explaining that the language quoted from the deed did not reserve the interest in the minerals; “it only excepted it -from the grant. However, since the interest did not pass to the grantee and was not outstanding in another the legal effect of the language excepting it from the grant was to leave it in the grantor”
How later courts described this case
- explaining that the language quoted from the deed did not reserve the interest in the minerals; “it only excepted it -from the grant. However, since the interest did not pass to the grantee and was not outstanding in another the legal effect of the language excepting it from the grant was to leave it in the grantor”
- stating that, although “[t]he words ‘exception’ and ‘reservation’ are not strictly synonymous, [ ] they are often used interchangeably”
- recognizing default rule that a reserved royalty interest “would be carved proportionately from the two mineral ownerships”
- determining the former types of cases were not controlling when a grantor fails to convey part of the estate he owns through an exception
Written by the judges who cited it.
The opinion
Mr. Justice Garwood,
dissenting.
In that portion of the judgment and opinion of the Court of Civil Appeals in the Klein case, 67 S.W. 2d 911, 913-917 , which was expressly affirmed and approved by this Court, 126 Texas 450 , 86 S.W. 2d 1077 , the former Court held a purported except tion of “1/8 of all mineral rights” in a deed from one Klein to one Baker to be, not truly an exception, but merely a reference back to a reservation of “one-eighth (1/8) of all mineral rights” made by a prior grantor (Stein), the “exception” being made (according to the Court) only for the purpose of limiting the granting clause used by Klein, which otherwise covered the full title to the premises, and thus avoiding Klein becoming liable on a warranty of the full title. The Court reasoned, ■ with' our approval, that if the “exception” were construed to hold out any interest other than that already reserved *344 by the prior grantor (Stein), Klein’s grant to Baker would purport to convey to Baker more than Baker actually got. So the Court proceeded, with our approval, to construe Klein’s purported “exception” as referring only to the earlier reservation.
To the instant case, according to our holding, the grantor Howard, who corresponds to Klein, will have purported to convey with warranty that which he did not have, to wit, a free and clear 1/4 of the minerals. Any 1/4 “mineral interest” purportedly conveyed was subject to the reserved royalty, so was not free and clear. A 14 mineral estate subject to an outstanding royalty interest is worth less to the owner than it would be if not so burdened. So the grantor, Howard, will have breached his warranty, if we hold that the “exception” was an exception of something other than the royalty previously reserved.
In support of its holding, the Court in the Klein case reasoned further that the use by the grantor, Klein, of the very word “excepted,” as distinguished from “reserved,” tended to show that the “exception” might well be for the purpose which the Court held him to have had in mind, and in this connection it used the very words now quoted in the instant case as apparently conducing to a contrary view. In the Klein case, incidentally, the grantor, Klein, at the time he executed the deed, owned all interests in the land except the 1/8 outstanding interest reserved by his grantor (Stein) even as Howard did in the instant case at the time of his conveyance to Sharp.
The Court in the Klein case also made reference to all the language of the “exception” in the Klein deed and the language in the previous Stein reservation.
It is also of interest to note that the Supreme Court, in dealing with the other question in the Klein case, that is, the controversy between Baker as mineral lessor and Humble as assignee of the lease, held that, under the circumstances, the Stein reservation above mentioned was actually a royalty despite its language “one-eighth (1/8) of all mineral rights in and under” the land.
As I see it, we cannot charge off the Klein case by saying that in the instant case, the “exception” was clearly one of a % “mineral interest” in the technical sense of that term and that, such an interest being a different kind of estate from the *345 royalty estate outstanding, the “exception” could not possibly be taken to refer to the outstanding royalty. The theory of the Klein holding is that the whole Klein deed, as well as other things, might be looked to in order to determine what the “exception” meant. And I think that same theory may be extended to an enquiry in the instant case as to whether the words, “SAVE AND EXCEPT an undivided three-fourts of the oil, gas and other minerals in, on and under said land, which have been heretofore reserved,” are necessarily to be construed, under the particular circumstances, as a mineral interest in the sense that excludes a royalty interest.
Obviously a royalty is, in a perfectly normal and legitimate sense, a mineral interest, and not only that, but an interest in minerals in place. It may be created in advance of a lease and even be the subject of ad valorem taxes as real estate before the owner of it receives any proceeds from it. The fraction in which it is expressed may be, and often is, considered" as that particular fraction of the minerals, although the latter may be still “in place.” Indeed, in the instant case, one of the reserved royalties is expressed both in terms of “royalty” and in terms of the same fraction “of all minerals.”
The fact that there is a well recognized and important difference between the character of the two estate, and that, in the same instrument, a grantor may validly convey one fraction of the mineral estate and reserve or except a different fraction as royalty, does not, of course, require that language, such as in the Howard “exception” clause, shall necessarily and always mean something other than a royalty. None of the cases cited in the main opinion, as I read them, so hold. As above pointed out, we actually held in the Klein case that, under the circumstances of that case, words, such as we now hold to mean a “mineral interest” beyond possibility of a different construction, actually meant a royalty interest.
Under the circumstances of this case, it seems to me that we may also properly consider the recital in the Howard deed “which have been heretofore reserved.” The Court will, I’m sur, concede that the recital is not false, unless we assume that the preceding words, “three-fourths of the oil, gas and other minerals in, on and under,” necessarily exclude a reserved royalty interest, considering the deed as a whole. Roberts v. Robertson, 53 Vt. 690 , and the other decisions cited in connection with the matter of false recitals, are relevant only on that assumption, which I do not think we should indulge. If the pre *346 ceding language is at all subject to construction, as I think it is in the light of the Klein case, the reference, “heretofore reserved,” can be properly considered.
On the whole, the Klein case appears to me to be controlling and to require a different result than we have reached.
Opinion delivered May 15, 1957.
Rehearing overruled June 19, 1957.