his children, subject to Severa Mangell's life estate in one-third thereof, Article 2572, Vernon's Ann.Tex.Stats.; 112 acres, being the actual interest acquired by the purchase from Jesus Guzman Benavides, which was community property and of which one-half belonged to Severa, and 105 acres, acquired by adverse possession, evidently under the deed from Jesus Guzman Benavides. In our opinion this 105 acres was owned one-half by Severa and one-half by her children. The matter will be discussed further in this opinion.
Disregarding the life estate for the moment, it appears that at the time of the partition decree, Severa owned 108.50 acres undivided, and that her children owned the remaining 219.50 acres. In May of 1930, Alonzo Guzman died and from him his mother received one-half of his interest, Article 2570, subd. 2, Vernon's Ann.Tex.Stats., or one-sixth of 219.50 acres, amounting to 36.5833 acres, which added to the 108.50 acres then held by her brought her interest to 145.0833 acres. (We are here again assuming that Share No. 7 contains 328 acres, as called for in the partition decree. We have taken the acre interests mentioned: 111 acres, Luis Guzman Benavides; 112 acres, Jesus Guzman Benavides, and 105 acres, adverse possession, from appellants' brief, as these acreages were apparently the basic figures taken by the trial judge in computing the fractional interests awarded by the first judgment rendered in the case and seem to have been accepted by all parties.)
Under the first judgment rendered below, Flag Oil Corporation of Delaware, R. L. House and Texas Osage Co-operative Royalty Pool, Inc., were awarded the title to 145.0833/328 of all oil, gas or other minerals underlying Share No. 7, as well as an estate for life in the mineral estate to terminate upon the death of Severa Mangell, in
What has been said disposes of most of the contentions raised by the briefs. There was no error in the award of fees for the attorneys of the original plaintiff and the intervener (Baldridge & King, Inc. and Chicago Corporation). Appellants' third point is multifarious in form and also deemed without merit.
For the error pointed out, the judgment appealed from will be reversed and judgment rendered by this Court in accordance with the first judgment entered by the court below.
Reversed and rendered.