Texas Osage Co-Operative Royalty Pool v. Garcia, 11369.

• Decision Date: 24 November 1943
• Docket Number: No. 11369.,11369.
• Citation: Texas Osage Co-Operative Royalty Pool v. Garcia, 176 S.W.2d 798 (Tex. App. 1943)
• Parties: TEXAS OSAGE CO-OPERATIVE ROYALTY POOL et al. v. GARCIA.
• Court: Texas Court of Appeals

176 S.W.2d 798

TEXAS OSAGE CO-OPERATIVE ROYALTY POOL et al. v. GARCIA.

No. 11369.

Court of Civil Appeals of Texas. San Antonio.

November 24, 1943.

Appeal from District Court, Starr County; L. Broeter, Judge.

Suit by M. M. Garcia against the Texas Osage Co-Operative Royalty Pool, Inc., and others for reformation of a deed. Decree for plaintiff, and defendants appeal.

Affirmed.

House, Mercer, Edwards & Irvin, of San Antonio, for appellants.

Bismark Pope, of Laredo, and John A. Pope, Jr., of Rio Grande City, for appellee.

NORVELL, Justice.

This is a suit for reformation of a deed. On December 5, 1930, M. M. Garcia and wife conveyed to the trustees of Texas Osage Co-operative Royalty Pool (an express trust) and Flag Oil Company of Texas, an undivided one-half interest in and to all the oil, gas, sulphur and other minerals of whatsoever kind and nature under certain lands located in Starr County, Texas, and described in the deed as follows: "1280 acres of land, known as Sur. # 918, Cert. # 1921, Abst. # 656. George W. Lowe being the original grantee. This being the same land purchased by grantor from Josefa P. de Marks, June 24th, 1909, and Manuel Guerra July 20th, 1909. First above mentioned deed recorded in Vol. 31, Pages 98-99. Second above mentioned deed recorded in Vol. 30, Pages 361 & 362. Deed Records of Starr County."

The description above set out was written in longhand into a printed form of a deed. Immediately following this longhand description and in the printed part of the deed the following appears: "it being mutually understood and agreed that this conveyance is to cover all lands now owned by the grantors in the above stipulated surveys, whether herein properly described or not; and containing 1280 (figures inserted in blank space) acres, more or less. * * *" We might say here that the description above set out covers all of Survey No. 918. Appellants have cited numerous cases dealing with the construction of deeds, but as we understand it appellee does not deny that the description as written would operate to convey an undivided one-half of the minerals under the entire survey. The position of the appellee, M. M. Garcia, is that the sale of minerals evidenced and effected by the deed he now seeks to reform was made on an acreage basis. He sued appellants Texas Osage Co-operative Royalty Pool, Inc. (the corporate successor to the express trust) and Flag Oil Company of Texas, alleging that at the time of the execution of the mineral deed, all parties were mutually mistaken as to the acreage contained in Survey No. 918, in that they believed that it contained 1,280 acres, whereas, in truth and in fact, the survey contained 1,378.11 acres. This excess was discovered in 1939 or 1940, when a resurvey showed an excess of 98.11 acres. For this excess Garcia secured a deed of acquittance from the State of Texas on October 22, 1940. See Article 5421c—1, Vernon's Ann.Civ.Stats.

The trial was to the court without a jury and upon request findings of fact and conclusions of law were filed.

The trial court in its decree reformed the mineral deed so that the mineral interest acquired by appellants was limited to 1,280 acres out of the survey, and under appropriate pleading directed a partition of the mineral interests under the lands of the survey. This would cause to be set aside to Garcia the mineral interests under 98.11 acres free and clear of all claims of appellants.

In Olvey v. Jones, 137 Tex. 639, 156 S. W.2d 977, the Supreme Court allowed relief by way of reformation under a fact situation similar to that disclosed by the pleadings in this case. We regard that case as largely controlling here. Appellants presented twelve points in their brief, but, as we view it, only two contentions presented by said points need be discussed. Certain points urged would be applicable to a suit for rescission but have no application to a suit for reformation.

The first contention presented is that the evidence fails to support the trial court's finding that the sale of minerals evidenced by the deed sought to be reformed was made on a per acre basis.

The opinion of the Supreme Court in Olvey v. Jones sets out the jury's findings in that case. The trial court here found, inter alia,

"That the mineral deed dated December 5, 1930, which now appears of record in Book 66, pages 585 and 586, of the deed records of Starr County, Texas, was through mutual mistake of all of the parties so prepared so as to purport to convey a full one-half interest in all minerals under such survey, whether more or less than 1280 acres.

"That the offer and acceptance was for the conveyance of an undivided one-half interest in minerals under 1280 acres of land, on a per acreage basis by the payment therefor in headrights of one for each one-half interest in the minerals under each 640 acres of land, or a total of two headrights.

"That it was the intention of the parties to the transaction, at the time, to convey exactly 640 mineral acres, or an undivided one-half interest in 1280 acres of land for two full headrights."

The trust agreement of Texas Osage Co-operative Royalty Pool (the express trust) was introduced in evidence. The eleventh paragraph thereof reads as follows: "Eleventh. The trustees hereunder shall issue participation certificates for one full share or headright in this trust in exchange for a full one-half interest in and to the oil, gas and other mineral interests in and under Six...