Carminati v. Fenoglio, 15498

• Decision Date: 02 April 1954
• Docket Number: No. 15498,15498
• Citation: 267 S.W.2d 449
• Parties: CARMINATI et al. v. FENOGLIO et al.
• Court: Texas Court of Appeals

Page 449

267 S.W.2d 449

CARMINATI et al. v. FENOGLIO et al.

No. 15498.

Court of Civil Appeals of Texas, Fort Worth.

April 2, 1954.

Rehearing Denied April 30, 1954.

T. B. Coffield, Bowie, for appellants P. A. Carminati and others.

Marvin F. London, Joe H. Cleveland, Bowie, and McDonald & Anderson and Geo. W. Anderson, Wichita Falls, for appellants the Mrs. K. D. Fenoglio Group.

Donald & Donald, Bowie, Boyd Barjenbruch, Montague, Tipps, Masters & McCormick, and O. R. Tipps, Wichita Falls, for appellees.

BOYD, Justice.

This suit was filed by appellants, P. A. Carminati and others, against three groups of defendants referred to as the Paul Veretto group, the Barney Fenoglio group, and the Mrs. K. D. Fenoglio group, seeking the reformation of a deed executed by Paul Veretto and Barney Fenoglio to John Carminati on February 11, 1905, to remove cloud from title, to quiet title, and for judgment decreeing that they are the owners of the minerals in and under the land involved, and in the alternative that they are the owners of the oil and gas and all minerals other than gold and silver. They also assert title under the ten-year statute of limitation and under Article 5519a, R.C.S. These appellants claim the property by deed from John Carminati and his present wife as well as by inheritance from his deceased wife. Mrs. K. D. Fenoglio was the assignee of notes and vendor's lien retained by Barney Fenoglio on the land sold to John Carminati, and the Mrs. K. D. Fenoglio group of defendants are her heirs.

In the deed from Paul Veretto and Barney Fenoglio to John Carminati there appears this provision:

'It is expressly agreed and understood by all the parties to this instrument that all minerals in the above described lands are retained by the grantors herein, and there is also reserved the right and privilege of prospecting on said land for minerals, and mining therefor, and erecting all such buildings as may be or become necessary on account of such mining operations; but in the event any damage be done to any buildings of said conveyed premises, or to any of the tillable land, by such mining operations, then and in that event the grantors agree to pay for such damages the amount thereof to be determined by arbitration.'

In the transfer of the vendor's lien and notes by Barney Fenoglio to Mrs. K. D. Fenoglio there is this provision: '* * * and have and do hereby Bargain, sell and Quit-Claim all my right, title, interest, estate, claim and demand both legal and equitable, in and to said land and every part thereof, together with all and singular the hereditaments and appurtenances thereunto appertaining.' This transfer was made on February 9, 1907, and the notes were released by Mrs. Fenoglio on January 6, 1911, her release containing the following: 'But it is intended to release only the above named three notes.'

Plaintiffs alleged that the execution of the deed from Veretto and Fenoglio to John Carminati was the result of accident or mistake of all parties thereto in so far as the term minerals in the reservation may be held or claimed to include oil and gas; and that all of the parties to said instrument intended that the reservation should, and believed at the time that it did, include only gold and silver, and reserved those minerals only for the term of a contract the grantors had theretofore made with B. B. Walker. It was alleged that the Walker contract terminated on June 18, 1906; that about the year 1906 John Carminati took actual custody and possession of the land and the mines, shafts and holes dug by B. B. Walker, and took custody and actual possession of same under a claim of right and ownership, which was well known to Paul Veretto and Barney Fenoglio; that said John Carminati and the plaintiffs have since said time been in actual, uninterrupted and undisputed control, dominion and custody of said land and all improvements thereon and minerals therein; and at all times asserted their claim to all of said land, including all minerals therein.

The Paul Veretto and Barney Fenoglio groups filed an answer claiming the minerals in said land by inheritance from the grantors in the deed to John Carminati, and the Mrs. K. D. Fenoglio group filed an answer claiming ten-elevenths of the minerals under the instrument which assigned the vendor's lien and notes from Barney Fenoglio to Mrs. K. D. Fenoglio.

The Paul Veretto and Barney Fenoglio groups filed motion for summary judgment, asserting that there was no material fact issue and that they were entitled to recover as a matter of law; that the minerals were severed from the surface and reserved to the grantors in the deed of February 11, 1905, and that any claim of the plaintiffs of the right of reformation was barred by the four-year statute of limitation. The plaintiffs and the Mrs. K. D. Fenoglio group of defendants filed answers to the motion for summary judgment, and plaintiffs also filed a motion for summary judgment. Plaintiffs' motion for summary judgment was overruled and that of the Paul Veretto and Barney Fenoglio groups of defendants was sustained. Plaintiffs and the Mrs. K. D Fenoglio group of defendants have appealed.

In our consideration of the case we must assume that the Carminati group of appellants, plaintiffs below, can establish on a trial that it was the understanding and agreement of Paul Veretto, Barney Fenoglio and John Carminati that oil and gas were not to be reserved in the deed of February 11, 1905; and if, therefore, their claims are not barred by limitation, the summary judgment was erroneously entered as to them.

Paul Veretto died in 1916 and Barney Fenoglio died in 1924. The deed which is herein sought to be corrected was delivered and filed for record on February 11, 1905, and this suit was filed on July 17, 1952. The Carminati group of appellants did not plead or offer to prove any reason or excuse for not sooner bringing the suit for reformation of the deed.

In our opinion all minerals, including oil and gas, were as a matter of law reserved in the deed from Paul Veretto and Barney Fenoglio to John Carminati. Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 127 A.L.R. 1217; Luse v. Boatman, Tex.Civ.App., 217 S.W. 1096, writ refused; Rio Bravo Oil Co. v. McEntire, 128 Tex. 124, 95 S.W.2d 381: Warner v. Patton, Tex.Civ.App., 19 S.W.2d 1111, writ refused: Watkins v. Certain-Teed Products Corporation, Tex.Civ.App., 231 S.W.2d 981; Luse v. Parmer, Tex.Civ.App., 221 S.W. 1031, writ refused; Elliott v. Nelson, 113 Tex. 62, 251 S.W. 501.

We think that Article 5529, R.C.S., applies to this case. It provides: 'Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.' It is the established law in this state that suits brought to correct mistakes in deeds are governed by Article 5529, Revised Civil Statutes of 1925, and that, if such a suit is not brought within four years next after the right to bring it shall have accrued is barred * * *.' Kennedy v. Ellisor, Tex.Civ.App., 154 S.W.2d 284, 286, writ refused. See Hamilton v. Green, Tex.Civ.App., 166 S.W. 97; Pure Oil Co. v. Ross, 131 Tex. 41, 111 S.W.2d 1076; McCampbell v. Durst, 15 Tex.Civ.App., 522, 40 S.W. 315; Gaither v. Gaither, Tex.Civ.App., 234 S.W.2d 135, writ refused n. r. e.

Where the vendee is chargeable with knowledge of a mistake in his deed, limitation begins to run from the time of the delivery of the deed. Cleveland State Bank v. Gardner, Tex.Com.App., 286 S.W. 173; Yost v. Wilson, Tex.Civ.App., 27 S.W.2d 286; Gulf Production Co. v. Palmer, Tex.Civ.App., 230 S.W. 1017, writ refused; McCampbell v. Durst, supra; Mounger v. Daugherty, Tex.Civ.App., 138 S.W. 1070.

We think the burden was on the Carminati group of appellants to allege and offer to prove the existence of facts that would excuse their failure sooner to file the suit. Rowe v. Horton, 65 Tex., 89; Oldham v. Medearis, 90 Tex. 506, 39 S.W. 919; Clopton v. Cecil, Tex.Civ.App., 234 S.W.2d 251, writ refused n. r. e.; Texas Osage Cooperative Royalty Pool v. Colwell, Tex.Civ.App., 205 S.W.2d 93, writ refused n. r. e.; Mathis v. Stockdick, Tex.Civ.App., 189 S.W.2d 106, writ refused.

Actions to reform a deed procured by fraud are governed by Article 5529, and it seems to be settled that such actions are barred in four years after the defrauded party discovered, or by the exercise of reasonable diligence might have discovered, the fraud. Pitman v. Holmes, 34 Tex.Civ.App., 485, 78 S.W. 961; Vodrie v. Tynan, Tex.Civ.App., 57 S.W. 680; Munson v. Hallowell, 26 Tex. 475; Anding v. Perkins, 29 Tex. 348; Bremond v. McLean, 45 Tex. 10; Kuhlman v. Baker, 50 Tex. 630; Kennedy v. Baker, 59 Tex. 150; Brown's Heirs v. Brown, 61 Tex. 45; Calhoun v. Burton, 64 Tex. 510; Bass v. James, 83 Tex. 110, 18 S.W. 336. In Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 137 A.L.R. 263, it was held that a suit filed on November 1, 1936 to set aside because of fraud an exchange of lands effectuated by the granting of deeds on November 25, 1931, was barred by this article, the plaintiffs having failed to plead or prove any excuse for their failure to file within four years after the execution of the deeds.

After a thorough consideration of the oral arguments and the able and elaborate briefs of the parties, we have reached the conclusion that the cause of action to reform the deed is barred by the four-year statute of limitation.

Although the Carminati group of appellants pleaded causes of action other than for the reformation of the deed, such as to remove cloud from title, to quiet title, and for a decree declaring that they are the owners of the minerals by virtue of the deed, such asserted causes of action involved title, and depended upon the reformation of the deed reserving the minerals. Such consequential relief could not be had until t...