
    No. 582
    LOWE et v. KINDALL
    No. 19853.
    Supreme Court
    On motion to certify.
    Dock. May 29, 1926.
    997. REAL ESTATE — Where through the mistake of a party who drew the deed the reservations in said deed were not in accordance with the understanding of the grantor and grantee, may said deed be reformed in accordance with the intention of the parties thereto?
    Attorneys — Moore, Devaul & Moore, Woods-field, for Pltf.
   D. W. Lowe et al, brought this action originally in the Monroe Common Pleas against Eva F. Kindall in which a reformation of a deed was sought.

It appears that Lowe conveyed certain real estate to Kindall by deed in which royalties from oil and gas were reserved. The parties agreed that Kindall would in no way interfere with the operation of oil or gas wells and the evidence disclosed that the party who drew the deed reserved to the grantors the royalties “forever”.

Kindall in another action had filed suit in an effort to eject the lessees in the oil and gas lease from the property and enjoin the further operation of the wells, which action if successful would deprive the grantors of the deed in question from any right to royalties.

The oil and gas lease terminated at a certain date, but it was the understanding of the parties to the deed that said lease would be in effect until all oil and gas was removed from the party.

The Common Pleas refused to reform the deed because it was unable to ascertain what agreement existed between the parties. The Appeals entered a decree in favor of the defendant on the ground that there was no mutual mistake concerning the termination of the lease because both parties believed the lease' would continue as long as oil and gas were taken from the property in paying quantities.

Lowe in the Supreme Court contends:

That the deed should be reformed in accordance with the intention of the parties to the deed.  