Luginbyhl v. Thompson
| Decision Date | 18 April 1928 |
| Docket Number | (No. 2986.) |
| Citation | 11 S.W.2d 380 |
| Parties | LUGINBYHL et al. v. THOMPSON.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Hutchinson County; Newton P. Willis, Judge.
Suit by R. Edgar Thompson against O. W. Luginbyhl and others, wherein defendants filed a cross-action. Judgment for plaintiff, and defendants appeal. Affirmed.
Aynesworth & Lackey, of Stinnett, and Taylor, Muse & Taylor, of Wichita Falls, for appellants.
Umprhres, Mood & Clayton and Wm. Boyce, all of Amarillo, for appellee.
This suit was instituted in the district court of Hutchinson county, Tex., by R. Edgar Thompson, the appellee, to recover from O. W. Luginbyhl and his wife, Cleo Luginbyhl, and F. M. Luginbyhl, the appellants, the oil, gas, and mineral rights in and under the north one-half of survey No. 27, block M-23, Texas Central Railroad Company land in Hutchinson county, Tex.
The appellee sues in trespass to try title, and also alleges:
That on October 24, 1919, he was the owner of all of survey No. 27, block M-23, Hutchinson county, Tex., and that on said date he and O. W. Luginbyhl entered into a written contract, by the terms of which appellee agreed to convey said survey No. 27 to O. W. Luginbyhl, upon the terms and for the consideration therein expressed. That, among other things, said contract expressly provided that the title to all the oil, gas, and minerals on the north one-half of survey No. 27 were reserved, and that such reservation should be specified in the deed conveying said section 27 to O. W. Luginbyhl. A copy of said contract is attached to appellee's petition and made a part thereof.
That on or about July 23, 1920, in consummation of the aforesaid contract, the appellee made, executed, and delivered to O. W. Luginbyhl a warranty deed, which purported to convey said entire survey No. 27, and contained no provision reserving the oil, gas, and minerals on the north one-half thereof to appellee, as provided in the contract. That it was the intention of the parties to convey the land in compliance with the terms and provisions of the contract, and the omission in the deed to reserve from said conveyance the oil, gas, and mineral rights in the north half of said survey was unintentional and due to the mutual mistake on the part of appellee and O. W. Luginbyhl, and of the scrivener who drew the instrument. That such deed was executed and delivered under such mutual mistake, without notice or knowledge on the part of either party thereto. That, if appellee is mistaken in the allegation that the omission from the deed was due to a mutual mistake, then he alleges that he himself was mistaken as to the contents of said instrument, and, if O. W. Luginbyhl had knowledge of such mistake at the time of the delivery of the deed, he did not mention such fact, but fraudulently concealed it from appellee. That appellee did not discover said mistake until in the month of May, 1926. That his failure to discover said mistake prior to that time was not due to negligence or a failure to exercise ordinary care in such matter. That, between the date of the contract made with O. W. Luginbyhl and the date of the deed to O. W. Luginbyhl, appellee leased the oil, gas, and mineral rights on the north half of said section 27 to Harry D. Day, for a period of ten years. That such lease was made with the knowledge and consent of O. W. Luginbyhl. That, at the time the deed was executed, the land was still under said lease, and the lessee thereunder continued to pay the rentals to appellee with the knowledge and consent of, and without objection by, O. W. Luginbyhl. That, some time during the month of May, 1926, the lease to Harry D. Day, or a large portion thereof, was forfeited for nonpayment of rentals, and appellee entered into a contract with the Gulf Production Company, to lease such forfeited portion to it. That he furnished an abstract to said purchaser, and, upon an examination thereof, he was advised by the purchaser that in the deed to O. W. Luginbyhl he had conveyed the oil, gas, and mineral rights on the north half of said section 27, and that this was the first notice or knowledge he had of the mistake. That he immediately called the attention of O. W. Luginbyhl to said mistake, who promised then and at various times thereafter to correct such mistake, but finally failed and refused to do so. That, immediately after appellee called the attention of O. W. Luginbyhl to the mistake in the deed of conveyance, he, joined by his wife, executed and delivered to F. M. Luginbyhl a purported oil and gas lease to the north half of said section No. 27, less 20 acres thereof. That F. M. Luginbyhl, at the time, had notice of appellee's claim to the mineral rights on and under said land, and said lease from O. W. Luginbyhl and wife to F. M. Luginbyhl was executed, delivered, and received with full knowledge and notice of appellee's claim, and for the purpose of defrauding appellee of his rights.
That, if appellee be mistaken in alleging that F. M. Luginbyhl had notice of the claim of appellee, and took under such circumstances as to defeat appellee's title to the minerals, then, and in such event, he asked for damages against O. W. Luginbyhl in the sum of $32,000.
Appellee sought to reform the deed to O. W. Luginbyhl, cancel the purported lease from O. W. Luginbyhl and wife to F. M. Luginbyhl, and, in the alternative, to recover damages against O. W. Luginbyhl in the sum of $32,000.
The appellants answered by general demurrer, special exceptions, general denial, pleaded that the written contract between appellee and O. W. Luginbyhl had been abandoned before the execution of the deed; that appellee, by the exercise of ordinary care, could and would have discovered the mistake at the time of the execution of the deed, and the statutes of three, four, five, and ten years' limitation, and cross-action against appellee to recover title and possession of the oil, gas, and mineral rights under the north half of said section 27, and to confirm and quiet title in O. W. Luginbyhl.
In response to special issues submitted by the court, the jury found, in effect, that it was the intention and agreement of appellee and O. W. Luginbyhl, at the time the deed was executed, that such deed should reserve the oil, gas, and mineral rights in the north half of said section 27 to appellee; that said parties unintentionally, and by mutual mistake, failed to insert in the deed the clause reserving to appellee the oil, gas, and mineral rights on said land; that appellee did not discover that the deed did not contain the...
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Sullivan v. Barnett
...deed omitting an intended mineral reservation was reformed in a suit filed 12 years after date of the deed; Luginbyhl v. Thompson, 11 S.W.2d 380 (Tex.Civ.App., 1928, writ dism.), in which a grantor's deed omitting an intended mineral reservation was reformed in a suit filed more than six ye......
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...Tex.Civ.App. 312, 110 S.W. 970; Smalley v. Vogt, Tex.Civ.App., 166 S.W. 1; Stone v. Burns, Tex.Civ.App., 200 S.W. 1121; Luginbyhl v. Thompson, Tex.Civ.App., 11 S.W.2d 380; McCord v. Bailey, Tex.Civ.App., 200 S.W.2d We hold that the evidence does not show, as a matter of law, that appellees'......
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...to assure himself that his mineral rights had been reserved. The Kennedy court distinguished the earlier case of Luginbyhl v. Thompson, 11 S.W.2d 380, 382 (Tex.Civ.App.1928), in which reformation had been granted and affirmed on appeal, explaining as follows: The effect of our holding in th......
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