Burress v. Byrd, 4443.

• Decision Date: 09 February 1934
• Docket Number: No. 4443.,4443.
• Parties: BURRESS v. BYRD et al.
• Court: Texas Court of Appeals

Page 529

69 S.W.2d 529

BURRESS v. BYRD et al.

No. 4443.

Court of Civil Appeals of Texas. Texarkana.

February 9, 1934.

Rehearing Denied March 8, 1934.

Appeal from District Court, Gregg County; J. B. Hatchitt, Judge.

Suit by W. M. Burress against D. H. Byrd and others. From an adverse judgment, plaintiff appeals.

Reversed and rendered.

The appellant brought the suit for decree of reformation of a conveyance executed by the appellee D. H. Byrd to appellant, of date January 29, 1931. The instrument reads, as material to state:

"State of Texas, County of Gregg.

"Know All Men By These Presents:

"That D. H. Byrd of Gregg County, Texas, for and in consideration of the sum of Ten Dollars ($10.00) cash in hand paid by W. M. Burress, the receipt of which is hereby acknowledged, have granted, sold, conveyed, assigned and delivered * * * unto the said grantee, an undivided one-sixteenth interest in and to all the oil, gas and other minerals in and under, and that may be produced from the following described land, situated in Gregg County, Texas, to-wit:

"First tract: A part of the Dolores Sanches Survey in Gregg County, Texas, and described by metes and bounds, Beginning (here follows description), containing 80 acres of land, the same being a part of the land conveyed by R. B. Johnson and wife to W. F. Abbey on February 6, 1894. * * *

"Second tract: A part of the G. W. Hooper Survey in Gregg County, Texas, and known as part of Block No. 6, and described by metes and bounds, Beginning (here follows description), containing 230 acres, more or less."

The mistakes contained in the deed, as alleged, are: That the instrument was drawn "by mutual mistake and error so as to convey an undivided 1/16 interest in and to all of the oil" instead of "an undivided 1/8 interest as it was the mutual intention of both parties to draw the instrument." That in the field notes of the second tract described there was failure (omission) to copy and set out in the description the following exceptions: "Save and except 112 acres, more or less, heretofore sold to the McWherter Brothers, the deed for same being recorded in the Deed Records of Gregg County, Volume V, p. 429, and 47.3 acres heretofore sold to J. R. Castleberry, the deed to same being recorded in Deed Records of Gregg County, Volume Z, p. 495, leaving, as I understand, 151 acres of land, more or less." The instrument was sought to be made conformable to the alleged true agreement made between the parties, and through mutual mistake not truly revealed, that W. M. Burress was to be granted an undivided 1/8 interest in the oil and mineral rights in the two tracts of land, aggregating some 151 acres, the equivalent of about a 20-acre interest, for which he was to pay and did pay $20 an acre, or $400; that the instrument by mutual mistake and error shows, and does not conform to their real agreement, that W. M. Burress was to be granted an undivided 1/16 interest in the two tracts of land of description aggregating some 310 acres.

The case was submitted to the jury on special issues, which they answered:

"No. 1. Do you find from a preponderance of the evidence that W. M. Burress and Miss Clark both at the time the mineral deed was drawn had in mind and intended to convey to Burress substantially an undivided 20-acre interest in the minerals or royalty under Byrd and Frost's purchase from the Bacles?"

Answer: "Yes."

"No. 2. Do you find from a preponderance of the evidence that Jack Frost or D. H. Byrd or Miss Margaret Clark, or either of them, agreed that W. M. Burress was to have and pay for substantially an undivided 20-acre mineral interest under Byrd and Frost's purchase from the Bacles?"

Answer: "Yes."

"No. 3. Do you find from a preponderance of the evidence that both parties to this case made a mistake in inserting field notes in the deed from D. H. Byrd to W. M. Burress that called for 310 acres instead of 151 acres?"

Answer: "Yes."

"No. 4. Do you find from a preponderance of the evidence that both parties intended to describe in said deed the actual acreage conveyed by the Bacles to D. H. Byrd?"

Answer: "Yes."

"No. 5. Do you find from a preponderance of the evidence that D. H. Byrd and Jack Frost agreed to convey to W. M. Burress 1/4 only of whatever interest of royalty that they acquired from Arenva Virsno Bacle and her husband, J. W. Bacle?"

Answer: "No."

"No. 6. Do you find from a preponderance of the evidence that W. M. Burress represented to Jack Frost that he, W. M. Burress, was obligated to deliver a portion of the Bacle royalty to Bill Harvey?"

Answer: "No."

It appears that D. H. Byrd acquired the royalty interest in the lands from A. V. Bacle and her husband, J. W. Bacle, on January 13, 1931. These grantors conveyed to D. H. Byrd "An undivided one-half (1/2) interest in and to all of the oil, gas and other minerals in and under, and that may be produced from the following described lands," which were the same two tracts as contained in conveyance of D. H. Byrd of date January 29, 1931. Mrs. Bacle, as appears, was the surviving wife of H. G. Green, deceased. The land was acquired in the lifetime of H. G. Green from John C. Carter. As reflected by the record, in the deed from John C. Carter to H. G. Green following the description by metes and bounds appears the following: "In making this deed it is my intention to sell and convey to the said H. G. Green, all the land conveyed to me and my wife by W. F. Abbey and wife on October 15, 1897, which said conveyance is recorded in the Deed Records of Gregg County, Texas, Save and except 112 acres, more or less, and 47.3 acres, more or less, leaving, as I understand, 151 acres of land, more or less."

It appears that at the time of the conveyance by Mrs. Bacle and her husband to D. H. Byrd they only claimed and represented that "we owned 151 acres," and not 230 acres, in the second tract.

The...