February 9, 1934. Rehearing Denied March 8, 1934.
Appeal from District Court, Gregg County; J. B. Hatchitt, Judge.
Suit by W. M. Burress against D. H. Byrd and others. From an adverse judgment, plaintiff appeals.
Reversed and rendered.
The appellant brought the suit for decree of reformation of a conveyance executed by the appellee D. H. Byrd to appellant, of date January 29, 1931. The instrument reads, as material to state:
"State of Texas, County of Gregg.
"Know All Men By These Presents:
"That D. H. Byrd of Gregg County, Texas, for and in consideration of the sum of Ten Dollars ($10.00) cash in hand paid by W. M. Burress, the receipt of which is hereby acknowledged, have granted, sold, conveyed, assigned and delivered * * * unto the said grantee, an undivided one-sixteenth interest in and to all 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:
"First tract: A part of the Dolores Sanches Survey in Gregg County, Texas, and described by metes and bounds, Beginning (here follows description), containing 80 acres of land, the same being a part of the land conveyed by R. B. Johnson and wife to W. F. Abbey on February 6, 1894. * * *
"Second tract: A part of the G. W. Hooper Survey in Gregg County, Texas, and known as part of Block No. 6, and described by metes and bounds, Beginning (here follows description), containing 230 acres, more or less."
The mistakes contained in the deed, as alleged, are: That the instrument was drawn "by mutual mistake and error so as to convey an undivided 1/16 interest in and to all of the oil" instead of "an undivided 1/8 interest as it was the mutual intention of both parties to draw the instrument." That in the field notes of the second tract described there was failure (omission) to copy and set out in the description the following exceptions: "Save and except 112 acres, more or less, heretofore sold to the McWherter Brothers, the deed for same being recorded in the Deed Records of Gregg County, Volume V, p. 429, and 47.3 acres heretofore sold to J. R. Castleberry, the deed to same being recorded in Deed Records of Gregg County, Volume Z, p. 495, leaving, as I understand, 151 acres of land, more or less." The instrument was sought to be made conformable to the alleged true agreement made between the parties, and through mutual mistake not truly revealed, that W. M. Burress was to be granted an undivided 1/8 interest in the oil and mineral rights in the two tracts of land, aggregating some 151 acres, the equivalent of about a 20-acre interest, for which he was to pay and did pay $20 an acre, or $400; that the instrument by mutual mistake and error shows, and does not conform to their real agreement, that W. M. Burress was to be granted an undivided 1/6 interest in the two tracts of land of description aggregating some 310 acres.
The case was submitted to the jury on special issues, which they answered:
"No. 1. Do you find from a preponderance of the evidence that W. M. Burress and Miss Clark both at the time the mineral deed was drawn had in mind and intended to convey to Burress substantially an undivided 20-acre interest in the minerals or royalty under Byrd and Frost's purchase from the Bacles? "
"No. 2. Do you find from a preponderance of the evidence that Jack Frost or D. H. Byrd or Miss Margaret Clark, or either of them, agreed that W. M. Burress was to have and pay for substantially an undivided 20-acre mineral interest under Byrd and Frost's purchase from the Bacles?"
"No. 3. Do you find from a preponderance of the evidence that both parties to this case made a mistake in inserting field notes in the deed from D. H. Byrd to W. M. Burress that called for 310 acres instead of 151 acres?"
"No. 4. Do you find from a preponderance of the evidence that both parties intended to describe in said deed the actual acreage conveyed by the Bacles to D. H. Byrd?"
"No. 5. Do you find from a preponderance of the evidence that D. H. Byrd and Jack Frost agreed to convey to W. M. Burress 1/4 only of whatever interest of royalty that they acquired from Arenva Virsno Bacle and her husband, J. W. Bacle?"
"No. 6. Do you find from a preponderance of the evidence that W. M. Burress represented to Jack Frost that he, W. M. Burress, was obligated to deliver a portion of the Bacle royalty to Bill Harvey?"
It appears that D. H. Byrd acquired the royalty interest in the lands from A. V. Bacle and her husband, J. W. Bacle, on January 13, 1931. These grantors conveyed to D. H. Byrd "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 lands," which were the same two tracts as contained in conveyance of D. H. Byrd of date January 29, 1931. Mrs. Bacle, as appears, was the surviving wife of H. G. Green, deceased. The land was acquired in the lifetime of H. G. Green from John C. Carter. As reflected by the record, in the deed from John C. Carter to H. G. Green following the description by metes and bounds appears the following: "In making this deed it is my intention to sell and convey to the said H. G. Green, all the land conveyed to me and my wife by W. F. Abbey and wife on October 15, 1897, which said conveyance is recorded in the Deed Records of Greags County, Texas, Save and except 112 acres, more or less, and 47.3 acres, more or less, leaving, as I understand, 151 acres of land, more or less."
It appears that at the time of the conveyance by Mrs. Bacle and her husband to D. H. Byrd they only claimed and represented that "we owned 151 acres," and not 230 acres, in the second tract.
The defendants' motion for judgment non obstante veredicto was granted, and judgment accordingly entered that the plaintiff take nothing by his suit, and that defendants take nothing by their cross-action.
There is evidence going fairly to show: That it was agreed that W. M. Burress was to have and pay for substantially an undivided 20-acre interest in the oil and minerals under the purchase from the Bacles; that in effect, by mere calculation, this amounted and was deemed substantially to be an undivided 1/8 interest in the purchase upon the basis of 151 acres, plus. That the Bacles represented and only claimed they owned 151 acres in the second tract. That the general description of the second tract granted as set forth in the conveyance to W. M. Burress is incomplete and erroneous in omitting exceptions from the grant of lands previously conveyed. That by oversight the exceptions were left out of the conveyance.
Carrigan, King Surles, of Longview, for appellant.
C. R. Crum, M. S. Church, and Prentice Wilson, all of Dallas, for appellees.
The point presented for decision on the appeal is that there was error "in rendering judgment non obstante veredicto, and in failing to render judgment for the plaintiff in accordance with the findings of the jury." It is believed in the circumstances of the case the disregarding of the verdict and entering a judgment against the plaintiff may not be deemed required, either because the facts found by the jury were immaterial, or because the plaintiffs as a matter of pure law was not entitled to a judgment. There was a finding by the jury that: (1) The true agreement concluded by the parties was that W. M. Burress was to have and pay for substantially an undivided 20-acre mineral interest in the estate purchased from the Bacles; and (2) that it was intended to have the conveyance to W. M. Burress grant an interest accurately described in the actual. acreage acquired by W. H. Byrd from the Bacles; and (3) that field notes as set out in the deed to W. M. Burress calling for 310 acres instead of 151 acres was inserted in the instrument through mistake. There is not the absence of any evidence to support the findings of the jury. It is quite affirmatively shown by evidence in behalf of appellant that it was agreed by the parties that W. M. Burress was to "cut in" or have and pay for an interest in the grant purchased from the Bacles to the value of $400 at $20 per acre, which amounted to an undivided 19.37-acre interest, or, as treated by the parties, substantially a 20-acre interest. And there is affirmative evidence in behalf of the appellant going to show that it was agreed by the parties that the grant to W. M. Burress of an interest should be a particular portion of the actual acreage acquired by D. H. Byrd from the Bacles. It is conclusively shown that the actual acreage owned and sold by the Bacles to D. H. Byrd, as respects the second tract in evidence, was 151 acres, and not 230 acres.
The acreage of 19.37 acres or substantially a 20-acre interest was, as appears, by mere computation, taken and deemed by the parties to constitute substantially the fractional part of 1/16 of 310 acres, or 1/8 of about 151 acres, plus. It may therefore be taken as established what the parties agreed to and understood the agreement to be, and that they both acted upon it, and undertook to make such conveyance as would make the agreement effective. It is evident, in view of the proof, that the deed made to appellant, prepared to carry out the purpose the parties had in mind and which was supposed they were making effective, was not effective to carry out the oral agreement. The description was not correct as to fractional part mentioned or quantity of acreage named in the second tract. There is manifest error therein, as relates to the second tract, of description, embracing an acreage of 230 acres, when less than that quantity was contracted for and purchased by D. H. Byrd. The particular description, although correctly described in other respects, is incomplete and erroneous in not excepting the lands previously sold. In order to adjust the misdescription to the actual conditions of fact is the real purpose of this suit. If the deed prepared is not effective to carry out the purpose the parties had in mind and which they supposed they were making effective, it should be corrected. The insertion of the exception in the conveyance would not defeat the real agreement of the parties, or make a new agreement of the parties, and could be effected without injustice to appellees. The general doctrine is firmly settled that a court of equity will grant affirmative relief as may be required by the circumstances from the consequences of any mistake of fact which is a material element of the transaction.
A "mistake," as defined, is "some unintentional act or omission or error arising from ignorance, surprise, imposition or misplaced confidence." 1 Story Eq. Jur. (14 Ed.) § 155, p. 146; Bishop Eq. § 185. See 2 Pomeroy Eq. Jur. (14 Ed.) 839, p. 1706.
The copying into an instrument of a merely incomplete description of the property as to quantity of land contracted for and purchased may, as between the parties, be treated as a mistake; the mistake being innocent and shared by both parties. The description written in the deed was taken from another deed and without observing or in oversight of the other portion containing the exception in evidence of other lands previously sold. It is not at all made to appear that the real mistake was intended or observed at the very time of writing the description in the deed, or was intentionally done or suffered by one or both of the parties to the transaction. The appellees were not prevented any inspection of the deed to discover the error therein of omission of the exception. The real mistake was not discovered by any one of the parties before execution and delivery of the deed, and the evidence is direct that the appellant appealed to appellee for correction as soon as he in fact learned of the erroneous and incomplete description.
The judgment is reversed, and, in keeping with the verdict of the jury, judgment is here rendered in favor of the appellant as prayed for. Costs of appeal and the trial court are taxed against appellees.