Kahanek v. Kahanek, 11762.

• Court: Texas Court of Appeals
• Writing for the Court: Graves
• Citation: Kahanek v. Kahanek, 192 S.W.2d 174 (Tex. App. 1946)
• Decision Date: 16 January 1946
• Docket Number: No. 11762.,11762.
• Parties: KAHANEK v. KAHANEK.

192 S.W.2d 174

KAHANEK v. KAHANEK.

No. 11762.

Court of Civil Appeals of Texas. Galveston.

January 16, 1946.

Appeal from District Court, Lavaca County; Lester Holt, Judge.

Suit by Albert Kahanek against Joe Kahanek, to reform a deed. From a judgment for the defendant, the plaintiff appeals.

Affirmed.

C. C. Jopling, of LaGrange, for appellant.

Hollis Massey and John A. Hancher, both of Columbus, for appellee.

GRAVES, Justice.

"Appellant filed suit on February 6, 1945, to reform a deed he had executed on the 25th of November, 1929, in favor of appellee. He alleged an agreement that he was to reserve one-half of the royalties on all minerals under the tract of 88.88 acres of land in Lavaca County, Texas, covered by the deed. The alleged grounds for reformation were: (1) mutual mistake, or, in the alternative, (2) mistake on his part, and fraud on the part of appellee, in failing to bring home to him knowledge of such alleged mistake.

"Appellee pleaded, among other things, general denial and the four-year statute of limitation.

"The case was heard by a jury, and, at the close of the appellant's evidence, the appellee filed a motion for an instructed verdict, or that the court discharge the jury, and render judgment for the appellee.

"The court sustained the motion of appellee, discharged the jury, and rendered a judgment in appellee's favor."

Although this judgment does not specifically so recite, it is apparent that the court so withdrew the case from the jury and rendered its judgment in appellee's favor at the close of appellant's testimony only, upon its conclusion that his declared-upon cause of action had been conclusively shown to be barred by the four-year statute of limitation (Vernon's Texas Civil Statutes, Article 5529) at the time the suit was filed.

Inveighing here against the judgment so adverse to him below, appellant's points of error are, in substance, that the court erred in holding his cause to have been so barred, as a matter of law, as against his right to have it submitted to a jury upon all the issues raised in his favor by the pleadings and evidence, because (1) an issue of fact was raised over whether or not he had used that degree of diligence that a person of ordinary prudence would have used—under the same or similar circumstances —to discover the mistake so alleged by him, between the date of his deed and the date the evidence showed he actually made such discovery; that is, that the deed had not in fact contained the recitation for his benefit of 1/2 of 1/8 of the minerals in the land; (2) the court further erred in holding that the cited statute of limitation, Article 5529, began to run against him on the date of the execution of his deed, November 25 of 1929; (3) that the court likewise erred in holding that the appellant had been charged as a matter of law, he being the grantor therein, with knowledge of the contents of his deed from the date of its execution, and that it did not contain the agreement he declared upon to have been then made by the parties as to the division of the royalties.

He cites in support, these, among other authorities: Albany City Savings Inst. v. Burdick, 87 N.Y. 40; Chatham v. Jones, 69 Tex. 744, 7 S.W. 600; Commercial Jewelry Co. v. Braczyk, Tex.Civ.App., 277 S.W. 754; Compagnie v. Victoria Mfg. Co., Tex. Civ.App., 107 S.W. 651; Conn v. Hagan, 93 Tex. 334, 55 S.W. 323; Cooper Gro. Co. v. Rowntree, Tex.Civ.App., 260 S.W. 333; Granger v. Kishi, Tex.Civ.App., 153 S.W. 1161; Kelley v. Ward, 94 Tex. 289, 60 S. W. 311, 313; Luginbyhl v. Thompson, Tex. Civ.App., 11 S.W.2d 380; Mason v. Peterson, Tex.Com.App., 250 S.W. 142, 143; Oldham v. Medearis, 90 Tex. 506, 39 S.W. 919; Pomeroy Equitable Jurisprudence, Vol. 2, p. 1748, Sec. 856.

It is determined that, in the state of this record, none of appellant's contentions should be sustained. It is found from the transcript and statement of facts, as tending to the contrary, (1) that appellant was shown to have admitted the discovery upon his part of the alleged mistake more than four years prior to the filing of his suit herein—that is, he testified to having discovered that the deed contained no such agreement as he declared upon "about 1940 or 1941", whereas this suit was not filed until February 6 of 1945; it was, therefore, plainly barred by that statute; Collins v. Griffith, Tex.Civ.App., 125 S.W. 2d 419; Jordon v. Concho Theatres, Tex. Civ.App., 160 S.W.2d 275; Neal v. Pickett, Tex.Com.App., 280 S.W. 748.

It is true that appellant's pleading and testimony thereto by himself set up, in avoidance of the rule these just-cited holdings apply, that he and the appellee discussed the absence of such agreement between them before he filed this suit, during which time the appellee admitted such to have been their agreement, and that he had been lulled thereby into a sense of security by appellee's promise then made to him that he would correct such mistake; in other words, that such assurances by the appellee had estopped the latter from pleading the otherwise existing bar of the statute.

It indisputably appears, however, that appellant's own testimony further shows that he had last so...