Opinion
No. 3868.
July 13, 1939. Rehearing Denied July 29, 1939.
Error from District Court, Rusk County; R. T. Brown, Judge.
Suit to recover a tract of land by H. M. Hale and wife against Mrs. Charles A. Rasbury, Mrs. George C. Greer and another, wherein Mrs. Rasbury and Mrs. Greer filed a cross-action against the plaintiff and joined as parties defendant Mrs. Ida Hale, wife of the plaintiff, and C. M. Joiner, trustee. To review a judgment for the plaintiffs, the defendants bring error.
Affirmed.
This is a suit by the defendant in error H. M. Hale against Mrs. Charles A. Rasbury, Mrs. George C. Greer, and another not necessary to mention, to recover a tract of land described in the petition as follows:
"A part of the John Darley Survey in Rusk County, Texas, and described as follows:
"Beginning at a two inch iron pipe in fence corner S. 0 deg. 46' East 301 feet from the N.W. corner of a tract of land deeded to H. M. Hale by Sue Hale et al, as described in deed dated October 18th, 1907, and recorded in Vol. 61, page 613, of the Deed Records of Rusk County; Thence N. 88 deg. 13' W. with fence 196.2 feet to fence corner post for corner; Thence S. 1 deg. 10' W. 524.1 feet with the west fence of this tract to fence corner post for corner (a stake driven on south side); Thence S. 87 deg. 13' E. with the south boundary fence of this tract 205 feet to 2" iron pipe a fence corner in the west boundary line of said tract conveyed to H. M. Hale by Sue Hale et al; Thence North with the west boundary line of said tract to the point of beginning and containing 2 1/2 acres of land more or less."
The plaintiff pleaded title to the land under the ten year statute of limitations. The suit was filed sometime in 1937 prior to April 20th.
Mrs. Rasbury and Mrs. Greet answered and filed a cross action against Hale and joined as parties defendant to such cross action Mrs. Ida Hale, wife of the plaintiff, and C. M. Joiner, Trustee.
In the early part of January, 1917 W. B. Thompson agreed to convey to H. M. Hale and the latter agreed to purchase a small parcel of land out of the Darley Survey in Rusk County. Hale testified: "We measured the land off that morning and Mr. Thompson took the figures and went to town and to get the deed drawn up while his son and myself fenced it and it was all done in the same day.
"Q. Do you remember when I took your deposition ? A. I do.
"Q. On July 9th, 1937? A. I do.
"Q. Do you remember that I asked you at that time, `But anyway after you got this deed you fenced off this 2 1/2 acres that you thought you were buying and took possession of it,' and you replied, `I guess I fenced it off before I got the deed. I fenced it off right straight.'? A. That is what I say, we measured it off and we took the figures and his son and I fenced the place.
"Q. Anyway you did not wait for the deed but you fenced the land? A. Yes sir.
"Q. And you got the deed sometime later? A. Yes, but it was not describing the land I bought.
"Q. And Mr. Arnold of the Arnold Abstract Company prepared that deed? A. To the best of my knowledge he did.
"Q. And you took it in 1917, in January and placed it of record here in Henderson? A. Sometime later, I don't remember just when but I placed it of record later.
"Q. Whatever the abstract shows as to the record date is correct isn't it? A. I suppose so."
The deed referred to in Hale's testimony was executed by W. B. Thompson and wife, M. E. Thompson; is dated January 11, 1917, and filed for record January 31, 1917.
It states the land is situate in Rusk County, Texas, "and described as follows: Being a part of John Darley Headright Survey of 320 acres about 9 1/2 miles N.W. of Henderson, Texas, Beginning (here follows description by metes and bounds) containing 2 1/2 acres of land, more or less."
The land thus described is about a mile from the land described in Hale's petition.
The undisputed evidence shows Hale has had adverse possession of the land described in his petition since January, 1917, and has acquired title thereto under the ten year statute of limitations.
The land sued for is a part of Hale's farm and homestead of about 90 acres. One room of his residence is situated upon the land described in his petition.
On April 11, 1927, Hale and wife executed to C. M. Joiner, Trustee, an oil and gas lease upon three parcels of land, one of which is described as being in the T. J. Moore Survey and the other two are described as being in the Darley Survey. One of the tracts in the Darley Survey is described in the lease as follows: "also 2 1/2 acres of land out of the Darley Survey conveyed to H. M. Hale by W. M. Thompson, by deed of date of record in Vol. _____, page _____, Deed Records Rusk Co. Texas."
The lease reserved to the lessors one-eighth of all oil produced and saved from the leased premises.
By instruments dated March 23, 1931 and May 8, 1931, Hale and wife ratified the oil and gas lease above mentioned. The occasion for the execution of these ratification agreements need not be stated.
By instrument dated February 1, 1930, Hale and wife conveyed to Joiner, Trustee, a one-thirty-second interest in and to all of the oil, gas and other minerals in and under the land described in the lease heretofore mentioned. One of the tracts so described in this deed is described therein as follows: "Also 2 1/2 acres of land out of Darley Survey conveyed to H. M. Hale by W. B. Thompson by deed of record in Volume _____, page _____, Deed Records of Rusk County, Texas."
This deed recites: "Said land being now under an oil and gas lease executed in favor of C. M. Joiner, trustee (1/4 of all of the) it is understood and agreed that this sale is made subject to the terms of said lease, but covers and includes 1/4 of all of the oil royalty and gas rental or royalty due and to be paid under the terms of said lease."
In 1930 Mrs. Rasbury and Mrs. Greer went to see Mr. Joiner at his office in Dallas concerning some oil and gas leases which they had theretofore acquired an interest in from Joiner. They asked Mr. Joiner if he "ran across" any royalty to buy same for them. Joiner informed them he had that day gotten back a lease from Mr. Hale on the latter's farm, and he would let them have it for $100 each. This offer they accepted, paying Joiner $100 each. They bought "sight unseen." Joiner executed mineral deed to them, dated April 14, 1930, and sent the same to Mrs. Greer. The deed of the royalty interest by Joiner as trustee to Mrs. Rasbury and Mrs. Greer described the three tracts of land heretofore mentioned, the 2 1/2 acres out of the Darley Survey being described as follows: "Also 2 1/2 acres of land out of Darley Survey conveyed to H. M. Hale by W. B. Thompson by deed of record in Volume _____, page _____, Deed Records of Rusk County, Texas."
It is shown by the evidence that the description by metes and bounds of the 2 1/2 acre tract described in the deed from Thompson and wife to H. M. Hale of date January 11, 1917, describes a tract of land different from the tract described in the plaintiff's petition and the tract which Thompson agreed to sell and convey to Hale and which Hale agreed to buy in 1917. How the error occurred in the description of the 2 1/2 acre tract described in the deed from Thompson to Hale is not disclosed by the record. Not until sometime in 1934 did Hale discover that the description in the deed from Thompson to him of the 2 1/2 acre tract did not correctly describe the land which he had bought.
In their cross action Mrs. Rasbury and Mrs. Greer sought reformation of the deed from Hale and wife to Joiner, Trustee, and the deed from Joiner, Trustee, to Mrs. Rasbury and Mrs. Greer, so as to correctly describe the 2 1/2 acre tract sued for by the plaintiff and which the cross plaintiffs alleged was intended to be conveyed by the deeds mentioned. Reformation was sought upon the ground of mutual mistake or fraud.
The issues submitted and the answers returned read:
"Special Issue No. 1. Do you find from a preponderance of the evidence in this case that H. M. Hale and wife, Ida Hale, at the time the mineral deed dated February 1st, 1930, was signed and delivered by them to C. M. Joiner, that H. M. Hale and wife, Ida Hale, then and there had in mind and intended to convey to C. M. Joiner a one-fourth royalty interest in the 2 1/2 acres of land in controversy in this law suit?
"Answer: Yes.
"Special Issue No. 2. Do you find from a preponderance of the evidence in this case that H. M. Hale and wife, Ida Hale, grantors, and C. M. Joiner, grantee, at the time of the execution and delivery and acceptance of the mineral deed dated February 1st, 1930, made a mistake in assuming, and all made a mutual mistake in assuming, that the deed from Thompson to Hale, referred to in said deed of February 1st, 1930, correctly described the 2 1/2 acres of land in controversy in this law suit?
"Answer: No.
"In connection with that issue you are instructed that the word `mistake' as used in that issue, is some unintentional act or omission or error arising from ignorance, surprise, imposition or misplaced confidence.
"Special Issue No. 3. Do you find from a preponderance of the evidence in this case that H. M. Hale and wife, Ida Hale, grantors, and C. M. Joiner, grantee, in the deed dated February 1, 1930, each and all of them intended to include in said deed the 2 1/2 acres of land described and involved in this controversy?
"Answer: Yes.
"Special Issue No. 4. Do you find from a preponderance of the evidence in this case that the failure of Mrs. Greer and Mrs. Rasbury to discover the error, if any, in omitting the description of the 2 1/2 acres of land involved in this controversy from the royalty deed dated February 1st, 1930, from the Hales to Joiner prior to April, 1937, was not due to lack of reasonable diligence on their part?
"Answer: It was not."
Judgment was rendered in favor of Hale and wife against Mrs. Rasbury and Mrs. Greer for the land described in the plaintiff's petition and against Mrs. Rasbury and Mrs. Greer upon their cross action.
Mrs. Rasbury and Mrs. Greer prosecute this writ of error.
Runge Lane and Alvin H. Lane, all of Dallas, for plaintiffs in error.
Ross Huffmaster, of Kaufman, for defendants in error.
The first proposition, stated briefly, is to the effect that the description contained in royalty deed from defendants in error to Joiner, Trustee, dated February 1, 1930, is sufficient to convey the one-fourth royalty interest in the land sued for by defendants in error.
In support of this position plaintiffs in error invoke the maxim falsa demonstratio non nocet and cite decisions applying the same. The jury, in response to issues 1 and 3, found that Hale and wife, by the deed mentioned, intended to convey a one-fourth royalty interest in the 2 1/2 acre tract described in the petition of the defendants in error.
But the maxim invoked has no application unless, after rejection of the falsa, the other descriptive matter contained in the deed is sufficient to definitely locate some particular tract of land. Arambula v. Sullivan, 80 Tex. 615, 16 S.W. 436; McMurray v. Standley, Tex.Com.App., 1 S.W.2d 592.
With reference to the maxim it is correctly said in 14 Tex.Jur., Deeds, at Section 214:
"Where the premises are sufficiently described for purposes of identification, after eliminating some part of the description that is incorrect, the deed is read as if the misdescription were eliminated and effect is given to the remaining part of the description. Where the land is otherwise described with certainty, the maxim is falsa demonstratio non nocet, signifying that an erroneous description is harmless. * * *
"Where the remaining description, after rejection of the erroneous part, is insufficient to enable the land to be identified with certainty, the defect may not be cured by extrinsic evidence. Such evidence becomes important only when, after rejection of the false description, the remaining words of description enable the land to be definitely located."
The land described in the royalty deed from Hale and wife to Joiner can only be located by reference to the description contained in the deed from Thompson and wife to Hale of January 11, 1917. The falsa in that deed is in the particular description by metes and bounds, and if that falsa be disregarded the rest of the descriptive matter is wholly insufficient to locate any definite tract of land whatever. The maxim invoked, therefore, has no present application. See cases above cited.
The two royalty deeds under which plaintiffs in error claim are clearly insufficient as written to convey any interest in the 2 1/2 acre tract described in the petition and cross action. Davis v. George, 104 Tex. 106, 108, 134 S.W. 326.
It is next insisted the royalty deed from Hale and wife to Joiner and the deed from Joiner to plaintiffs in error should be reformed by correcting the description in said deeds so as to embrace the 2 1/2 acres in controversy because the undisputed evidence shows, and the jury found in response to issues 1 and 3, that Hale and wife had in mind and intended to convey to Joiner a one-fourth royalty interest in the 2 1/2 acre tract in controversy and intended to include said tract in the deed from them to Joiner. It is asserted that this undisputed evidence and findings entitle plaintiffs in error to reformation of the deeds mentioned and correction upon the equitable grounds of either fraud or mistake.
This position is untenable because:
(1) The jury, in response to the second issue, found there was no mistake, and the record shows no motion for judgment non obstante veredicto. In the absence of such a motion the trial Court could not disregard the second finding and render judgment in favor of plaintiffs in error.
(2) With respect to fraud, no issue was submitted or requested. It must, therefore, be assumed such issue was waived unless actionable fraud was shown by the undisputed evidence. We do not regard the evidence as so showing.
(3) In order for plaintiffs in error to successfully defend against the suit by Hale and maintain their cross action against Hale and wife it was necessary for them to secure reformation and correction of the royalty deed from Joiner to plaintiffs in error. No issue relating to fraud or mistake in the execution of that deed was submitted or requested to be submitted, and such issues must be considered as waived. The evidence does not conclusively show plaintiffs in error entitled to reformation and correction of Joiner's deed to them upon the ground of mistake or fraud.
By their third proposition plaintiffs in error say that "as grantees of the original grantee from appellees they are subrogated to the right which their grantor had to have the deed from appellees to him reformed in order to correctly describe the two and one-half acres involved in this suit."
The rule of subrogation contended for is correct (36 Tex.Jur. p. 743), but it does not relieve plaintiffs in error of the necessity of establishing the facts essential to their defense and the maintenance of their cross action. The third proposition presents no ground for reversal.
The fourth proposition announces a correct rule of law, but it presents no ground for reversal.
The fifth and sixth propositions are controlled by what has heretofore been said. The seventh and last proposition asserts the second finding is in conflict with the first and third findings.
It is the duty of the Court to "reconcile apparent conflict in the jury's answers if this can be reasonably done in the light of the facts of the particular case, the pleadings and evidence." 41 Tex.Jur., Trial — Civil Cases, Sect. 360.
The apparent conflict, if it can properly be so regarded, which we doubt, is explained by the fact that the evidence wholly fails to show the intention of Mrs. Hale in executing the royalty deed to Joiner. Though the jury, in response to issues 1 and 3, made findings as to Mrs. Hale's intention, there is in fact no evidence from which it could be inferred she intended to convey any interest in the 2 1/2 acre tract in controversy. The 2 1/2 acres in controversy were a part of her homestead and reformation against her essential to the passing of title to Joiner by the Hale royalty deed. This state of the evidence is the probable explanation of the possible apparent conflict between findings 1 and 3 on the one part and finding 2 on the other.
The record presents no reversible error.
Affirmed.