McKee v. Douglas

• Decision Date: 20 November 1962
• Docket Number: No. 7415,7415
• Citation: 362 S.W.2d 870
• Parties: Annie McKEE, a Widow, et al., Appellants, v. C. W. DOUGLAS and Jesse O. Douglas, Appellees
• Court: Texas Court of Appeals

Page 870

362 S.W.2d 870

Annie McKEE, a Widow, et al., Appellants, v. C. W. DOUGLAS and Jesse O. Douglas, Appellees.

No. 7415.

Court of Civil Appeals of Texas, Texarkana

Nov. 20, 1962.

Rehearing Denied Dec. 18, 1962.

Hollie McClain, Fulton & McClain, Gilmer, W. D. Brown, Quitman, for appellants.

Grover Sellers, Sulphur Springs, Turner, Rodgers, Winn, Scurlock & Terry, Dallas, for appellees.

FANNING, Justice.

This suit involves title to one-fourth of the mineral royalty interest under a 38 1/2 acre tract of land in Wood County, Texas. This tract was owned by I. A. McKee as his separate property, he having acquired it about six years prior to his marriage to Mrs. Annie McKee, one of the appellants in this cause. In a warranty deed, dated December 30, 1946, signed by I. A. McKee and wife, Annie McKee, the 38 1/2 acre tract was conveyed to C. W. Douglas and Jesse O. Douglas, the appellees herein. Contained in said deed was the following paragraph:

The grantors herein as a further consideration herein do hereby reserve unto themselves, an undivided 1/4th interest in and to all the royalty on all oil, gas and other minerals produced from said land described herein, together with the right of ingress and egress, with the understanding that the grantees herein shall have the right to lease said land for oil, gas and other minerals and collect the bonus or bonuses and all delay rentals under any such lease. Which interest shall be non-participating.

'It is understood that 1/2 of the royalty has heretofore been sold to G. D. Greer and this deed is made subject to said sale.'

On September 16, 1947, about 8 1/2 months after execution and delivery of the warranty deed above referred to, I. A. McKee executed and delivered to C. W. Douglas and son, Jesse Douglas, the following quoted instrument, referred to as 'affidavit':

"I. A. MCKEE TO THE PUBLIC

Affidavit

Dated: September 16th, 1947

Filed: September 16th, 1947

Recorded: Vol. 302, pg. 449

Deed Records, Wood County, Texas

#33718

AFFIDAVIT

"THE STATE OF TEXAS

"COUNTY OF WOOD}

"Before me, the undersigned authority, a Notary Public in and for Wood County, Texas, on this day personally appeared I. A. McKee, who after being duly sworn did depose and say:

"That he is the same I. A. McKee, Grantor in deed dated Dec. 30, 1946, to C. W. Douglas and Jesse O. Douglas, said deed being recorded in Vol. 289, page 322, Deed Records, Wood County, Texas, in which deed said I. A. McKee reserved 1/4 interest in all royalty on oil, gas and other minerals in and under 38 1/2 acres of the Oscar Engledow Survey in Wood County, Texas. That subsequent to the filing of said deed Affiant and Grantees in said deed have reached an agreement whereby the said I. A. McKee and wife, Annie McKee relinquish any and all claims to any part of the royalty, as described in said deed, and hereby declare the same to be the property of C. W. and Jesse O. Douglas, Grantees in said deed, and authorize the holder or holders of lease or leases on said land to pay the same to the said C. W. and Jesse O. Douglas, in full.

"I. A. McKee

"Subscribed and sworn to before me this 16th day of September, A. D. 1947.

"C. C. Ferguson

(seal) "Notary Public in and for Wood County, Texas."

Plaintiffs-appellants went to trial on their First Amended Original Petition, wherein they pleaded a count of trespass to try title, and alternatively pleaded that a mutual mistake was made in the instrument styled 'affidavit' by all parties to said instrument alleging that the mistake was that instead of stating in said instrument that 'the said I. A. McKee and Annie McKee relinquish any and all claims to any part of the royalty, as described in said deed * * * that the instrument should have read * * * relinquish any right or any and all claims to the rental payments.' Plaintiffs-appellants in this connection also pleaded 'that in truth and in fact, the plaintiff, Annie McKee's husband, and the defendants herein were mistaken and unaware of the language used in the instrument.' Plaintiffs-appellants, among other things, also pleaded alternatively that if the affidavit should be construed as a conveyance that the court should find that a constructive trust arose at the time of transfer, and that the defendants held the said interest in trust for plaintiffs.

Defendants responded to plaintiffs pleadings by pleading 'not guilty', a general denial and specifically pleaded the four year statute of limitation.

The trial court granted the motion of defendants for an instructed verdict and rendered a take nothing judgment against the plaintiffs. Plaintiffs-appellants have appealed.

We hold that as a matter of law that Defendants' Exhibit No. 1, styled 'Affidavit', and quoted above, was an instrument which conveyed title to the one-fourth royalty in the 38 1/2 acre tract in question from I. A. McKee to C. W. Douglas and Jesse O. Douglas. See the following authorities: Richardson v. Levi, 67 Tex. 359, 3 S.W. 444; Threadgill v. Bickerstaff, 87 Tex. 520, 29 S.W. 757; Young v. Rudd, Tex.Civ.App., 226 S.W.2d 469, wr.ref., n.r.e.

In Richardson v. Levi, supra, it is stated:

'A release may be used to convey a title to one who has no previous right in land, and is in most states equivalent to the word 'quitclaim."

In Threadgill v. Bickerstaff, supra, it is stated:

'The transfer of this deed by Baker to Seaborn Bickerstaff, with the clause, 'hereby relinquish unto the said Seaborn Bickerstaff all the privileges thereunto belonging,' conveyed to the latter all the right of Hiram Baker in the land.' In Young v. Rudd, supra, it is stated:

'No particular form is required in this state to convey title to land. Leal v. Leal, Tex.Civ.App., 4 S.W.2d 985, affirmed by the Supreme Court in [Tex.Com.App.], 14 S.W.2d 797; Baker v. Wescott, 73 Tex. 129, 11 S.W. 157. In Harlowe v. Hudgins, 84 Tex. 107, 19 S.W. 364, 365, it is said: 'No precise technical words are required to be used in creating a conveyance. The use of any words which amount to a present contract of bargain and sale is all sufficient. Whatever may be the inaccuracy of expression or the inaptness of the words used in an instrument, in a legal view, if the intention to pass the title can be discovered, the courts will give effect to it, and construe the words accordingly."

Therefore appellants' fourth point is overruled and appellees' counterpoint two in reply thereto is sustained.

We further hold that under this record plaintiffs-appellants' alternative plea seeking to avoid the effect of the 'affidavit' or quit-claim deed (Defendants' Exhibit 1) by virtue of an alleged mutual mistake was barred by Art. 5529, Vernon's Ann.Civ.St., the four year statute of limitation. See the following authorities: Hogan v. Price, Tex.Civ.App., 274 S.W.2d 745, 746, wr. ref. n.r.e.; La Neve v. Hinkson, Tex.Civ.App., 271 S.W.2d 467, wr. ref., n.r.e.; Hutchins v. Birdsong, Tex.Civ.App., 258 S.W.2d 218, wr. ref., n.r.e.; Kahanek v. Kahanek, Tex.Civ.App., 192 S.W.2d 174.

In Hogan v. Price, supra, it is stated:

'Applicable to the disposition of this limitation plea, sustained by the learned trial court, is the rule stated in Kahanek v. Kahanek, Tex.Civ.App., 192 S.W.2d 174, 176, with authorities there collated, namely: 'It is also settled that a distinction has been written into our Texas law under that statute, based upon whether the party seeking to correct the mistake is the grantor or the grantee; the rule being that if such actor be the grantor, then he is charged, as a matter of law, with knowledge of the contents of his deed from the date of its execution, and limitation begins to run against his action to correct it from that date.' See also Hutchins v. Birdsong, Tex.Civ.App., 258 S.W.2d 218. As the sole heirs and devisees of Hogan, the appellants stand in his shoes in the application of this rule.' (Emphasis added.)

In La Neve v. Hinkson, supra, it is stated:

'As a general proposition, one who executes an instrument is charged with knowledge of its contents and limitations begin to run from the time of its execution and one who acquires title to land by a deed is charged with notice of all instruments included in his chain of title, and the statute of limitation begins to run from the time he acquired title. Kennedy v. Brown, Tex.Civ.App., 113 S.W.2d 1018; Kahanek v. Kahanek, Tex.Civ.App., 192 S.W.2d 174. It is also well settled, however, that where the grantee, in an instrument in which land was included by mutual mistake of the parties, had said or done anything which would lull the grantor to sleep, limitation will not begin to run against the grantor until he discovers, or should have discovered, the mistake. Hutchins v. Birdsong, Tex.Civ.App., 258 S.W.2d 218, 222 (RNRE).'

* * *

* * *

'* * * Appellant has failed to show that she was lulled to sleep by the lessee in the questioned oil and gas lease, or by anyone representing him. If the fact of being misled by the joint lessors Hinkson and Dalton should be held to excuse appellant from discovering the alleged mistake, she has also failed to make such showing concerning them. She has failed to bring herself within the exception of the rule in the case of Hutchins v. Birdsong, supra, so as to prevent the running of the statute of limitation.'

Also in order to reform a deed for mutual mistake, the mistake must have been made by all parties to the instrument, 36 Tex.Jur., 746, 747; Tunnell v. Neill, Tex.Civ.App., 33 S.W.2d 530, it being the law that a unilateral mistake is not ground for affording relief to the party who was mistaken wherein the other party in no way induced it (36 Tex.Jur. p. 750), with the complaining party or parties not relying upon fraud or relying upon acts of the opposing party in 'lulling the complaining party or parties to sleep' before the limitation period expired.

It was on December 30, 1946, when I. A. McKee executed the deed to the Douglases in which the one-fourth royalty interest was reserved or...