Olvey v. Jones, 1873-7688.

• Decision Date: 26 November 1941
• Docket Number: No. 1873-7688.,1873-7688.
• Citation: 156 S.W.2d 977
• Parties: OLVEY et al. v. JONES et al.
• Court: Texas Supreme Court

156 S.W.2d 977

OLVEY et al. v. JONES et al.

No. 1873-7688.

Commission of Appeals of Texas, Section B.

November 26, 1941.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action in trespass by Mrs. Minnie C. Jones and others against J. W. Olvey and others to try title and to reform a mineral deed executed by the plaintiffs to the named defendant, and for recovery of certain oil royalties collected by defendants. To review a judgment of the Court of Civil Appeals, 134 S.W.2d 845, which affirmed a judgment for plaintiffs, defendants bring error.

Affirmed.

Saye & Saye, of Longview, for plaintiffs in error.

W. B. Chauncey, of Wichita Falls, Bramlette, Levy & Dotson, of Longview, and Ireland Graves, of Austin, for defendants in error.

SLATTON, Commissioner.

This suit is brought to reform a certain mineral deed and to recover oil royalty paid under the contract sought to be reformed. Judgment granting reformation of the deed and recovery for the oil royalty was reversed and remanded by the Texarkana Court of Civil Appeals. 95 S.W. 2d 980. Amended pleadings were filed by the parties in the trial court and after a jury trial judgment was again rendered by the trial court granting reformation of the mineral deed and a recovery of the oil royalty. The cause was appealed to the Court of Civil Appeals at Texarkana and the judgment of the trial court was affirmed. 134 S.W.2d 845. This court granted the writ of error.

The deed was sought to be reformed upon the ground of mutual mistake, in that the agreement of the parties was that the vendors sold and the vendee purchased by the acre an undivided interest in 27½ royalty acres in the tract of land described for a consideration of $100 per acre; that the parties believed the tract of land described contained 55 acres, when in fact it contained 83.23 acres; that because of the mistaken belief of the parties that the tract contained 55 acres, the parties erroneously described the fractional interest as an undivided one-half interest in the tract of land, thus causing the deed to convey an undivided interest of 41.615 acres instead of 27½ royalty acres purchased and intended to be conveyed; that an undivided 27.50/83.23 interest in the tract of land correctly described the interest bought and intended to be conveyed. The jury made the following findings:

1. At the time the contract and deed were executed the grantors and the grantee believed that the tract contained 55 acres.

2. The grantors sold and the grantee purchased the minerals on a per acre basis.

3. The grantors did not intend to sell nor did the grantee intend to buy one-half of the minerals for $2,750 regardless of acreage.

4. The grantors intended to sell and the grantee intended to buy the oil, gas and other minerals in and under an undivided interest of 27½ acres, subject to the oil leases.

5. Mrs. Minnie Jones, at the time she signed the division order to the oil company, did not intend to ratify the mineral deed, regardless of the fact that the tract of land contained 83.23 acres. The other plaintiffs, grantors in the mineral deed, did not know on September 27, 1935, that Mrs. Minnie Jones signed the division order of that date to the oil company.

Plaintiffs in error by their first proposition contend that by the use of the phrase "and includes any excess, if any" in the mineral deed the parties thereby precluded the theory that said mineral interest was sold on an acreage basis at a stipulated price per acre and without alleging and proving that said phrase was inserted in the deed by a mutual mistake, the defendants in error are not entitled to a reformation of the deed. The deed sought to be reformed provided in part as follows:

"For and in consideration of the sum of Twenty-seven Hundred Fifty Dollars ($2750.00) cash in hand paid by J. W. Olvey, the receipt of which is acknowledged, the grantors have granted, sold, conveyed, assigned and delivered, and by these presents do grant, sell, convey and deliver unto the said grantee an undivided one-half interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described tract of land (the land is then described by metes and bounds) containing 55 acres of land more or less".

Reference is then made to other deeds and is followed by the following: "And being the same land conveyed by Russell Fenton et al. to J. H. Jones by deed dated February 6, 1908, recorded in Book W, p. 153, and includes any excess, if any."

The mineral deed both before and after reformation clearly shows that the parties did not intend that it should operate as a conveyance of an entire interest in the minerals. It indisputably appears that the interest intended to be conveyed by the instrument was a fractional interest of the royalty. If the vendors intended to sell and the vendee intended to buy a fractional interest in the royalty in the amount of 27½ acres and by mutual mistake conveyed a greater interest than that intended, the vendors are entitled to have the instrument reformed so that it will speak the true agreement of the parties. Kelley v. Ward, 94 Tex. 289, 60 S.W. 311; Norris v. W. C. Belcher Land Mortg. Co., 98 Tex. 176, 82 S.W. 500, 83 S.W. 799; Pegues v. Dilworth, 134 Tex. 169, 132 S.W.2d 582; Laufer v. Moppins, 44 Tex.Civ.App. 472, 99 S.W. 109; Henenberg v. Winn, Tex. Civ.App., 1 S.W.2d 432, writ refused; Pomeroy's Equity Jurisprudence, Vol. 5, Sec. 2096.

On the other hand, if the parties agreed upon a sale of an undivided onehalf interest in the royalty under the tract of land, the vendee is entitled to retain such interest even though the parties may have believed that the one-half interest contained only 27½ acres; and in the event of a material mistake with respect to acreage would entitle the vendors to recover additional consideration or to have partition, or under some circumstances to have the contract rescinded. However, in such a case, the vendors would not be entitled to reformation, since the contract expresses the true agreement.

It is apparent, therefore, that the questions to be determined in this case are whether the parties agreed upon a sale of the undivided mineral interest to the extent of 27½ royalty acres under the tract of land or upon a sale of an undivided one-half interest in the royalty under the tract of land. Both questions have been determined by the jury in favor of the vendors and against the vendee, as shown by the jury findings quoted above. There is no contention made in this case that the pleadings and proof do not support the findings of the jury. The attack here made is that because of the phrase "and includes any excess, if any" appearing in the descriptive part of the mineral deed the parties are precluded from pleading and proving that the sale was by the acre at the price of $100 per acre in the amount of 27½ acres and not a sale in gross; and that the vendors are not entitled to reformation of the mineral deed without pleading and proving that the quoted phrase was incorporated in the deed by a mutual mistake of the parties. In our opinion, neither contention may be properly sustained. In the case of Wheeler v. Boyd, 69 Tex. 293, 6 S.W. 614, 617, Mr. Justice Gaines, speaking for the Court, said:

"It is insisted, also, that if the parties to the transaction were mutually mistaken as to the quantity of the land, defendant is entitled to claim no abatement of the purchase money. The authorities are not in accord upon this question; but we think the decisions of this court recognize that even in a case where the land is sold in gross, and the quantity stated in the conveyance is qualified by the words `more or less', the purchaser will be relieved in equity, if the deficiency be great. The disparity being gross between the quantity believed by both parties to exist, and that which is found actually to exist, and both having been mutually mistaken, and the quantity being a material element of inducement in the sale, it is but equitable to let the purchaser retain his bargain, and to relieve him from payment for that which he does not get. O'Connell v. Duke, 29 Tex. 299 ; Smith v. Fly, 24 Tex. 345 ; Walling v. Kinnard, 10 Tex. 508 ; Mitchell v. Zimmerman, 4 Tex. 75 ."

(Note: A material variance is noted in the above quotation appearing in the South Western Reporter and the official State Reports....