The opinion of the court was delivered by: John E. Miller, District Judge.
By complaint filed February 10, 1950, the plaintiffs seek a
construction of a reservation contained in a warranty deed
executed by I.O. Ponder, deceased, and the defendant, S.E.
Ponder, her surviving husband. Also, the plaintiffs ask that, if
the court is unable to construe the reservation as having expired
with the expiration of the oil and gas lease in effect at the
time the deed was executed, the court construe the reservation to
be what is commonly referred to as a nonparticipating perpetual
The defendants, on March 7, 1950, filed an answer and
cross-complaint in which they admit that the plaintiffs are the
owners of the land described in the complaint, except an
undivided one-half of the oil, gas and other minerals in and
under said land. The defendants admit that they are claiming to
be the owners of an undivided one-half interest in the oil, gas
and other minerals in the land by virtue of the reservation
contained in the deed. In their cross-claim, the defendants
allege that, at the time the deed was executed by I.O. Ponder and
the defendant, S.E. Ponder, the surviving husband of I.O. Ponder,
now deceased, the meaning of the term, royalty, had no "clear,
definite meaning to the ordinary layman, or even to most lawyers,
as it now has but was used loosely and synonymously with
`minerals'", that it was the intention of the grantors in the
deed to the plaintiff, Clampitt, and was so understood by the
plaintiff that the grantors, I.O. Ponder and the defendant, S.E.
Ponder, her surviving husband, were reserving an undivided
one-half interest in in the oil, gas and other minerals in and
upon the land, and that the deed should be reformed so as to
reflect the true intentions of the parties thereto.
By reply filed March 22, 1950, the plaintiffs deny that it was
the intention of I.O. Ponder and the defendant, S.E. Ponder, as
her surviving husband, to reserve from the grant contained in the
deed under which plaintiffs claim all the oil, gas and other
minerals in the lands, and further deny that there has been any
change in the meaning of the word, "royalty," to the ordinary
layman or to most lawyers since the execution of the said deed,
and deny that the said term, "royalty," in said deed was used
loosely and synonymously with minerals.
On June 12, 1950, the defendants filed a motion for judgment on
the pleadings under Federal Rules of Civil Procedure, rule 12(c),
28 U.S.C.A., and for summary judgment under rule 56(a). The
plaintiffs responded to the motion, and on the same date the
court entered an order overruling the motion for judgment on the
pleadings and for summary judgment. Thereupon, the cause
proceeded to trial to the court, without a jury, and at the
conclusion of the trial the attorneys for the respective parties
requested an opportunity to furnish briefs in support of their
respective contentions. The plaintiffs were given five days in
which to file their brief and the defendants were given five days
thereafter in which to file their brief, and plaintiffs were
given an additional five days thereafter in which to file a reply
brief, if they
so desired. Said briefs have been received and considered by the
court, along with the pleadings, the ore tenus testimony and
exhibits, and the court now makes and files herein its formal
Findings of Fact and Conclusions of Law, separately stated:
The plaintiff, F.L. Clampitt, is a citizen and resident of the
State of Louisiana and plaintiff, John T. Harley, is a resident
and citizen of the State of Oklahoma. The defendants are all
residents of Union County, Arkansas.
The amount involved herein exceeds in value the sum of
$3,000.00, exclusive of interest and costs.
Prior to December 29, 1920, the plaintiff, F.L. Clampitt,
became acquainted with the defendant, S.E. Ponder, and wife, I.
O. Ponder, now deceased. At that time the Ponders were living on
a farm other than the land involved herein. A few days before
December 24, 1920, the plaintiff, Clampitt, called upon the
defendant, S.E. Ponder, who at that time was working in one of
the fields on the land involved. The plaintiff stated that he
desired to buy some land in that area, which is approximately
sixteen miles southwest of the City of El Dorado, Arkansas. He
was advised by the defendant, S.E. Ponder, that the tract on
which he was working contained two-hundred acres and was owned by
his wife, I.O. Ponder, but that they would sell the same to him
for a consideration of $2,500.00, $500.00 of which was to be paid
in cash and the balance to be evidenced by notes of $500.00 each,
one of which was to be paid each year with interest until all
The testimony does not disclose whether the plaintiff,
Clampitt, talked to Mrs. Ponder at that time, but apparently he
returned to his home and claims to have written S.E. Ponder a
letter containing an offer to purchase the land. Neither the
letter nor a copy of it was introduced in evidence, but there was
introduced in evidence a letter addressed to the plaintiff,
Clampitt, dated December 24, 1920, signed by the defendant, S.E.
Ponder, reading as follows:
"As offered in your letter of 20th inst. I will accept as
settlement for tract of 240 acres of land a cash payment of $500.
and four notes of $500. each, payable annually, with 8% interest.
"I, of course, will retain half of the royalty; — that is one
sixteenth. Awaiting your reply, I am
The testimony does not disclose any reply by plaintiff,
Clampitt, to Ponder's letter of December 24, 1920, but on
December 29, 1920, a warranty deed was executed by I.O. Ponder in
which her husband, the defendant, S.E. Ponder, joined, under the
terms of which the grantor, I.O. Ponder, conveyed to the
plaintiff, F.L. Clampitt, and unto his heirs and assigns the N
1/2 of the SE 1/4 of Section 16; the N 1/2 of SW 1/4 of Section
15 and the NW 1/4 of the SE 1/4 of Section 15, all in Township 19
South, Range 18 West, in Union County, Arkansas, and containing
two-hundred acres, more or less.
Immediately following the description of the land and as a part
of the granting clause of the deed appears the following: "I,
I.O. Ponder, hereby reserve one half royalty of all oil, gas and
other minerals on the above described land."
The defendant, S.E. Ponder, joined with his wife in the
execution of the deed and it and the blank notes were sent to the
Central State Bank in Muskogee, Oklahoma, where the deed and
notes remained until January 31, 1921, at which time the cash
payment of $500.00 was made, the notes executed and the deed was
delivered to the plaintiff, F.L. Clampitt.
The plaintiff, John T. Harley, paid one-half of the cash
payment and apparently assumed payment of one-half of the notes,
and the plaintiff, F.L. Clampitt, and wife executed and delivered
to the plaintiff, Harley, their warranty ...