Texas Osage Cooperative Royalty Pool v. Colwell, 5803.
| Decision Date | 22 September 1947 |
| Docket Number | No. 5803.,5803. |
| Citation | 205 S.W.2d 93 |
| Parties | TEXAS OSAGE COOPERATIVE ROYALTY POOL, Inc., et al. v. COLWELL et ux. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hale County; C. D. Russell, Judge.
Action by Texas Osage Cooperative Royalty Pool, Inc., and another, against A. B. Colwell and wife, in trespass to try title to recover undivided half interest in oil and gas and other minerals on certain land, to recover title to certain land because of alleged mistake in mineral deed, and for reformation of mineral deed and for title to undivided half interest to mineral rights in the land involved, wherein defendants sought judgment removing cloud on their title to the land. From a judgment for defendants, plaintiffs appeal.
Affirmed.
House, Mercer & Kaine, of San Antonio, and Frank R. Day, of Plainview, for appellants.
Griffin & Morehead, of Plainview, for appellees.
This suit was filed in three counts on November 29, 1946, by appellants, Texas Osage Cooperative Royalty Pool, Inc., and Flag Oil Company of Texas, a corporation, against appellees, A. B. Colwell and wife Myrtle Colwell, alleging in the first count a cause of action in trespass to try title to recover from appellees an undivided one-half interest in and to the oil, gas, and other minerals in, on and under the west 160 acres of land located in Section 16, Block S, Hale County, Texas; alleging in the second count title specifically to mineral rights by reason of a mineral deed executed by appellees on or about January 10, 1931, conveying to appellants an undivided one-half interest in the mineral rights to the west 160 acres situated in Section 16, Block P, Hale County, Texas, but that there was a latent ambiguity when the description in the mineral deed was applied to the ground, which would admit extrinsic evidence to prove that the property appellees intended to convey was Section 16, Block S, Hale County, Texas, and not that described in the deed and they prayed for judgment for the land appellees intended to convey to them; and alleging in the third count that appellees executed and delivered to appellants on or about January 10, 1931, a mineral deed conveying an undivided one-half interest in the minerals in, on and under the west 160 acres of Section 16, Block S, Hale County, Texas, but that through a mutual mistake and an error the land was described in the mineral deed as being the "West 160 acres of Section 16, Block P, Hale County, Texas" when in truth and in fact appellees intended to convey an undivided one-half mineral interest in the west 160 acres of Section 16, Block S, Hale County, Texas; that the mistake in the description of the land in the deed was made as a result of information or a misdescription of the land furnished appellants by appellees and that appellants did not discover the existence of the mistake until on or about May 4, 1946, and they prayed for judgment reforming the mineral deed and for title to an undivided one-half interest in the mineral rights to the west 160 acres of Section 16, Block S, Hale County, Texas.
Appellees answered with an exception to appellants' pleadings and said that any cause of action they may have had was barred by the four years statute of limitations. They further pleaded not guilty, a general denial, four years statute of limitation in bar of recovery; that the mineral deed was prepared by appellants and their agent which deed has been in the possession and under control of appellants since it was executed; that they have raised no question about it and done nothing to correct it for years and that they are therefore guilty of laches and stale demands in bringing the suit and should not recover; appellees prayed further for judgment removing the cloud on their title to the said land.
The case was tried to a jury and after the evidence closed both parties requested an instructed verdict. The trial court granted the request of appellees, took the case away from the jury and rendered judgment for appellees on the grounds that appellants' alleged cause of action was barred by the four years statute of limitations and removed the cloud from the title to appellees' land, from which judgment appellants perfected an appeal to this Court.
The record reveals that on January 10, 1931, appellees executed a mineral deed conveying to appellants an undivided one-half interest in and to all mineral interests in and under the west 160 acres of land, Section 16, Block P, Hale County, Texas; that there was not any Section 16 in Block P of Hale County; that there were several other blocks in Hale County which did have a Section 16 therein; that appellees owned and since 1924, had occupied as a homestead the west 160 acres of Section 16, Block S, in Hale County, Texas; that the deed in question was not prepared by appellees and that appellees did not furnish a description of the land in question to appellants whose agent, Jones, prepared the deed and presented it to appellees for execution; that appellees did not see the deed from the time it was executed until some 15 years thereafter but that it had been in the custody and under the control of appellants, who had it recorded in Hale County on September 3, 1931; that it was the duty of appellants' agent, J. R. Klump, to check the preparation of such deeds and to check the area in which the land was located and to send the deeds to the proper place to be recorded; that he examined the Colwell deed in question and as appellants' agent relied on its contents; that he had it recorded in Hale County, after which it was returned to him for appellants' files where it remained.
We think a suit to correct or reform a deed because of latent ambiguity or mutual mistake and one in trespass to try title can be brought in the same proceeding. But before the land or mineral rights can be recovered in such a proceeding, there must be a satisfactory showing under the law that the deed in question should be corrected or reformed because of latent ambiguity or mutual mistake.
The deed in question here purports to convey an undivided one-half of the mineral rights "now owned by the grantors" in "Section 16, Block P, Hale County, Texas". The description is full,...
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