=20
For=20 The
RUTH =
McLEAN BOWERS,=20
MARRS McLEAN BOWMAN, BONNIE BOWMAN KORBELL, RUTH BOWMAN RUSSELL, =
BETH=20
BOWMAN HARPER, MARGARET BOWMAN McMAHON, and BARBARA BOWMAN,=20
Appellants BETTY =
SPEER TAYLOR,=20
ROBERT C. BARKER, JR., CHARLES H. BARKER, DAVID T. SPEER, T. C. =
CRAIGHEAD=20
& CO., and BANK OF AMERICA, N.A., AS TRUSTEE FOR THE KATHERINE =
C. HOLT=20
TRUSTS f/b/o ROBERT C. BARKER, JR., CHARLES H. BARKER, BETTY SPEER =
TAYLOR,=20
DAVID T. SPEER, MELANIE S. WIGGINS, and MARGARET S. CARTER,=20
Appellees
On =
Appeal from the=20
212th District Court Galveston County,=20
Texas Trial =
Court Cause=20
No. 03CV1649
Appellants, Ruth McLean Bowers, =
Marrs=20
McLean Bowman, Bonnie Bowman Korbell, Ruth Bowman Russell, Beth =
Bowman=20
Harper, Margaret Bowman McMahon, and Barbara Bowman (collectively =
Bowers),=20
appeal from the trial court's declaratory judgment that they do =
not own a=20
one-third interest in a mineral estate that is also claimed by =
appellees,=20
Betty Speer Taylor, Robert C. Barker, Jr., Charles H. Barker, =
David T.=20
Speer, T.C. Craighead & Co., and Bank of America, N.A., as =
trustee for=20
the Katherine C. Holt Trusts f/b/o Robert C. Barker, Jr., Charles =
H.=20
Barker, Betty Speer Taylor, David T. Speer, Melanie S. Wiggins, =
and=20
Margaret S. Carter (collectively Taylor). Bowers also appeals the =
trial=20
court's award in favor of Taylor for $53,699.50 in attorney's fees =
under=20
the Declaratory Judgments Act. See Tex. Civ. Prac. & =
Rem.=20
Code Ann. =A7 37.009 (Vernon 1997). The trial court granted =
summary judgment=20
for Taylor, declaring that, under a deed for a mineral estate =
between the=20
predecessor in interest for Taylor and the predecessor in interest =
for=20
Bowers, Bowers did not receive a fee simple interest in the =
mineral=20
estate. In three=20
issues, Bowers contends (1) that the deed provision granting =
one-third of=20
the mineral estate in fee to Bowers's predecessor in interest did =
not=20
violate the rule against perpetuities; (2) that the word "forfeit" =
as used=20
in the deed and a related mineral lease included termination of =
the lease=20
for lack of production; and (3) that the trial court erred in =
awarding=20
attorney's fees because Taylor's lawsuit was not properly brought =
under=20
the Declaratory Judgment Act and because the award was not =
equitable and=20
just. We conclude the trial court erred by rendering a declaratory =
judgment that Bowers did not receive a fee simple interest in the =
mineral=20
estate because the rule against perpetuities is not violated by =
the=20
conveyance, and the term "forfeit," as used in the documents =
before us,=20
properly includes termination for lack of production. In 1919,=20
Taylor's predecessors in interest were part of a larger group that =
leased=20
its interest in a mineral estate (the "Cade B Lease") to Marrs =
McLean,=20
Bowers's predecessor in interest. The terms of the lease provided =
that the=20
lease would last "so long as such mineral or minerals can be =
produced in=20
paying quantities." The lease reserved a one-eighth royalty =
interest in=20
favor of Taylor's predecessors. In 1927,=20
Taylor's predecessors entered into a second agreement with McLean, =
conveying to him a present portion of the reserved royalty =
interest, and a=20
future one-third fee interest in the mineral estate itself. This=20
conveyance stated, But it is=20
understood that if said lease should be forfeited, then the one =
fortieth=20
(1/40) royalty interest covering all the land herein before =
described=20
shall be cancelled and in lieu thereof and in subdivision =
therefor, the=20
said Marrs McLean is to become vested with one-third (1/3) =
interest in the=20
fee title in and to the oil, gas and minerals in all portions of =
said=20
above described tracts that are now owned by the grantors herein =
in=20
severally or in undivided interest. The intent of this transfer =
being to=20
transfer to Marrs McLean one-third (1/3) interest in the minerals, =
rights=20
and royalty in the foregoing tracts of lands that is shown by the =
deed=20
records of Galveston County to belong to the grantors=20
herein. TO HAVE AND=20
TO HOLD the above described mineral and royalty interests in and =
to the=20
foregoing premises to Marrs McLean, his heirs and assigns or=20
representatives; and we bind ourselves, our heirs, assigns and =
successors=20
to warrant and defend the title to said mineral and royalty =
interest unto=20
the said Marrs McLean, his heirs, assigns and successors=20
. . . . The 1927=20
deed between Taylor's predecessors and McLean expressly references =
and=20
incorporates the 1919 Cade B Lease. Production=20
under the lease ended in 1988. In April 2002, Taylor leased her =
mineral=20
interests in tracts formerly covered by the Cade B lease to =
Northstar=20
Producing, Inc. Northstar also took a lease from Ruth McLean =
Bowers for=20
lands that were also covered by Taylor's lease to Northstar. =
Northstar=20
assigned both leases to Stroud Production, L.L.C., which produced =
oil from=20
two wells on the lands covered by the new leases. Stroud paid =
Bowers=20
royalties based the one-fortieth royalty and the one-third mineral =
fee=20
described in the 1927 deed. Stroud has since suspended payment =
pending=20
resolution of the present dispute. Taylor=20
filed the present suit for declaratory judgment in October 2003. =
Taylor's=20
first motion for summary judgment asserted that Bowers's royalty =
interest=20
had expired, and that the purported transfer of a one-third fee =
interest=20
in the mineral estate to Marrs McLean violated the rule against=20
perpetuities. Taylor's second motion for summary judgment =
contended in the=20
alternative that the Cade B lease was never "forfeited," but =
instead=20
terminated for lack of production, and thus the condition =
precedent to=20
McLean's heirs' ownership has not occurred. The trial court =
granted=20
summary judgment on all grounds. Following a bench trial, the =
trial court=20
denied certain counterclaims by Bowers, We review=20
summary judgments de novo. Valence Operating Co. v. =
Dorsett, 164=20
S.W.3d 656, 661 (Tex. 2005). When, as here, a summary judgment =
order does=20
not specify the grounds on which it was granted, we will affirm =
the=20
judgment if any one of the theories advanced before the trial =
court is=20
meritorious. Atlantic Lloyds Ins. Co. v. Butler, 137 =
S.W.3d 199,=20
208 (Tex. App.--Houston [1st Dist.] 2004, pet. denied); see =
also Joe=20
v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.=20
2004). Summary=20
judgment is appropriate in cases involving the interpretation of =
an=20
unambiguous document. See Coker v. Coker, 650 S.W.2d 391, =
393-94=20
(Tex. 1983) (holding that if court can give certain or definite =
legal=20
meaning or interpretation to words of instrument, it is =
unambiguous and=20
court may construe it as matter of law). Under the standard of =
review for=20
a traditional summary judgment, the moving party must establish =
that no=20
material fact issue exists, and that it is entitled to judgment as =
a=20
matter of law. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. =
and Tumor=20
Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). The motion =
must=20
state the specific grounds relied upon for summary judgment. Tex. =
R. Civ.=20
P. 166a(c). In reviewing a traditional summary judgment, we must =
indulge=20
every reasonable inference in favor of the nonmovant, take all =
evidence=20
favorable to the nonmovant as true, and resolve any doubts in =
favor of the=20
nonmovant. Valence Operating Co., 164 S.W.3d at 661. =
Declaratory=20
judgments decided by summary judgment are reviewed under the same=20
standards of review that govern summary judgments generally. =
Lidawi v.=20
Progressive County Mut. Ins. Co., 112 S.W.3d 725, 730 (Tex.=20
App.--Houston [14th Dist.] 2003, no pet.). Taylor's=20
first motion for summary judgment sought relief on the grounds =
that the=20
conveyance of a one-third mineral fee interest to McLean was void =
at its=20
inception, because it would not vest within the time period =
prescribed by=20
the rule against perpetuities. The Texas constitution states that=20
"[p]erpetuities . . . are contrary to the genius of a =
free=20
government, and shall never be allowed." Tex. Const. art. I, =A7 =
26. Texas=20
courts have enforced this provision by applying the common law =
rule=20
against perpetuities. Mattern v. Herzog, 367 S.W.2d 312, =
314=20
(Tex. 1963). Under the rule, an interest is not valid unless it =
must vest,=20
if at all, within 21 years after the death of some life or lives =
in being=20
at the time of the conveyance. Peveto v. Starkey, 645 =
S.W.2d 770,=20
772 (Tex. 1982). On appeal, Bowers contends, alternatively, that =
Taylor's=20
motion failed to distinguish between vesting-in-interest and=20
vesting-in-possession, that the conveyance was of a present =
interest and=20
not a future interest subject to remote vesting, and that rules of =
construction direct us to treat the deed as a present=20
conveyance. A.=20
Taylor's first motion for summary judgment In her=20
first motion for summary judgment, Taylor contends that Texas law =
is "well=20
settled" that deeds of the sort at issue here violate the rule =
against=20
perpetuities. Taylor relies on Peveto v. Starkey for the=20
proposition that her predecessors in interest created a springing=20
executory interest in favor of McLean that violates the rule.=20
Peveto, 645 S.W.2d at 772. In Peveto, the =
supreme court=20
reviewed an instrument that provided that "This grant shall become =
effective only on the expiration of the above described Royalty =
Deed to=20
R.L. Peveyto [sic] dated April 23, 1960." Id. at 771. The =
court=20
held that the words "effective only upon" B.=20
Bowers's response to the motion for summary judgment =
In=20
response, Bowers contends that the 1927 deed does not convey a =
springing=20
executory interest, but instead conveys a presently vested =
interest in the=20
possibility of reverter that was created by the Cade B Lease. =
Bowers=20
asserts that when the deed is viewed as a whole, the intent of the =
parties=20
was clearly to transfer the possibility of reverter. Bowers =
contends that=20
Taylor's construction fails to distinguish between vesting in =
interest and=20
vesting in possession. Bowers also=20
contends that Peveto is not controlling, and that instead =
we=20
should apply Jupiter Oil v. Snow, in which the supreme =
court=20
reviewed a lease that stated that [i]n the=20
event the lease now on said land is forfeited or terminated =
withou[t]=20
producing mineral of any kind, then the grantee herein or his =
assigns are=20
to have and hold under this conveyance an undivided 1/2 of all the =
oil.=20
[sic] gas or other mineral of whatsoever kind character in and =
under the=20
land herein described, and it is the intention of the grantors =
herein that=20
in the event said lease is forfeited, then in that event the =
grantee is to=20
have and hold an equal undivided one half of all such=20
minerals. Jupiter=20
Oil Co. v. Snow, 819 S.W.2d 466, 468 (Tex. 1991). The court =
found=20
that this conveyance successfully avoided the rule against =
perpetuities.=20
Id. at 469. It held that the effect of this conveyance =
was to=20
expand the grantee's interest in the mineral estate immediately =
upon=20
termination of a prior lease, and therefore was a transfer of the=20
possibility of reverter. See id.; see also Bagby v.=20
Bredthauer, 627 S.W.2d 190, 194 (Tex. App.--Austin 1981, no =
writ). C.=20
Analysis Under=20
Texas's "Four Corners" rule, the primary duty of a court =
construing an=20
unambiguous deed is to ascertain the intent of the parties from =
all the=20
language in the deed. Luckel v. White, 819 S.W.2d 459, =
461 (Tex.=20
1991). We attempt to harmonize all portions of the deed, and give =
effect=20
to all provisions. Id. at 462. When two instruments =
involve the=20
same parties and relate to the same transaction, we read the =
documents=20
together in order to ascertain the parties' intent. See Fort =
Worth=20
Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 =
(Tex.=20
2000). An oil and=20
gas "lease" is not a typical lease. Natural Gas Pipeline Co. =
of Amer.=20
v. Pool, 124 S.W.3d 188, 192 (Tex. 2003). Instead, the lessor =
(actually a grantor) grants a mineral interest in fee simple =
determinable=20
to the lessee (actually a grantee). Id. The lessor =
retains a=20
possibility of reverter in the mineral estate. Id. Thus =
upon=20
termination of the "lease," the mineral estate reverts to the =
grantors of=20
the lease, their heirs, or their assigns. Jupiter Oil, =
819 S.W.2d=20
at 468. The grantor may sell or assign the possibility of =
reverter.=20
Id. Both=20
parties to the present lawsuit point out that McLean was both the =
lessee=20
under the 1919 Cade B Lease and the grantee under the 1927 deed. =
We note=20
that this fact places this case on a different footing than both=20
Peveto and Jupiter Oil. In those cases, one =
party sought=20
to take a mineral or royalty interest after the ending of a lease =
in favor=20
of another party. In Peveto, a grantor conveyed a term =
royalty=20
interest to one party, Peveto, and then conveyed a second royalty =
interest=20
to a second party, Starkey, which purported to take effect after =
Peveto's=20
term royalty expired. Peveto, 645 S.W.2d at 771. In =
Jupiter=20
Oil, the grantor's successors were not a party to the case. =
Instead,=20
the lawsuit was between the successors in interest to the lessee =
of a=20
mineral tract, and the successors in interest to a grantee of an =
uncertain=20
interest. Jupiter Oil, 819 S.W.2d at 467. Because the=20
1919 Cade B Lease and the 1927 deed involve the same parties and =
relate to=20
the same transaction, we construe them together. See Fort =
Worth Indep.=20
Sch. Dist., 22 S.W.3d at 840. The grantors, as lessors in the =
1919=20
Cade B Lease, retained a possibility of reverter in the lands =
covered by=20
the lease. If Taylor's predecessors, as grantors in the 1927 deed, =
conveyed a one-third portion of their possibility of reverter, =
then the=20
rule against perpetuities is not implicated by the transaction. =
See=20
Jupiter Oil, 819 S.W.2d at 468. We conclude that such a =
transfer is=20
evidenced by the deed. Jupiter=20
Oil is on point. The conveyance before us contains "intent" =
language,=20
as does the conveyance approved by the supreme court in =
Jupiter=20
Oil; the conveyance disallowed in Peveto does not =
contain=20
"intent" language. In addition, the intent language in the =
conveyance at=20
issue here is more explicit as to the intent of the parties than=20
Jupiter Oil. In Jupiter Oil, the intent was to =
make a=20
transfer of a one-half interest "in the event said lease is =
forfeited."=20
Jupiter Oil, 819 S.W.2d at 468. In the 1927 deed, the =
intent was=20
"to transfer to Marrs McLean one-third (1/3) interest in the =
minerals,=20
rights and royalty" without any mention of a future contingency. =
In=20
addition the habendum clause of the 1927 deed states that McLean =
was to=20
take "the above described mineral and royalty interests," with no =
mention=20
of any delay or contingency. Construing=20
the 1927 deed as a whole, and not taking the "will become vested" =
language=20
in isolation, we conclude that the intent of the parties to the =
1927 deed=20
was to make a present conveyance of the grantor's interest in the =
Cade B=20
mineral estate. See Luckel, 819 S.W.2d at 461-62. That =
interest=20
was a possibility of reverter, and a transfer of the possibility =
of=20
reverter does not violate the rule against perpetuities. =
Id. at=20
464. We hold that Taylor's the ground asserted in Taylor's first=20
motion--that the 1927 conveyance violated the rule against=20
perpetuities--cannot support summary judgment. Taylor's=20
second motion for summary judgment contends that the condition =
precedent=20
for McLean and his successors to claim their possessory interest =
in the=20
Cade B mineral estate--that the Cade B Lease be "forfeited"--has =
not=20
occurred. A.=20
Taylor's second motion for summary judgment Taylor=20
asserts that "Texas law is well settled that termination for=20
non-production is not a 'forfeiture[,]'" and that instead the Cade =
B Lease=20
"terminated by its own terms when it permanently ceased producing=20
hydrocarbons in 1988." Forfeitures, Taylor contends, "are penal in =
nature=20
. . . . [and] can only be established by =
affirmative=20
actions taken by the lessor." See, e.g., Hickernell v. =
Gregory,=20
224 S.W. 691, 695-98 (Tex. Civ. App.--Amarillo 1920, no writ). =
Since the=20
Lease expired by its terms for non-production in 1988, Taylor =
argues, the=20
Lease was never forfeited, and the contingent grant of one-third =
of the=20
mineral estate was never triggered. In this=20
appeal, as in the hearing on its motions before trial court, =
Taylor=20
contends that within the four corners of the 1927 deed, the intent =
of the=20
parties is clear when it is remembered that McLean is the mineral =
lessee=20
as well as the deed grantee. B.=20
Bowers's response to the second motion for summary=20
judgment Bowers=20
responds that the term "forfeited" in the deed and the lease, like =
the=20
phrase "is to become vested" in the deed, ought not to be =
considered in a=20
vacuum, but in concert with the deed and lease as a whole. =
Particularly,=20
Bowers points to a clause in the 1919 lease that states that =
Under the=20
penalty of forfeiture of the rights and estates hereby granted, =
operations=20
for the drilling of a well for oil, gas, or minerals is to be =
begun within=20
twelve months from the time of the final execution and delivery of =
this=20
contract, but it is granted to the lessee the right to prevent =
such=20
forfeiture by paying to the lessor, or depositing to their credit =
in the=20
Gulf National Bank of Beaumont, Texas, the sum of Fifty Three =
Hundred=20
Dollars on or before the expiration of the said twelve month =
period, which=20
will extend the time within which operation for the drilling of a =
well is=20
to be begun, for an additional twelve month period. Bowers=20
contends that this language shows that the term "forfeiture," as =
used in=20
the deed, refers to automatic termination of the lease, as for =
failure to=20
pay delay rentals. Thus, according to Bowers, forfeiture includes=20
automatic termination in addition to Taylor's more limited =
definition that=20
requires some affirmative act. Bowers also points again to the =
intent=20
clause in the deed as a key to construing the deed as a whole to =
show that=20
the parties to the deed meant to transfer a mineral interest in =
addition=20
to a royalty interest. C.=20
Analysis Taylor=20
correctly notes that Bowers cites as authority a line of cases =
that does=20
not include any clause that refers to "forfeiture" standing alone, =
but=20
instead that use "forfeiture" in concert with other words =
evidencing the=20
end of a mineral lease. See, e.g., Jupiter Oil, 819 =
S.W.2d at 468=20
("forfeited or terminated without producing mineral of any kind"); =
Fleming v. Ashcroft, 175 S.W.2d 401, 404 (Tex. 1943) =
("cancelled=20
or forfeited"). We also note that in certain contexts the term=20
"forfeiture" is incompatible with termination of a lease for =
cessation of=20
production. See, e.g., Woodson Oil Co. v. Pruett, 281 =
S.W.2d 159,=20
164 (Tex. Civ. App.--San Antonio 1955, writ ref'd n.r.e.) (where =
lessee=20
asserted ratification of lease by acceptance of royalty payment, =
there was=20
no principle of forfeiture when lease terminated by its own =
provision for=20
cessation of production); Sunray DX Oil Co. v. Texaco, =
Inc., 417=20
S.W.2d 424, 427-28 (Tex. Civ. App.--El Paso 1967, writ ref'd =
n.r.e.) (no=20
forfeiture where parties contracted that lease would terminate =
upon=20
cessation of production in paying quantities). We agree=20
with Bowers that the term, as used here, is intended to be read =
more=20
broadly, to include automatic termination. See Riley v.=20
Meriwether, 780 S.W.2d 919, 923 (Tex. App.--El Paso 1989, =
writ=20
denied) ("While generally forfeitures may not be favored in the =
law, this=20
is not true when a lease terminates by its own provisions due to a =
cessation of production."); Witherspoon v. Green, 274 =
S.W. 170,=20
171 (Tex. Civ. App.--Dallas 1925, no writ) (term "forfeited" =
included=20
termination of lease by its terms for failure to pay delay =
rental). The=20
1919 Cade B Lease uses the phrase "penalty of forfeiture" to refer =
to the=20
result of failure to begin operation or failure to pay delay =
rentals,=20
either of which generally would lead to automatic termination of =
the lease=20
by its own terms. We therefore disagree with Taylor that =
"forfeiture," as=20
used here, is limited only to termination of the lease by =
affirmative=20
action of the lessor. We must=20
look to the 1927 Deed as a whole, in addition to the 1919 Cade B =
Lease, to=20
determine what the parties intended when they stated that "if said =
lease=20
should be forfeited, then the one fortieth (1/40) royalty interest =
. . . shall be cancelled and in lieu thereof and in =
subdivision=20
therefor, the said Marrs McLean is to become vested with one-third =
(1/3)=20
interest in the fee title." Clauses in the Deed state that the =
intent was=20
"to transfer to Marrs McLean one-third (1/3) interest in the =
minerals,=20
rights and royalty" and that McLean was "TO HAVE AND TO HOLD the =
above=20
described mineral and royalty interests." As we have concluded, =
these=20
clauses show that the intent of the parties was to transfer a =
possibility=20
of reverter, which takes effect at the termination of the lease =
for any=20
reason, including cessation of production. See Jupiter =
Oil, 819=20
S.W.2d at 468. Furthermore, the 1919 lease states that =
"forfeiture" was=20
the penalty for failing to perform acts that generally would lead =
to the=20
termination of the lease by its own terms, just as it would =
terminate for=20
lack of production. We conclude that Taylor's narrow definition of =
the=20
term "forfeit" does not apply to the 1919 lease or the 1927 deed =
because=20
"forfeit," as used in the documents before us, properly includes=20
termination for lack of production. We hold that the trial court =
erred by=20
rendering a declaratory judgment that Bowers did not receive a fee =
simple=20
interest in the mineral estate. Bowers=20
contends on appeal that declaratory judgment is not the =
appropriate=20
vehicle for Taylor's lawsuit. They assert that the suit is in the =
nature=20
of a trespass to try title action, and therefore the trial court =
erred by=20
awarding attorney's fees under the Declaratory Judgments Act. =
See=20
Tex. Civ. Prac. & Rem. Code Ann. =A7 37.009. In the =
alternative, Bowers=20
asserts that because the trial court's declaratory judgment was =
error, its=20
award of attorney's fees was not equitable or just, and therefore =
was=20
error. Following a=20
hearing, the trial court issued findings of fact and conclusions =
of law=20
that stated that Taylor was entitled to attorney's fees because=20
"Plaintiffs prevailed on their request for a declaratory judgment=20
concerning the meaning and legal effect of the Deed's terms." =
Having=20
determined that the trial court erred by granting summary judgment =
in=20
favor of Taylor in the declaratory judgment action, we reverse and =
remand=20
the trial court's award of attorney's fees to Taylor that were =
entered in=20
accordance with that declaratory judgment for further proceedings =
not=20
inconsistent with this opinion.
We hold=20
that summary judgment was improperly granted by rendering a =
declaratory=20
judgment that Bowers did not receive a fee simple interest in the =
mineral=20
estate. We reverse the judgment of the trial court and remand for =
further=20
proceedings not inconsistent with this opinion. Elsa=20
Alcala Panel=20
consists of Justices Taft, Alcala, and Hanks.
1. Taylor also sought and was granted =
summary judgment=20
on the grounds that Bowers's one-fortieth royalty interest expired =
in=20
1988. The trial court's summary judgment order stated that "both =
of=20
Plaintiffs' motions for summary judgment are granted in all =
respects." The=20
final judgment incorporated the summary judgment order. Bowers =
does not=20
appeal the trial court's judgment that its one-fortieth royalty =
interest=20
has expired 2. Bowers contends in the alternative that =
the=20
conveyance at issue is ambiguous. Having construed the conveyance =
as we=20
have, we do not reach this alternative issue on appeal.=20
3. Because Bowers never moved for summary =
judgment=20
below, the trial court would have been unable to render judgment =
in=20
Bowers's favor. See Tex. R. App. P. 43.3 (appellate court =
must=20
render judgment that trial court should have rendered).=20
4. Bowers has not appealed the denial of its =
counterclaims that seek damages for breach of warranty of title =
or,=20
alternatively, the imposition of a constructive trust.=20
5. The supreme court quotes the =
Peveto lease=20
as stating that the grant is to become "effective only on" the =
expiration=20
of a deed as well as "effective only upon" the expiration of a =
deed.=20
Peveto v. Starkey, 645 S.W.2d 770, 771, 772 (Tex. 1982).=20
6. Bowers asserts a number of additional =
grounds in=20
its response to the motion for summary judgment that it does not =
continue=20
to assert on appeal.=20
7. Taylor further=20
asserts on appeal that McLean, having used the term "forfeit" in =
the 1919=20
lease, knew its proper meaning and would have intended that same =
meaning=20
in the 1927 deed. 8. The deed expressly incorporates the =
mineral lease=20
under which McLean is =
lessee.
O P=20
I N I O N