#### CASE-POMEROY OIL CORPORATION et al., Appellants, v. PURE OIL COMPANY et al., Appellees.

No. 3271.

Court of Civil Appeals of Texas. Waco.

May 26, 1955.

Rehearing Denied June 16, 1955.

*887Garrett & Garrett, Fort Worth, for appellants.

Robertson, Jackson, Payne, Lancaster & Walker, Dallas, Vinson, Elkins, Weems & Searls, Houston, Wynne & Wynne, Wills Point, for appellees.

McDONALD, Chief Justice.

This is a suit involving disputed ownership of certain oil and gas royalty interests in- the John Walling Survey in, Van, Zandt County. Parties will be referred to as in the Trial Court. It. was stipulated that plaintiffs claim their royalty interest, under a chain of title' which had its origin in the deed from Mrs. Ella York et al. to J. P. Johnson, dated *17*July 1929, as corrected by a deed dated 24 August 1929. This -deed granted, *"for a period of 20 years"*onerhalf of the oil, gas and other minerals under *2*tracts of land. What, is designated therein as tha- “2nd tract”, containing 50 acres, ihore.or- less is. the tract involved in this case. -Both the deed and the correction deed were filed for record- in Van Zandt County in 1929. - ■ ,

It was likewise stipulated that a certain Consolidation Agreement of May 1931 is in the chain of title of plaintiffs. This Agreement was ,of record in Van Zandt County at the time each plaintiff purchased his royalty interest. ,

Defendants filed motion for summary judgnfent bn the ground that there was no genuine issue as to any material fact, arid that the unqualified’ and absolute refusal of the Supreme Court to grant the application for writ of error in Kokernot *v.*Caldwell, Tex.Civ.App., 231 S.W.2d 528, was stare decisis of the legal construction of the York-Johnson deed and of the Consolidation Agreement.of 1931. In support of motion for summary judgment defendants filed an affidavit' which set out that plaintiffs’ claims in this case are dependent upon the legal construction’ of the York-Johnson deed and the Consolidation Agreement of 1931 and that these two instruments are the identical instruments construed by the Dallas Court of Civil Appeals in the case of Kokernot v. Caldwell, 231 S.W.2d 528, and in which the Supreme Court refused outright application for writ of error. It "further points out that the construction given these identical *two*instruments in the Kokernot v. Caldwell case, supra, is adverse to recovery by plaintiffs in this case.

The facts stated in defendants’ affidavit were not controverted.'

.The trial court granted defendants’,motion for summary judgment and entered judgment in favor of defendants, and plain-jiffs, appeal, contending: 1) The trial'court erred 1⁄8 holding -that the case of Kokernot v. Caldwell, supra, in which plaintiffs were not parties, controlled plaintiffs’ case under the doctrine of stare decisis. 2) That since plaintiffs acquired their royalty interest long before the decision in the Kokernot *888case, they could not- be bound thereby. 3) That the Kokernot case was- not correctly decided and should not be followed: 4) That - defendants are estopped to deny the royalty interests acquired by plaintiffs as bona fide purchasers relying- ■ on ■ the Consolidátion Agreement of 1931.

This case involves the legal construction of'two instruments: 1) The York-Johnson deed, supra, wherein Mrs. York granted Johnson *"for a period of 20 years”*an undivided 1⁄2 interest in the oil, gas and other minerals under, a 50 acre tract in Van Zandt County, and 2) a Consolidation Agreement executed in May 1931 wherein the royalty owners,pnder this 50 acre tract and .the royalty owners under an adjoining 4.2 acres -of land agreed with the Pure Oil Company, the owners of leases covering both tracts,, that .the two .tracts should be combined .for .development purposes into a pingle 54.2 acres.

These two instruments are the *identical*instruments construed in Kokernot v. Caldwell, 231 S.W.2d. 528, by the Dallas Court of Civil Appeals, with writ of error refused by the Supreme Court, and wher’qin it was held that the .royalty rights- of. Kokernot acquired under the same YorlcTjohnson deed terminated on 17 July 1949, and that the agreement made in 1931 for the consolidation of the 50 acre tract and "the 4.2 acre" tract for developfnent purposes had no effect on thé termination of tliis royalty interest. Plaintiffs herein likewise acquired their royalty rights, under'the same deed from'Mrs. York'to J. P. Johnson, and their predecessor in title, Premier Investment Company, .was, likewise a party to the Consolidation Agreement.

It is our view that the case of Kokernot v. Caldwell, Tex.Civ.App., 231 S.W.2d 528 (writ of error "refused)' is stare decisis of all-issues-of law involved in this case, and that the trial "court properly granted’the motion for summary judgriient filed by defendants.'

• In the Kokernot case, supra, the court held as a result of- the legal construction placed-on the York-Johnson deed and the Consolidation Agreement of 1931, that Kokernot’s royalty interest terminated on 17 July 1949. The royalty interest contended for herein by plaintiffs, being acquired through the same .chain of title,, must be bound by. the same, legal construction given, the, same instruments in the-. Kokernot case, .supra.

The unqualified refusal .by the Supreme Court to grant the application for-writ of error in the.Kokernot case was an. approval by that court of the legal construction of the York-Johnspn deed and the-Consolidation Agreement, and under the-well settled principles of the'rule of stare-decisis,, this court must adopt the same construction of these instruments which was adopted by the Supreme Court.

The general rule is stated, in 26-Texas Jurisprudence, 46-48:

> “The doctrine of stare' decisis—un-der which the détermination o'f a question of -law by- a court of ultimate resort becomes" a part’of the law of the-state and a precedent governing the-decision of subsequent matters involving the same point—differs consider.-ably from.the doctrine of. res judicata. The rule of stare decisis has reference only to questions of law; it involves hó element-"of estoppel, and' it operates upon' all persons, and merely" the parties "to the particular-proceeding and their privies. Thus, when the Supreme Court or a Court of Civil Appeals—if the Supreme-Court has denied an application for a. writ of error—has once given a definite-'effect to a specific writing or a’ --particular 'fact situation—as when it determines the true construction of a will or the validity of a deed * * ** such determination is binding and con-'elusive 'in all subsequent suits involv-iñg the*•same' *subject matter, whether the parties''and the. property are the--same, 'or*not." This -result is reached by virtue of the doctrine of stare decisis. *• * - *»

*889The foregoing rule has been applied in numerous cases. One of the leading case's is' Benavides v. Garcia, Tex.Civ.App., 283 S.W. 611, 613, which was affirmed by the Commission of Appeals in 290 S.W. 739, 740. That-case, involved the construction of a will and contract which had -already been construed in another case in which the Supreme Court had refused a writ of error. The Court of Civil Appeals stated:

> “When in one case the highest court of the state has determined-á specific issue, or given a particular effect to a specific instrument in writing or státe of facts, such determination is conclusive upon the identical matters in subsequent litigation involving such'matters, even though it is presented by different parties and concerns different properties.”

Other authorities holding that where a specific deed or contract has been construed by the Supreme Court in'a'particular way, that the construction, is binding in other cases in which the samé identical deed or contract be involved, are: Porter v. State, Tex.Civ.App., 15 S.W.2d 191; Ingram v. Fred, Tex.Civ.App., 243 S.W. 598 (dis. W.O.J.); Hennegan v. Nona Mills Co., Tex.Civ.App., 195 S.W. 664 (Er. Ref.); McDonald v. Humble Oil & Ref. Co., Tex.Civ.App., 78 S.W.2d 1068 (Er. Dis.); Horne v. Moody, Tex.Civ.App., 146 S.W.2d 505.(Er. Dis. Judg. Correct) ; Cockrell v. Work, Tex.Civ.App., 94 S.W.2d. 784 (Er. Dis.) Bond v. Kirby Lbr. Co., Tex.Civ.App., 47 S.W.2d 891 (Er. Dis.).

The construction of the selfsame identical instruments which determine plaintiffs’ rights herein was passed upon by the Dallas Court of Civil Appeals in the Kokernot case, supra. The Supreme Court refused a writ of error. That construction was adverse to plaintiffs -herein, and this court is bound thereby.

Plaintiffs’ contentions that they'acquired their interest long before the decision in the Kokernot case, supra, and that they relied on the wording of the'York-Johnson deed and of the Consolidation Agreement to mean something different from the construction later given these instruments by the court, avails plaintiffs nothing. The proper construction of these two instruments are questions of law and those questions of law -have 'been decided by the Supreme Court of this State. Under its decision, plaintiffs were not justified in believing from the wording that they were purchasing a royalty interest which would continue after 17 July 1949. It is a well established principle of realty lavr that a purchaser, is charged with notice of the existence, contents, and legal effect of.all instruments in or-connected with his. chain of title. See 43B Tex.Jur. 35-38; Matthews v. Rains County, Tex.Civ.App., 206 S.W.2d 852, (Er. Ref.); Abercrombie v. Bright, Tex.Civ.App., 271 S.W.2d 734 (Er. Ref. N.R.E.).

In.,t-he case , at. bar the fa.cts show tha.t plaintiffs.-mape no, attempt to examine the chain of title to. the royalty interests they were purchasing. Instead they merely examined a table of royalty ownerships appended to the Consolidation Agreement, which on its face purported to do nothing more than to give each' royalty owner in the 50 acre tract and the 4.2 acre tract a royalty interest in the 54.2 acre tract in proportion to the interests *“now held”*by each in the tracts so consolidated fOr'de-velopment purposes. Plaintiffs’ interest “now held” terminated in 20 years, ór oh 17 July" 1949, so plaintiffs’ interest in the consolidated tract likewise so terminated.

Plaintiffs contend that the Kokernot case was incorrectly decided. We think otherwise, but in any event ' the construction placed therein on the York-Johnson deed, and on the Consolidation Agreement is binding on this court.

Fr&'m what has been said, it follows that all of plaintiffs’ points are- overruled, and the judgment of the trial'court is affirmed.