Jones v. Sun Oil Co. ( 1937 )

On Motion for Rehearing.

Appellant, in his motion for rehearing, asserts that although he knew the deed contained the language that it did contain, nevertheless he seeks a reformation because the agreement he and Loden actually made was not truly expressed in the writing, but a different one was made to appear through a mutual misunderstanding of the legal effect of the language used.

If the holding in Sun Oil Company v. Bennett, 125 Tex. 540, 84 S.W.2d 447, and authorities therein cited, 'do not sustain our conclusions as expressed in the original opinion, we still conclude that appellant cannot now be heard on this issue. The defendants were the holders of the legal title, and the burden'was on appellant to prove notice to them of his equitable right to reform the deed. The legal title to all the 100-acre tract within the metes and bounds description for a valuable consideration was conveyed to Loden in 1927, who in'turn conveyed the legal title in January, 1930, to Lula Tubb, and by her in July, 1930, assigned to Sun Oil Company. The royalty conveyances out of Loden were executed’ in 1930. This suit was filed January 4, 1935.

There is nothing in the lease or in the royalty deeds to put the grantees in these instruments on notice that Loden did not claim all the lands within his metes and bounds description. Construing all the evidence in the light most favorable to .appellant, his use of the lane was not sufficient to put these defendants on inquiry. He did use the land, but he used it for the purposes for which lanes are generally used. There was nothing in this character of possession in any way inconsistent with the reservation in his deed. Eylar v. Eylar, 60 Tex. 315; Michna v. Crane (Tex.Civ.App.) 28 S.W.2d 837; Linthicum v. Greer (Tex.Civ.App.) 75 S.W.2d 315; Teagarden v. Godley Lumber Co., 105 Tex. 616, 154 S.W. 973.

The motion for rehearing is overruled.