Wilkins v. Dagle

• Decision Date: 30 October 1924
• Docket Number: (No. 1136.)
• Parties: WILKINS et al. v. DAGLE et ux.
• Court: Texas Court of Appeals

265 S.W. 918

WILKINS et al. v. DAGLE et ux.

(No. 1136.)

Court of Civil Appeals of Texas. Beaumont.

October 30, 1924.

Appeal from District Court, Liberty County; J. M. Combs, Judge.

Suit by A. R. Dagle and wife against A. D. Wilkins and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

J. Llewellyn, of Liberty, for appellants.

E. B. Pickett, Jr., of Liberty, for appellees.

WALKER, J.

This suit was instituted by appellees to reform and correct two deeds executed by them to appellants, one dated in February, 1919, and the other dated in March, 1919, the second executed as a correction of the first, and both describing the land conveyed as "an undivided four and one-half acres interest of all that tract or parcel of land," etc., giving a detailed description of the land. The deeds conveyed the land in fee simple and by general warranty. Appellees give in their brief the following statement of the nature of their petition:

"The appellees A. R. Dagle and Serena Dagle, husband and wife, by their first amended original petition, pleaded that on February 15, 1919, and for a long time prior thereto, they owned in fee simple a certain nine-acre tract of land in the west half of the Jesse Devore league, and that they and their family had for 20 years and more `actually occupied, used, and enjoyed said land and premises as their homestead, and without interruption or cessation have continued to do so.' That shortly before February 15, 1919, appellees negotiated with A. D. Wilkins, one of the appellants, relative to selling him `all the oil, gas, and other minerals in, upon, and under an undivided four and one-half acres in and to said nine-acre tract of land in the Devore league above described, and plaintiffs and said defendant concluded an agreement whereby said defendant was to buy and plaintiffs were to sell him such oil, gas, and other minerals in, upon, and under the said undivided four and one-half acres in said nine-acre tract of land; and in pursuance of such agreement, and to complete same, plaintiffs did on the 15th day of February, 1919, execute a certain written instrument in which the defendant A. D. Wilkins is named as grantee, and which is of record in volume 78, page 330, Liberty County Deed Records, and in executing said document it was the intention of plaintiffs to sell and convey to said defendant only the oil, gas, and other minerals in, upon, and under the said undivided interest of four and one-half acres of land in said nine-acre tract, but the written instrument as signed purports to convey to said defendant A. D. Wilkins an undivided four and one-half acres in fee simple of the said nine-acre tract of land, which was contrary to the purpose and intention of the plaintiffs in making and executing said instrument, and the said instrument, so now of record, as aforesaid, was incorrectly drawn up as a deed in fee simple by mistake, and it did not and does not express the mutual intent of the parties thereto, but was signed and executed by plaintiffs and acknowledged by them and received by the said defendant under a mutual mistake of fact as to the effect and contents of the said written document.' It was further alleged by appellees that they `agreed to sell and convey to said defendant Wilkins only all oil, gas, and other minerals in, upon, and under the undivided four and one-half acres in said nine-acre tract of land, and it was only such an interest in said land that the defendant had agreed to buy, and such interest only did he pay plaintiffs for, and the said written instrument should have been prepared and worded so as to convey to said Wilkins only that interest of the oil, gas, and other minerals in, upon, and under said land, and it was such a conveyance that plaintiffs intended to execute and believed they were executing when they signed and acknowledged said written instrument of date February 15, 1919, and now of record in volume 78, page 330, Liberty County Deed Records,' and `that after the execution of said written document, of date February 15, 1919, the defendant A. D. Wilkins requested of plaintiffs the execution of another document, representing that the same was needed to correct the habendum clause in the written document of date February 15, 1919, it being at this time represented to plaintiffs by said defendant that such one correction alone was necessary, and that otherwise the written document of date February 15, 1919, was worded so as to properly carry out the purpose and intention of the parties thereto, to wit, to convey to said Wilkins all oil, gas, and other minerals in, upon, and under an undivided interest of four and one-half acres in said nine-acre tract of land, and, believing that this second written instrument would make such a correction in the habendum clause only of the first document, the plaintiffs, executed another written instrument, of date March 21, 1919, and now of record in volume 85, page 368, Liberty County Deed Records, and this second written instrument is erroneous in the same respect as was the first instrument executed by plaintiffs, as above particularly alleged, and this incorrect wording and preparation of such second document was the result of the same mutual mistake or fraud on the part of the said defendant Wilkins as is above particularly alleged in reference to the first written instrument signed by plaintiffs of date February 15, 1919.' Appellees also pleaded in the alternative that the defendant Wilkins fraudulently procured the preparation and execution of said deed, but such issue of fraud was not raised by the evidence."

The defendants answered by general demurrer, general denial, and plea of innocent purchaser, and for partition of the land. The plea of innocent purchaser was not raised by the evidence.

The case was submitted to the jury on the following questions:

"Question No. 1. At the time of the execution and delivery of the deed in evidence before you, of date February 15, 1919, did the plaintiffs Mr. and Mrs. Dagle intend to sell and convey only the oil, gas, and other minerals in, upon, and under an undivided interest of four and one-half acres in the nine-acre tract of land described in plaintiff's petition?

"Question No. 2. At the time of the execution and delivery of the deed in evidence before you, of date February 15, 1919, did the defendant A. D. Wilkins intend to buy only the oil, gas, and other minerals in, upon, and under an undivided interest of four and one-half acres in the nine-acre tract of land described in plaintiffs' petition?

"Question No. 3. At the time of the execution and delivery of the deed in evidence before you, of date February 15, 1919, did the defendant A. D. Wilkins understand and intend to buy an undivided four and one-half acres in fee simple in the nine-acres of land described in plaintiffs' petition?

"Question No. 4. At the time of the execution and delivery of the deed dated February 15, 1919, did A. D. Palmer or A. R. Dagle understand that said deed conveyed the fee-simple title to the undivided interest of four and one-half acres in the nine-acre tract described in plaintiff's petition?"

The jury by its verdict answered "Yes" to said questions Nos 1 and 2, and answered "No" to questions Nos. 3 and 4.

Appellants' assignment of error, and the first, second, and third propositions thereunder, are as follows:

Assignment of error: "The court erred in failing and refusing to charge the jury to return a verdict for the defendants in this case as requested by the defendants in their requested special charge No. 1, a part of the record herein; the evidence being insufficient to support a judgment in favor of plaintiffs or entitle them to the relief sought and granted by the judgment entered herein."

Proposition No. 1: "Before the court would be authorized to enter judgment reforming the two deeds from plaintiffs to Wilkins it was incumbent upon the plaintiffs to plead and prove by a preponderance of the evidence that the parties actually made a definite and certain agreement other and different from the one evidenced by the deeds in question; that their minds actually met on the terms of an agreement which was not evidenced by either of the deeds."

Proposition No. 2: "Where no fraud is shown, it must affirmatively appear from the pleadings and the proof that both parties to the written deeds must have misunderstood the terms of the instrument; they must have been mutually mistaken as to the terms and effect of the instruments passed."

Proposition No. 3: "Where no fraud or imposition is shown; full opportunity to know or ascertain the terms and effect of instrument solemnly executed; no claim by pleadings or proof that same would not have been executed for the consideration received, even if fully understood, presents no such situation as will be relieved against by a court of equity, which favors only the diligent and those who come with clean hands."

As appellants filed no objections to the questions as submitted to the jury, nor moved to set aside the jury's verdict thereon, and have no assignment here that the answers are against the weight of the evidence, we cannot consider any proposition raising that issue. Taylor v. Davis (Tex. Civ. App.) 234 S. W. 106. This court said, in Railway Co. v. McGown, 239 S. W. 282, citing a number of authorities:

"As appellant did not except to the issues submitted to the jury, requiring them to find the amount of appellee's damages, and as he made no motion to set aside their findings on that issue and as he did not except to such findings in his motion for new trial, he cannot now inquire into the sufficiency of the evidence to sustain such finding."

But under their request for an instructed verdict appellants can raise the issue that there was no evidence to carry these questions to the jury. Appellees make the following statement of the evidence as against an instructed verdict:

"The nine acres of land...