Gilmore v. O'Neil

• Decision Date: 21 June 1911
• Citation: 139 S.W. 1162
• Parties: GILMORE et al. v. O'NEIL et al.
• Court: Texas Court of Appeals

139 S.W. 1162

GILMORE et al. v. O'NEIL et al.

Court of Civil Appeals of Texas. San Antonio.

June 21, 1911.

On Motions for Rehearing, October 4, 1911.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by G. E. Gilmore and others against John O'Neil and others. From a judgment in favor of defendant O'Neil for the land in controversy and for the proceeds of certain oil in the hands of a bailee, plaintiffs appeal. Reversed and remanded.

John Charles Harris, Harris & Harris, and S. H. Brashear, for appellants. Lane, Wolters & Storey and Wm. A. Vinson, for appellees.

JAMES, C. J.

The action was instituted by G. E. Gilmore, W. H. Nicholson, D. R. Beatty, and J. R. Cheek against John O'Neil in trespass to try title for a tract of 66 feet by 208 feet (about one-third of an acre upon which an oil well was procured by O'Neil), a part of what was known as the "James Jones 50-acre tract in Harris county," originally owned by James Jones, the common source of title; it having been community property of himself and wife, Lucy. There were interventions, one by the Guffey Petroleum Company and the other by heirs of James Jones. The controversy involved the title to a strip of land and to certain oil produced from it, the proceeds of which oil is held by the Texas Company, a party defendant, as stakeholder for the litigants herein. Upon findings on special issues by the jury, the court gave judgment in favor of O'Neil for the land and for $29,563.85, the proceeds of the oil in the hands of the Texas Company. James Jones and wife on September 28, 1903, executed to Nancy Duey a deed describing the land conveyed as 1.35 acres out of the southeast corner of the 50-acre tract. On August 1, 1908, Nancy Duey conveyed an undivided half interest to her son-in-law, John S. Kuhn, describing the tract in the same manner, and on same date she gave Kuhn a power of attorney to grant, sell, convey, or lease her half interest, and Kuhn on same day executed a lease of same by the same description to James Donahue, and on same day Donahue assigned the lease to O'Neil. O'Neil some time in August proceeded to drill the well at the point upon the strip in question, as shown on the plat attached hereto, and on September 17, 1908, he purchased and took deed from Mrs. Duey and Kuhn, describing the land as 1 2/3 acres of land out of the James Jones tract by field notes, constituting a tract in the southeast corner. O'Neil did not in terms ask for a reformation of the deed correcting said mistake and make himself a plaintiff in a cross-action for that purpose, but pleaded the facts evidently upon the theory that same gave him an equitable title to the one-third in controversy, which he could plead as a defense in this suit to recover the land from him. To this matter the plaintiffs and the interveners representing the heirs of Jones pleaded the statute of limitations of four years, claiming that, as more than four years had elapsed since the deed was made, the right to reform it was barred. The case is briefed extensively and mainly upon this question. There were no allegations as to when the mistake in the deed was discovered, and, in the absence thereof, it must for all purposes be assumed that the right of action to correct the deed accrued at the time it was made.

The statute invoked is article 3358, Sayles' Ann. Civ. St., which reads: "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 same shall have accrued, and not afterward." We are of opinion that a suit to correct or reform an instrument, though such instrument concern title to real estate, comes within the above article. It is not an action for the recovery of real estate, though the relief when granted in such proceeding may serve as the foundation for its recovery. It is a proceeding which may be had separately from an action to recover real estate, or in connection with such an action, but the latter is allowed as the result of the former. Railway v. Titterington, 84 Tex. 225, 19 S. W. 472, 31 Am. St. Rep. 39; McCampbell v. Durst, 15 Tex. Civ. App. 535, 40 S. W. 315.

The deed did not by any construction of its terms confer title legal or equitable to the land in question. The facts pleaded by O'Neil did not of themselves, nor in connection with the deed, constitute a title to said tract. Until a court of equity had acted upon the pleading and facts, and granted a correction of the instrument to make it read as was intended by the parties, he had no title by virtue of it that he could use as a defense. It appears to be admitted that he could not as plaintiff sustain such a suit after four years had run against it. It seems to us that he could not do so as a defendant in an action brought against him to recover the land, if he set up the matter by a cross-action, because in so doing he would assume the attitude of a plaintiff. And, if these views are correct, we do not see how he could be in any better position by simply setting up the matter as a defense, relying upon it as an equitable title, when it constituted no title at all.

There was no possession taken by Mrs. Duey for more than four years after the deed was executed of any of the land, nor by any one until O'Neil did so in August, 1908. Nothing was done by Jones or his wife and heirs during that time which operated to prevent or excuse the bringing of a suit to correct the deed. All that appeared in this regard were his or their acts recognizing the fact that this 1½-acre tract in the form shown on the annexed plat was the property of Mrs. Duey. This was not enough to prevent the running of the statute as was explained in the opinion in Mathews v. Benevides, 18 Tex. Civ. App. 475, 45 S. W. 31. Previous to the enactment of said article, our courts applied in lieu of limitations the doctrine of stale demands to equitable actions, and were more liberal in excusing delays in bringing such suits than we conceive is permissible now that the subject is regulated by statute. The statute cannot be ignored. It prescribes the time after which such actions accrue during which the proceeding must be brought, and the only exceptions to its operation are those common to other statutes of limitations. Fraudulent conduct or conduct amounting to fraud, or the like, would excuse, but the circumstances here present no such case.

In the original opinion we took the view that the transaction between Mrs. Duey and Jones and wife amounted to an oral sale of the one-third of an acre omitted from the deed, but we now conclude that this view was erroneous for several reasons: (1) Because after the death of Jones, which occurred in 1907, a title by oral sale...