Tunnell v. Neill

• Decision Date: 05 December 1930
• Docket Number: No. 3919.,3919.
• Citation: 33 S.W.2d 530
• Parties: TUNNELL v. NEILL et al.
• Court: Texas Court of Appeals

33 S.W.2d 530

TUNNELL v. NEILL et al.

No. 3919.

Court of Civil Appeals of Texas. Texarkana.

December 5, 1930.

Rehearing Denied December 11, 1930.

Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.

Suit by Mrs. Exa Neill and others against A. Glover Tunnell. From the judgment, both parties appeal.

Reversed and remanded.

Read, Lowrance & Bates, of Dallas, for appellant.

Wynne & Wynne, of Wills Point, for appellees.

HODGES, J.

This is a suit to reform a deed and recover an undivided one-half interest in the mineral rights in a tract of fifty acres of land situated in Van Zandt county. The land formerly belonged to J. W. Neill and his wife, Mrs. Exa Neill. It was incumbered with liens for debts aggregating approximately $1,800. A part of those debts were due on notes held by the appellant, A. Glover Tunnell. On November 25, 1921, Neill and wife executed a deed conveying the land to the appellant in consideration of the cancellation of the notes held by him and his assumption of other notes for which the land was mortgaged. In addition to the usual granting clause conveying the land, the deed contained the following: "It is further agreed and understood that I reserve to J. W. Neill 1/16 of the oil royalty on the above described real estate so long as I hold same in my possession." Some time later J. W. Neill died, leaving his wife and several minor children. In July, 1929, Mrs. Neill and her children filed this suit against the appellant to reform that portion of the deed which is quoted above upon the grounds of a mutual mistake. The petition alleged that the real contract upon which the deed was based was that the grantors should retain one-half of all the mineral rights in fee in the land, and that it was intended that such a reservation should be written into the deed. The defendant, Tunnell, answered generally and specifically, and also pleaded the four-year statute of limitation. The court submitted several special issues to the jury, in response to which the jury found as follows:

"1. That there was a mutual mistake of all parties to the deed as to the proportion of the royalty retained in the deed.

"2. That at the time of the execution and delivery of the deed, the defendant A. Glover Tunnell understood that the deed reserved one-half of all minerals instead of 1/16 of the oil royalties as written in the deed.

"3. That Neill and wife did not know at the time they executed the deed that it contained the provision as written in the deed with reference to the minerals and oil royalty.

"4. That the notary public did not read to Mrs. Neill the provision as written in the deed with reference to the minerals and oil royalty.

"5. That the notary public represented and explained to Mrs. Neill and J. W. Neill that the provision in the deed with reference to the minerals reserved to them a one-half of the minerals and royalty instead of 1/16 as written therein.

"6. That the notary public represented and explained to Mrs. Neill and her husband that the provision in the deed with reference to the minerals reserved to them one-half instead of 1/16 as written therein.

"7. That J. W. Neill did not know prior to his death that the deed in question only reserved a 1/16 oil royalty as written in the deed."

The jury also found that J. W. Neill and Mrs. Neill could not, by the exercise of reasonable diligence at any time prior to four years of the filing of this suit, have known that the deed only reserved one-sixteenth oil royalty instead of one-half, as claimed by plaintiffs. Upon those findings, the court entered a judgment reforming the deed as to the oil reservation so as to read as follows: "That I reserve to J. W. Neill one-half of the oil royalty on the above described real estate so long as defendant A. G. Tunnell holds same in his possession."

Both parties are urging objections to that judgment. Tunnell, the defendant below, appellant here, contends that under the evidence the court should have instructed the jury to return a verdict in his favor upon two grounds; (1) Because it conclusively appeared from the evidence that the plaintiffs' cause of action, if they ever had any, was barred by the four-year statute of limitation; and (2) because under the evidence the plaintiffs were not entitled to any reformation of the deed so as to change the language originally written therein. The appellees, plaintiffs below, insist that under the evidence and answers of the jury the deed should have been so reformed as to express a reservation to the grantors of one-half of the mineral rights in the land in fee without any limitation.

It appears from the evidence that, when the deed was originally written, it was an absolute conveyance of the land in fee. When presented for her signature, Mrs. Neill objected to signing the deed without some reservation of the mineral rights. The notary who wrote the deed and took her acknowledgment testified: "The best I remember, I wrote the deed, carried the deed I drew over with me at night and they executed it next morning—J. W. Neill and his wife, Exa Neill, were there at the store. Yes, after I had written the deed one day and had brought it back to the store next morning there was a clause added in that deed. I wrote the clause in the deed. This is the clause I wrote in the deed after I brought it back to the store. After I came back to the store that morning J. W. Neill and his wife had discussed the royalty clause and wanted that added and I added the clause and that is what they agreed upon. After I had written that clause in there, Mr. J. W. Neill signed the deed and his wife, Exa Neill, signed the deed—I read the clause to Mrs. Neill and explained to her that it provided for 1/16 royalty. That clause is written in the deed in blue ink; the balance of the deed is in black ink."

On cross-examination the witness testified: "I wrote the clause in the deed at the suggestion of the Neills. Possibly the intent of the deed I drew was to reserve to J. W. Neill and wife one-half of the royalty—there wasn't anything said about mineral interests at all when the deed was written, they had me write 1/16. I possibly told Mrs. Neill that meant one-half of the royalty."

On redirect examination the witness said: "I just added to the deed on that morning the language they requested me to add; I wrote it in the deed at the suggestion of both Mr. and Mrs. Neill, wrote what they wanted put in it. I suppose they both knew the language I used in the clause,— Yes, they heard the language. They talked it over next morning and wanted the royalty clause put in and I said, `All right, call out what you want, I will add it in,' and they called it out and I added it in there at their suggestion. I don't remember whether anything was said there about one-half of the mineral rights, I just remember...