In the trial court plaintiff Hart was awarded a judgment for title to a 1/128th of all the oil, gas and other minerals in and under and produced from the land. That judgment was affirmed without reformation by the Court of Civil Appeals, 183 S.W.2d 235, and Mrs. Richardson has brought error to the Supreme Court. The case was submitted to the Court sitting with the Commission of Appeals and an opinion written by Mr. Judge Folley, of the Commission, was adopted as the opinion of the Court.
As in our case, the trial court sustained the grantee's contentions and reformed the instrument accordingly. The Civil Court of Appeals of Texas affirmed, 183 S.W.2d 235. The Supreme Court of that State however reversed, stating "the judgment of the trial court fails to subject the interest decreed to Hart to the terms of the existing lease and thereby limit the royalty interest in the oil produced to a 1/128th of the 1/8th royalty paid under the lease * * * or 1/1024th of all the oil or other minerals produced under the lease." The Court was of the opinion that the phrase "1/16th of 1/8th of all of the oil royalty" could reasonably have but one meaning, and that is 1/128th of all the royalty paid under the lease.
We construe the deed to except and reserve to the grantor, his heirs and assigns the perpetual 1/2 of the 1/8th royalty of oil and gas, or a perpetual 1/16th of all the oil and gas produced, saved and marketed from said land under the terms of any lease * * *" The case of Richardson v. Hart, 1945, 143 Tex. 392, 185 S.W.2d 563, 564, involved a mineral deed and interest conveyed was described as 1/16th of 1/8th subject to a lease and the Court held that such a deed conveyed 1/16th of 1/8th or 1/28th and the Texas Court in reversing the Court of Civil Appeals, 183 S.W.2d 235, said: "It is our opinion that the deed is not ambiguous and in the absence of such ambiguity the rule of construction announced by the Court of Civil Appeals is not applicable.