Gilbert v. Smith

• Decision Date: 16 May 1932
• Docket Number: No. 1550-5870.,1550-5870.
• Citation: Gilbert v. Smith, 49 S.W.2d 702, 86 A.L.R. 445 (Tex. 1932)
• Parties: GILBERT et ux. v. SMITH.
• Court: Texas Supreme Court

49 S.W.2d 702

GILBERT et ux. v. SMITH.

No. 1550-5870.

Commission of Appeals of Texas, Section A.

May 16, 1932.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by Pick Smith against Joe Gilbert and wife. From a judgment sustaining certain exceptions to the petition, plaintiff appealed to the Court of Civil Appeals [32 S.W.(2d) 901], which reversed the judgment and remanded the cause, and defendants bring error.

Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed.

Butler, Price & Maynor, of Tyler, for plaintiffs in error.

Starnes, James, Clower & Gibson, of Greenville, for defendant in error.

HARVEY, P. J.

This is a suit brought by Pick Smith against Joe Gilbert and wife, Inez Gilbert, to recover a certain undivided interest in the mineral estate in 350 acres of land in Van Zandt county. In the alternative, the plaintiff, Pick Smith, seeks reformation of a deed as hereinafter shown. The relief sought in other respects is not material to a decision of the questions raised in this appeal. The trial court sustained certain exceptions to the plaintiff's petition, which, in effect, are general exceptions to vital portions of the petition, and, from the judgment sustaining said exceptions, the plaintiff, Pick Smith, appealed. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause. 32 S.W.(2d) 901.

According to the allegations of the plaintiff's petition, one H. H. Smith owned a body of 350 acres of land in Van Zandt county. He died in April, 1921, leaving his widow and seven children, including Mrs. Inez Gilbert, surviving. In December, 1922, the widow and seven children executed a partition deed whereby a specific part of the 350-acre tract was set apart, in severalty, to each of said parties in interest. The tract set apart to Mrs. Inez Gilbert contained 40½ acres. The partition deed expressly provided that the mineral estate in the 350 acres was not partitioned, and should remain the joint property of the widow and seven children. As basis for his claim of title to Mrs. Gilbert's undivided interest in the mineral estate in said 350 acres of land, the plaintiff alleged in paragraph 4 of his petition that he is the owner, in fee simple, of the mineral interest of Mrs. Gilbert in said 350 acres of land, under a deed executed by Mrs. Gilbert and her husband after the above partition was made, by which deed the grantors conveyed to the plaintiff the tract of 40½ acres which had been set apart to Mrs. Gilbert in said partition, together with all the interest of Mrs. Gilbert in the mineral estate in said 350 acres of land. It is further alleged that the stipulation in said deed regarding said oil and mineral rights is in words as follows, to wit: "It is agreed and understood that we hereby release any and all mineral rights to said Pick Smith and wife, Maude Smith." It is further alleged that it was meant and intended by the quoted language of the deed to convey to the plaintiff all the mineral rights of the grantors in said 350 acres of land, and that the plaintiff paid the grantors the sum of $1,200 for said 40½ acre tract of land and said mineral rights. It is further alleged that Mrs. Gilbert and her husband are wrongfully asserting title to the mineral rights conveyed by said deed. By what the plaintiff terms "a trial amendment" to his petition, the plaintiff seeks to have said deed so reformed as to bring within the operation of its terms the Gilbert interest in the mineral estate in the 350 acres of land, in case it be found that said deed as written does not effect a conveyance of said interest.

As ground for such reformation, the plaintiff alleges, in substance, that at the time and before said deed was executed, the Gilberts agreed to convey to plaintiff said 40½ acres of land, together with all their mineral rights in the 350 acres, for the sum of $1,200; that the Gilberts and the plaintiff went to a notary for the purpose of having the deed drawn in conformity to said agreement; that the notary prepared the deed, and it was duly executed by Mrs. Gilbert and her husband; that the grantors and the plaintiff believed that the clause contained in said deed, reading, "It is agreed and understood that we hereby release any and all mineral rights to said Pick Smith and wife Maude Smith," was sufficient to convey, and did convey, to the plaintiff all of Mrs. Gilbert's mineral rights in said 350 acres of land; that said notary represented to said parties to the deed that said clause was sufficient to convey all said mineral rights of Mrs. Gilbert; and that the grantors and the plaintiff relied on said representation.

The defendants, Inez Gilbert and husband, excepted...