
    GILMORE et al. v. O’NEIL et al.
    (No. 2344.)
    (Supreme Court of Texas.
    Feb. 3, 1915.)
    1. Trespass to Try Title <@=?8 — Superior Title.
    The superior title, which will entitle a party to prevail in trespass to try title, may be either legal or equitable.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dec. Dig. <@=>6.]
    2. Deeds «=>137 — Description—Land Conveyed.
    Where a deed to 15 acres of land out of a 50-acre tract specially excepted “D.’s 1%-acre tract,” by reference and by description, the grantee and his successor in interest acquired no interest in any part of the excepted tract, though the deed to D. described it as “1.35 acres.”
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 457; Dec. Dig. «=>137.]
    3. Vendor and Purchaser «=>165 — Land Sold — Survey—Equitable Title.
    Where the grantor, who by mistake had deeded to the grantee only 1.35 acres, described as in the corner of a 50-acre tract, instead of the 1% acres sold to her, caused 1% acres to be surveyed and laid out on the ground, and recognized the grantee as the owner thereof, the grantee, having accepted such designation of the land, became invested with the legal title to the extent of 1.35 acres and the equitable title as to the remainder, as against the grantor, his heirs, and purchasers from him with notice of the grantee’s equity.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 329, 329% I Dec. Dig. «=>165.]
    4. Trespass to Try Title «=>4 — Right to Relief — Conditions Precedent — Reformation of Deeds.
    Where J.’s deed lo D. by mistake described the land as 1.35 acres instead of the 1% acres sold, and D. deeded the land, describing it as 1% acres, to O., who took possession and made valuable improvements without objection from any one, O. had a perfected equitable title in the land omitted by mistake from the first deed, which he was entitled to establish, as against J. or his heirs or any one acquiring the land from them with notice of the equity, in an action in trespass to try title without a prior reformation of the erroneous deed.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 4; Dec. Dig. <§=4.]
    5. Limitation of Actions «=> 40— Defense— Equitable Title.
    Where, in trespass to try title, a defendant in possession set up an equitable title to the land, the fact that he asked for a removal of the cloud cast on his title by the claims of plaintiffs and intervenors did not convert his claim into an affirmative action subject to limitation.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 212, 213; Doc. Dig. «=» 40.]
    6. Landlord and Tenant «=>123 — Outstanding Title — Description in Deed— Lessees — Actual Notice.
    Where lessees took from the widow of the grantor in a prior deed erroneously describing the land conveyed as being 1.35 acres instead of 1% acres, at a time when a deed from such grantor and his wife to a third person, which deed distinctly referred to the land covered by the erroneous deed as being a tract of 1% acres, had been of record for more than two years, and where the lessees, -while negotiating for the lease, were shown the tract to be leased, which excluded the land erroneously omitted from the deed, they took with notice of the grantee’s equitable title to such omitted land. ■ •
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 435, 436; Dec. Dig. «=> 123.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Trespass to try title by G. E. Gilmore and others against John O’Neil and another, wherein Lucy Jones and others intervened. A judgment for the defendant O’Neil was reversed by the Court of Civil Appeals (139 S. W. 1162), and such defendant and plaintiff Gilmore and others bring error.
    Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.
    
      John Charles Harris and Harris & Harris, all of Houston, for plaintiffs in error. Lane, Wolters & Storey, ffm. A. Vinson, and S. H. Brashear, all of Houston, for defendants in error.
   PHILLIPS, J.

This suit, brought as. an action in trespass to try title by G. E. Gilmore, W. H. Nicholson, D. R. Beatty, and J. R. Cheek against John O’Neil and the Texas Company, is a controversy over about one-third of an acre of ground, and $29,563.85, the proceeds of the oil from an oil well sunk upon the traet by the defendant O’Neil; this amount being in the hands of the Texas Company, whose position in the case is merely that of a stakeholder. The land was originally owned by James Jones, under whom all parties claim as the common source of title, as a part of a 50-acro tract, the community property of himself and his wife, Lucy Jones. Interventions were filed by Lucy Jones and heirs of Thomas Jones, herein denominated for convenience as the Jones heirs, and the J. M. Guffey Petroleum Company, respectively, asserting title to the strip of ground and the proceeds of the oil. In the trial court the case was submitted to a jury on special issues, resulting in a judgment for O’Neil against all other parties. This judgment was reversed by the honorable Court of Civil Appeals; its determination being that O’Neil was not entitled to the land or the fund, but had the right to be reimbursed out of the latter for his expense incurred in the production of the oil — $11,000, the amount found by the jury — that the Guffey Petroleum Company should take nothing, and that the land and the balance of the fund belonged to those showing themselves entitled as heirs or assignees of Thomas Jones and wife, for the ascertainment of whom and their rights the case was remanded. The writ of error was granted by this court upon the respective petitions of Gilmore, the administratrix of Nicholson’s estate, Cheek, and Beatty, and of O’Neil.

O’Neil’s claim is based upon a sale, made in 1903, by Jones and wife to Nancy Duey of a tract out of the southeast corner of the Jones 50-acre tract, described in the deed .executed by Jones and wife at the time, dated September 28, 1903, as:

“One and thirty-five hundredths acres of land out of the S. E. comer of the fifty-acre tract sold to us by John M. Young and wife by deed dated Oct. 22, 1895, and being a part of the John Browne Jones league,” etc.

On August 1, 1908, Mrs. Duey conveyed an undivided one-half interest in this tract to Kuhn, executing, on the same date, a power of attorney in his favor, authorizing him to sell' or lease her interest. On July 29, 1908, Kuhn, for.himself and as attorney in fact for Mrs. Duey, executed an oil lease of the tract to Donahue, who on August 1, 1908, assigned the lease to O’Neil. In the deed and the power of attorney of Mrs. Duey to Kuhn, and in the lease to Donahue, the tract was described as in the deed from Jones and wife to Mrs. Duey. On September 17, 1908, for a recited consideration of $3,-500, Mrs. Duey, acting through Kuhn as her attorney in fact, and Kuhn, for himself, executed and delivered to O’Neil a deed describing the tract as “1.662 acres of land,” and by metes and bounds so as to constitute in the southeast corner of the Jones 50 acres a rectangular tract 317 feet long and 208.7 feet wide; that is, extending 347 feet east and west, and 208.7 feet north and south, which would include the strip of land in dispute.

According to the findings of the jury, which were in accordance with the contention of O’Neil upon the trial, on a special issue submitted by the court, the actual transaction between Nancy Duey and Jones and wife was the purchase by the former of $100 worth of land out of the southeast corner of the 50-acre tract at the price of $60 per acre, or 1% acres, and, by mutual mistake in the preparation and execution of the deed, the quantity of land sold and conveyed was therein described as 1.35 acres, when it should have been described as 1% acres. The jury further found that, after his conveyance to Nancy Duey, James Jones caused the 1%-acre tract, claimed by O’Neil, to be surveyed and set apart as the tract sold and conveyed to Nancy Duey by himself and wife, and at all times thereafter to the time of his death recognized and treated it as such. It appears that the Jones heirs never asserted to the contrary until shortly before the institution of the suit.

On May 20, 1905, Jones and wife conveyed to the National Oil & Development Company, out of the 50-acre tract, 15 acres; the deed having been duly filed for record on May 22, 1905. The calls in this deed refer to the land theretofore conveyed by Jones and wife to Nancy Duey as “Mrs. Duey’s one and two-thirds acre tract.” One of the boundary lines of the 15 acres conveyed is given in the deed as the entire north line of the Duey tract, and another as the entire west line of the latter tract, which by the deed are revealed as being respectively 347 feet and 208.7 feet in length. In other words, the 15 acres is described in this deed as entirely bounding the Duey tract on the north and west, and the calls in the deed reveal the Duey tract to be rectangular in form, 347 feet long, to the east and west, and 208.7 feet wide, to the north and south. The J. M. Guffey Petroleum Company’s claim is under this deed.

Prior to the execution of the conveyance to Nancy Duey, Jones and his wife had sold to Barrett a tract of three acres ;■ and it appears that there had also been sold out of the 50 acres another small tract, to Dunnam, stated in the opinion of the Court of Civil Appeals to consist of about one-half of an acre. Counting the Duey tract as 1.35 acres, after tie conveyance of the 15 acres to the National Oil & Development Company on May 20, 1905, there remained unsold, of the 50-acre tract, 30.15 acres. Counting the Duey tract as 1% acres, the remainder of the 50-acre tract amounted to 29% acres.

The basis of the claim of Gilmore, Nicholson, Beatty, and Cheek, the plaintiffs in the suit, was an oil lease executed by Mrs. Lucy A. Jones on January S, 1908, after the death of her husband James Jones, in 1906, to Beatty and Cheek, which described the land so leased as “thirty acres of land out of the John Brown Jones one-third league, said thirty acres being all of my remaining interest in the James Jones fifty-acre tract out of the said Jones league, said land being north of the Butler subdivision and south of the Bissonet tract in said one-third league”; and a renewal of that lease by Mrs. Jones and others, heirs of James Jones, dated May 6, 1908, in favor of Beatty and Cheek, describing the land as “thirty acres of land out of the John Brown Jones one-third league in Harris county, Texas, same being the unsold portion of the James Jones fifty-acre tract, and lying north of the Butler subdivision and south of the Bissonet tract in said one-third league.” This lease was assigned to Gilmore and Nicholson by Beatty and Cheek on July 16, 1908.

If the Duey tract is reckoned as consisting of 1.35 acres, and as laid out in the form of a rectangle, 208.7 feet wide, north to south, the strip in dispute, which extends 66.1 feet east and west and 208.7 feet north and south, would not be included within its lines. If that tract be counted as containing 1% acres, and is laid out in the form of a square, the strip would likewise lie without its boundaries. As has been already noted, if the Duey tract consists of 1% acres, laid out in rectangular form, 347 feet east and west, and 208.7 feet north and south, as claimed by O’Neil, and as the jury found was recognized and treated by Jones to time of his death as constituting the tract sold by himself and wife to Nancy Duey, it would include the strip in controversy.

The. position of Gilmore, Nicholson’s ad-ministratrix, Beatty, and Cheek is that the sold portions of the 50-acre tract at the time of the execution of the leases under which they claim were the Barrett 3-acre tract, the Dunnam one-half acre tract, the Duey 1.35-acre tract, and the National Oil & Development Company 15-acre tract (the deeds to none of which included or conveyed the strip in dispute); that accordingly it, at that time, constituted a part of “the remaining interest” in, or “unsold portion” of, the original tract, and the descriptions of the land embraced in their leases, namely, “thirty acres of land out of the John Brown Jones one-third league, said thirty acres being all of my remaining interest in the James Jones fifty-acre tract out of the said Jones league,” in one, and “thirty acres of land out of the John Brown Jones one-third league in Harris county, Texas, same being the unsold portion of the James Jones fifty-acre tract,” in the other, were therefore effectual, as a matter of law, to include it.

The west boundary line of the 15 acres conveyed to the National Oil & Development Company extends entirely from the north to the south line of the 50-acre tract, and is some distance west of the west line of the Duey tract, however reckoned. All of the portion of the 50-acre tract unsold at the time of the execution of the Beatty and Cheek leases lay west of the west line of the oil and development company 15 acres, unless the strip in controversy was a part of the unsold portion. It is apparent, therefore, that, if the strip be treated as a part of the unsold portion of the 50-acre tract, it lay remotely situated from the remainder of the 3& acres embraced in the leases under which the plaintiffs claimed.

We insert a sketch at this place showing the situation of the respective tracts:

According to further findings of the jury, O’Neil believed that he was acquiring a leasehold to the one-third of an acre when he obtained his lease from Mrs. Duey and Kuhn. He entered into possession under the lease in August, 1908, and, under such belief, during that month erected his derricks and sunk the oil well in the northwest corner of the one-third of an acre tract, at an expenditure for sinking the well and producing the oil of $11,000. He was in possession when the plaintiffs filed their suit on September 30, 1908, holding under the lease, and the deed of Mrs. Duey and Kuhn executed. September 17, 1908. None of the other parties appear to have realized that they had any right to this one-third of an acre, or to have asserted any claim to it, until, through O’Neil’s efforts, the oil well was produced and it was rendered valuable. Then the controversy began.

It is, in our opinion, a wholly mistaken view to assume, as urged by Gilmore and his coiDlaintiffs in error in the Court of Civil Appeals, and as that learned court determined, that the defense interposed in the suit by O’Neil was in effect an action on his behalf to reform the deed executed by James Jones and wife to Nancy Duey, held by the court to be not maintainable because barred by the four-year statute of limitation; or that the establishment of his defense was in any way dependent upon the reformation of that deed. The real questions which arise upon the respective claims of the plaintiffs and O’Neil’s defense fall within a much narrower compass, as it is believed a brief analysis of the case will disclose.

It will simplify the entire case to first determine where lies the superior title to the land. This does not mean the legal title, but the superior title, whether legal or equitable, since an equitable title may be superior to the legal title, and will prevail over the legal title if capable of being enforced against it. The claim of the plaintiffs was predicated upon their asserted ownership of a leasehold.supported by the legal title, because of the description in their lease; and, in the discussion, their interest will be referred to as a legal title to the land. Essential to the allowance of their claim is the determination that the description in their lease was sufficient. But, if that is admitted, they may be said to hold the legal title. This follows, because the description in the deed of Jones and wife to the National Oil & Development Company, under which the Guffey Company holds and claims, clearly did not include the land; the legal title had not been conveyed by Jones and wife prior to the death of Jones, and therefore rested in Mrs. Jones and Jones’ heirs at the time of the execution of the plaintiffs’ lease; and, as to Mrs. Jones and the Jones heirs executing the lease, it passed thereby to Beatty and Cheek, if the land was therein described.

This disposes of the claim of the Guffey Company. And, if the description in the lease to Beatty and Cheek be held sufficient, it likewise disposes of the claim of the Jones heirs. If that description did not include the land, the legal title remained in the Jones heirs, and the case would be then resolved into an issue between them and O’Neil as to the superiority of their respective titles.

O’Neil, admittedly, had no legal title to the land. Such title as he possessed was purely equitable. If it amounted to the superior title, it was of course subject to enforcement against any legal title in the Jones heirs, derived, as it was, from their ancestor. And, if the superior title, it would likewise prevail against any legal title in the plaintiffs, unless they occupied the position of innocent purchasers. If their lease did not describe the land, the plaintiffs had no character of title. If it did describe the land, and their position was that of innocent purchasers, any equitable title in O’Neil would yield to the legal title conferred by the lease, though, strictly speaking, his were the superior title. But it is immaterial whether the description in their lease was sufficient to invest them with the legal title, if their rights were acquired with notice of a superior equity in O’Neil’s grantor, after-wards ripening into title in his hands.

These are the questions which contain the heart of the case. An examination of them is therefore appropriate.

If the actual transaction between James Jones and Mrs. Duey was, as found by the jury, a sale to her by Jones and wife of $100 worth of land out of the southeast corner of the Jones 50-acre tract, at the price of $60 per acre, for which she paid the full consideration, there was really sold to Mrs. Duey a tract of 1% acres. The deed given her having conveyed by its terms only 1.35 acres, Jones and wife held the legal title to that part of the land sold but not conveyed, namely, one-third of an acre, approximately, in trust for Mrs. Duey; and she became the owner of a corresponding equity in the one-third of an acre. And if, following the conveyance, Jones agreed that the 1% acres sold to her should be laid out in the southeast corner of the 50-acre tract in the form of a rectangle, 347 feet long, east and west, and 208.7 feet wide, and caused 1% acres to be so surveyed and laid out on the ground, recognizing and treating such tract as the land sold, as the jury further found, Mrs. Duey, consenting to such designation of the land, thereupon, in view of her purchase and payment, became invested with the legal title to such tract to the extent of 1.35 acres, and the owner of an equity in the remainder. This is plain, since Jones could not dispute his own designation of the' tract, nor would any one acquiring title from him, or his heirs, by subsequent conveyance, with notice of Mrs. Duey’s equity, be heard to dispute it.

Under his lease and deed from Mrs. Duey and Kuhn, the latter describing the 1% acres as designated on the ground by Jones, O’Neil obtained all the rights in the tract originally owned by Mrs. Duey, including her equity in the one-third of an acre in controversy. This equity to the one-third of an acre would have been incapable of enforcement as a title in Mrs. Duey’s bands, because she had no possession; and, being out of possession, the reformation of the deed executed by Jones and wife would have been necessary to invest her with title. But had she taken possession, accompanied by improvements, having already paid the full purchase price of the land, there could be no doubt of the perfection of her equity into an equitable title, superior to the legal title in Jones and wife, and entitled to prevail against it in the hands of any subsequent owner not giotected as an innocent purchaser. This would have been her right, regardless of any reformation of the deed, for, in such event, she would have held the superior equitable title to the one-third of an acre, independent of the deed; and the deed could have presented no obstacle, either to her recovery or defense upon such title. But, being out of possession, ■what were Mrs. Duey’s rights, and those of O’Neil, her grantee? She stood clear in the ownership of an equity in the one-third of an acre in dispute, because she had bought and paid for it, and in good conscience it belonged to her, with an undoubted right to the title, and, by possession and improvements, to perfect her equity into a title. That these were her rights, and recognized as her rights by Jones, from whom she bought the land, according to the findings of the jury, cannot be gainsaid. Owning them, she could convey them; and her grantee would necessarily succeed to them. O’Neil acquired them, was let into possession under conveyance from her, believing that he was obtaining the right to the one-third of an acre, and was in possession when the suit was filed. Upon the faith of his right he made a large expenditure for the production of the well, which gave the land its value. His entry into possession and his ownership were unquestioned by the Jones heirs, or any one else, until shortly before the institution of the suit. It is evident, under this state of facts, that, independent of the deed from Jones and wife to Mrs. 'Duey, O’Neil held a perfected equitable title to the land in controversy, superior to the legal title in Jones or his heirs, or in the hands of any one acquiring it from them with notice of the equity.

O’Neil’s pleading recited the facts, substantially as we have stated them, and as the jury found them, the effect of which was to invest him with a superior equitable title to the land, and reveals that, upon such a title and notice of the equity by the plaintiffs in the acquisition of their rights, his defense to their suit was rested. His prayer for the removal of the cloud upon his title, cast by the claims of the plaintiffs and interveners, did not alter the character of his defense, or convert it into an affirmative action subject to limitation. If his was the superior title and capable of enforcement against the legal title, his right to be quieted in it would follow. Asserting, as he was, a superior equitable title, independent of the deed of Jones and wife to Mrs. Duey, as the basis of his defense, in what way was the reformation of that deed essential to the establishment of his defense? With no possession adverse to his right, how could limitation affect his right? It is not the law, and could not well be the law, that, in a trespass to try title action, proof of an equitable title by a defendant in possession is subject to limitation. What was said by Judge Wheeler in Newsom v. Davis, 20 Tex. 419, concerning the rights of a defendant in possession of land under a bond for title, having paid the consideration-one no more favorably circumstanced than a defendant in possession under such a sale as is shown to have been made by Jones to Mrs. Duey, with the full consideration paid, followed by valuable improvements in good faith — may be here aptly quoted:

“The defendant being in possession under a contract to convey, and having paid the consideration, is the equitable owner of the land. His is superior to the legal title remaining in, his vendor; and, there being no possession adverse to his right, the statute of limitations does not run against it. Vardeman v. Lawson, 17 Tex. 10.”

It was announced in Rutherford v. Carr, 99 Tex. 101, 87 S. W. 815:

“There is no statute of limitation which prescribes a bar to the proof of a fact material to sustain or defeat a cause of action or defense; such statutes act upon the cause of action.”

This is not a case where, as in Railway Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, and McCampbell v. Durst, 15 Tex. Civ. App. 522, 40 S. W. 315, it was necessary, in order to establish the title, to set aside a deed which stood as an obstacle to recovery.

Waiving the question of the sufficiency of the description in the plaintiffs’ lease, and admitting, for the present purpose, that it was sufficient, was the title possessed by O’Neil entitled to prevail against the legal title which a sufficient description in their lease would have conferred upon the plaintiffs? This depends upon whether their position was that of innocent purchasers of the legal title for value, without notice of the superior equity, or such knowledge as reasonably should have put them upon inquiry. At the time the plaintiffs acquired their lease, the deed of Jones and wife to the National Oil & Development Company, conveying the 15-acre tract to that company, had been of record for more than two years. That deed was in their chain of title, and they were charged with notice of its recitals. Caruth v. Grigsby, 57 Tex. 265. It embraced “a sold portion” of the 50-acre tract, and reference to it was of course necessary to determine what “the remaining interest” in the tract, or “the unsold portion” of the tract, was, in virtue of which description it is that tile plaintiffs claim tlia land under their lease. It distinctly referred to the land-sold by Jones and wife to Mrs. Duey as being a tract of 1% acres; and calling for the north and west lines of that tract, by measurement, as boundary lines of the 15 acres conveyed, revealed, as has been before notedj that Mrs. Duey’s land lay laid out upon the ground so as to include within its lines, and exclude from their lease, the strip in controversy. This could not amount to less than notice to them that the source of their title and hers recognized, by an actual measurement of the ground, her right to the land in dispute, and, if the description in their lease embraced it, that they were obtaining a questionable title. In addition to this, the jury found that, when Beatty and Cheek were negotiating for the lease, they were taken upon the ground and shown that the land proposed to be leased lay west of the West line of the National Oil & Development Company 15-acre tract — a location entirely remote from this strip — and that Beatty and Cheek accepted the lease with the understanding between themselves and their lessors, the heirs of Jones, that the land leased to them was so located. This constituted further notice to the plaintiffs that the heirs of Jones recognized that this strip was not “an unsold portion” of the tract; necessarily, therefore, equivalent to notice, under this description in the lease, that it was “a sold portion.”

With their rights acquired under such circumstances, it is clear that the plaintiffs were not entitled to be protected as innocent purchasers. This renders immaterial the question of the sufficiency of the description in their lease.

Under the findings of the jury upon the issues of fact, it is our opinion that O’Neil was entitled to recover the land and the- proceeds of the oil. This, it seems to us from an examination of the record, accords with the justice and right of the case; and that is what the law of a case ought to be.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the district court is affirmed. 
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