Harris v. Windsor

• Decision Date: 12 May 1955
• Docket Number: No. 6812,6812
• Citation: 279 S.W.2d 648
• Parties: HARRIS, Appellant, v. W. C. WINDSOR, Appellee.
• Court: Texas Court of Appeals

Page 648

279 S.W.2d 648

HARRIS, Appellant, v. W. C. WINDSOR, Appellee.

No. 6812.

Court of Civil Appeals of Texas, Texarkana.

May 12, 1955.

Rehearing Denied June 9, 1955.

Mahlon L. Walters, Jefferson, Woodrow H. Edwards, Mt. Vernon, for appellant.

Will Mann Richardson, Tyler, for appellee.

DAVIS, Justice.

Appellee, Windsor, plaintiff below, sued appellant, Harris, defendant below, in trespass to try title to an undivided 3/8 mineral interest in and to a 239 1/4-acre tract of land in the R. E. Allen H. R. Survey in Marion County, Texas; and, in the alternative, for reformation of a warranty deed executed by Windsor to Harris dated March 15, 1944. windsor, in due course and time, filed a motion for summary judgment which was granted by the trial court.

The deed was a standard form, and immediately following the description of the land the following special provision is contained therein:

'And being the same land described in a warranty deed from The Federal Land Bank of Houston to W. C. Windsor, recorded in Vol. X-2, page 119, Deed Records of Marion County, Texas, reference to which is made for all purposes.'

Immediately following the above special provision the following special provision is contained therein:

'There is, however, expressly excepted from this conveyance and reserved by the said W. C. Windsor, an undivided three-eights (3/8) in and to all of the oil, gas and other minerals in and under and that may be produced from the above described premises, together with the right of ingress and egress for the purpose of mining, marketing and transporting the same.'

The Federal Land Bank deed referred to in the foregoing deed from Windsor to Harris contained the following special provisions:

'The terms of General Warranty herein contained are subject to all restrictions and reservations contained in that certain deed executed by G. W. Liverman in favor of L. M. Tems, dated November 12, 1923, and recorded in 'V-1', page 188, of the Deed Records of Marion County, Texas, to which said deed and the record thereof reference is hereby made for all legal purposes. * * * (Liverman reserved one-half (1/2) the minerals in the Tems deed.)

'The Federal Land Bank of Houston does bind itself, its successors and assigns to Warrant and Forever Defend all and singular the said premises unto the said W. C. Windsor, his heirs and assigns, against every person whomsoever lawfully claiming, or to claim the same, or any part thereof, in so far as the surface and one-half (1/2) interest in the oil, gas and other minerals in, to, on and under and that may be produced from the above described land are conserned, and no further.'

The deposition of Harris was taken and in that part of same offered in evidence on the hearing on the motion for summary judgment, he admitted: (1) He knew at the time he bought the land that he was getting only a 1/8 mineral interest; (2) that 1/2 of the minerals had previously been reserved by Liverman; (3) Windsor owned only 1/2 of the minerals at the time, and Harris purchased the land and 1/8 of the minerals; (4) Harris' attorney, who examined the abstract for Harris, advised...