Barker v. Levy

507 S.W.2d 613 (1974)

Facts

Litigation over land resulted in a judgment that Margaret Cade Sweet and her sister, Katherine Cade Holt, each owned an undivided 3/10 interest in the Cade lands. These two sisters were represented by a Galveston lawyer, D. D continued to represent Mrs. Sweet with reference to matters concerning her ownership in the Cade lands. In early 1930 Mrs. Sweet was in the process of getting a divorce in New York where she lived. D prepared instruments relating to Mrs. Sweet's ownership in the Cade lands to be used in that divorce proceeding. On May 1, 1930, D wrote to Mrs. Sweet suggesting that she put the title to her interest in the Cade lands into a Texas corporation of which she would own all of the shares. It was suggested that D be made an officer of that corporation with authority to execute instruments relating to the use and disposition of the Cade lands. This would facilitate his handling of her interest in the Cade lands while she was traveling abroad, which she apparently expressed to be her intention. Before the May 1, 1930, letter Mrs. Sweet had paid D cash fees for his representation of her interests. D proposed that he be given an interest in the minerals of the lands as a fee for his future representation of her interest. D asked for a nominal interest in the minerals of 1/160th. D would get no interest in the real estate. Mrs. Sweet approved the arrangement. D prepared a deed dated July 21, 1930. Mrs. Sweet signed the deed. The deed assigned D a One/one hundred and sixtieth (1/160th) part of all oil, gas, petroleum, sulfur, and all other minerals that may be produced and saved from the following described lands … It is intended by this instrument to convey unto the said D a 1/160th part of all the oil, gas, sulfur, and other minerals that may be produced and saved from all lands in the State of Texas, the title to which is now owned in whole or in part by me, as well as such lands in the State of Texas which I have heretofore sold but in which I have retained an interest in the minerals. Mrs. Sweet died intestate. Mrs. Katherine Cade Holt, her only heir, inherited her shares of stock in Long Island Petroleum Company. In 1947 that corporation was dissolved, and its ownership of Mrs. Sweet's former interest in the Cade lands was conveyed to Katherine Holt Barker and Melanie Holt Speer, Mrs. Holt's daughters and only children. In 1951 Mrs. Barker conveyed a part of her interest to The First National Bank of Fort Worth as trustee for her children. Mrs. Sweet died intestate. Mrs. Katherine Cade Holt, her only heir, inherited her shares of stock in Long Island Petroleum Company. In 1947 that corporation was dissolved, and its ownership of Mrs. Sweet's former interest in the Cade lands was conveyed to Katherine Holt Barker and Melanie Holt Speer, Mrs. Holt's daughters and only children. In 1951 Mrs. Barker conveyed a part of her interest to The First National Bank of Fort Worth as trustee for her children. In 1970 Mrs. Holt died. On January 15, 1971, Mrs. Barker, Mrs. Speer, and the trustee bank (Ps) filed this suit. The trial judge withdrew the case from the jury and rendered judgment for D. Ps appealed. D claims a royalty interest was conveyed and Ps claim that it was a mineral interest.