Olvey v. Jones, 4982.

• Decision Date: 18 June 1936
• Docket Number: No. 4982.,4982.
• Citation: 95 S.W.2d 980
• Parties: OLVEY et al. v. JONES et al.
• Court: Texas Court of Appeals

95 S.W.2d 980

OLVEY et al. v. JONES et al.

No. 4982.

Court of Civil Appeals of Texas. Texarkana.

June 18, 1936.

Rehearing Denied July 2, 1936.

Appeal from District Court, Gregg County; D. S. Meredith, Judge.

Suit by Minnie Jones and others against J. W. Olvey and others. Judgment for plaintiffs, and defendants appeal.

Reversed and remanded.

Saye & Saye, of Longview, for appellants.

Chauncey & Chauncey, of Longview, for appellees.

SELLERS, Justice.

Minnie Jones and a number of others brought this suit against J. W. Olvey and others in trespass to try title and to reform a certain royalty contract, the material portions of which are as follows:

"* * * For and in consideration of the sum of Two Thousand Seven Hundred Fifty & No/100 Dollars ($2,750.00) cash in hand paid by J. W. Olvey, hereinafter called Grantee, the receipt of which is hereby acknowledged, have granted, sold, conveyed, assigned and delivered and by these presents do grant, sell, convey, assign and deliver unto the said Grantee an undivided one-half (1/2) interest in and to all of the oil, gas and other minerals in and under, and that may be produced from the following described land situated in Gregg County, Texas, to-wit: [Here follows field notes covering 83.23 acres, but which concludes with the following phrase, `Containing 55 acres, more or less'; and said description, after referring to a number of deeds, contains the further clause, `and includes any excess, if any.']

"Together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said land for oil, gas and other minerals, and removing the same therefrom.

"Said land being now under an oil and gas lease, executed in favor of B. A. Skipper and Clark Sample, it is understood and agreed that this sale is made subject to the terms of said lease, but covers and includes one-half (1/2) of all of the oil royalty, and gas rental or royalty due and to be paid under the terms of said lease.

"It is understood and agreed that one-half (1/2) of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to the said Grantee and in event that the above described lease for any reason becomes cancelled or forfeited, then and in that event an undivided one-half (1/2) of the lease interest and all future rentals on said land for oil, gas and other mineral privileges shall be owned by said Grantee, owning one-half (1/2) of all oil, gas and other minerals in and under said lands, together with one-half (1/2) interest in all future rents.

"To have and to hold the above described property, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said Grantee herein, his heirs and assigns forever; and we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said property unto the said Grantee herein, his heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof."

Plaintiffs allege that, at the time the above contract was executed, it was understood by all parties thereto that said tract of land only contained 55 acres, and that the description only described 55 acres, whereas the tract in fact contained and there was described 83.23 acres; that said land was conveyed by the acre and for a consideration of $100 per acre. It is further alleged that said contract was intended to convey only one-half the minerals under 55 acres for $2,750; same being $100 per acre for the interest intended to be conveyed. No other mistake was alleged in the execution of the contract. Plaintiffs in their petition further seek to recover from defendants the sum of $5,813.60 excess royalty paid by the lessee to defendants from production on 83.23 acres. In other words, plaintiffs contend that defendants were only entitled to 27.50/83.23 interest in the royalty payable under the lease rather than a one-half interest which they have been receiving. The lease admittedly covers 83.23 acres.

The defendants having answered, the cause was submitted to a jury on the following issues:

"No. 1: Find from a preponderance of the evidence how many acres the plaintiffs and the defendant J. W. Olvey believed were in the tract of land in question at the time the contract and mineral deed were signed by the parties. Answer...