*1 occasion prior some ness House being testimony was his
occasion on made statement
given during the trial Casualty Com- the Alamo
the effect that it was change its name because
pany did oppor- that its or so often sued so much writing under that business tunities for prior certainly suffering, such
name were be could shown statement when, party by'
made him the adverse case, testified
had occurred in for the reason objection that the
without of convenience in names was that
change a cir- operations. such business Under certainly could be the witness cumstance process of
impeached, though even employer, for impeachment whom neces- testifying, suffer as
he was subject (al-
sarily incident to the objection
ready in the case without
employer, party in the trial defendant impeachment would upon’
court) which the at time In the state the record occur. occurred, complained it would
the events arbitrarily improper for had never the witness House at
assume that any damaging state-
any prior time made Casualty Com- regarding the Alamo
ment purposes supporting
pany, but consider that question the court should damaging state- made such
perhaps he had on cross- being such was shown
ment and
examination. rehearing motion for is over-
Appellant’s
ruled. BIRDSONG. et al.
HUTCHINS
No. 6676. Appeals Texas. Texarkana. Civil
Court 19, 1953.
March Rehearing Denied Denied Motion
Second
May 28, 1953.
219 appellants’ It is contention that the deed from Belitsky and Amos toWard Belitsky Ward, and the deed from to Amos in which two deeds no mention is made of a reservation of a one-half min- undivided interest, having and said deeds period executed and of record for a years, years’ some twelve the four statute part of limitation bars action on the appellee, Birdsong, to correct said deeds McLemore, Longview, ap- for Regan B. for either fraud or mutual mistake in leav- pellants. ing out of said deeds the mineral reserva- property controversy tion. here in Burke, B. and Hurst & Oscar Jones conveyed to Amos Ward on Decem- appellee. Longview, for ber 1931. The cash for consideration paid by appellee, deed was Birdsong, HALL, Chief Justice. and pay- the vendor’s lien notes were made plaintiff ap- below and Birdsong, E. X. time, able to him. At that and in 1938 here, against Es- pellee instituted this suit when controversy the two deeds here in husband, Rufus Ward Hutchins and sie Lee executed, Amos Ward and Essie Lee appellants Hutchins, and defendants below were husband and wife. Amos Ward died warranty here, reform set aside or filing before the of this .suit Birdsong and Amos deeds, E. one from X. Essie Lee had married Rufus Hutchins from B. E. other Ward to they were husband and wife at the time Ward, Belitsky both deeds to Amos B. E. cause in lower 15, 1938, duly filed of December dated There were no children born to Essie Lee upon by appel- relied grounds record. and Amos Ward. Sometime before two deeds aside or reform said lee to set controversy two deeds here in were exe- part of Belit- fraud on the alleged cuted, Belitsky, at the instance and on be- mistake of the sky, mutual wife, Lee, half of Amos Ward and Essie include in the two deeds so as to said deeds contacted Birdsong, the holder of the notes one-half in- of an undivided reservation a property, respect pay- with minerals, oil, gas and other terest ing same for Amos Ward and wife. An controversy. tract of land and under agreement was .reached between Appellants in 1950. an- was filed The suit respect payment plea in for lack abatement swered of said notes and was to have the necessary ground that parties, and on the proper papers drawn purpose. for this was barred appellee’s cause of action Belitsky was informed at the time of the Trial years’ statute of limitation. four conversation between him jury without a the court was before paying to his off the notes for re- judgment a resulted Amos Ward and that Birdsong owned two deeds because forming the an undivided one-half mineral interest in mistake, namely, inserting in mutual purchased the land which he had from appellee, reserving clause said deeds a shortly Amos Ward and they wife after one-half interest an undivided property received the from oil, minerals in said and other Gray Laura in 1931. Birdsong testified thatr comprising acres of land. tract he told on more than one occasion ap- brought forward that he owned this 1 and undivided one-half Points min- law conclusions of No. eral interest in the concern the land and pellants court, by the trial he knew that fact filed No. that it 4 and appel- plea in taken care of in the abatement pertain instruments to be years’ prepared. The ground four evidence further on based shows that lants nothing to do with prep- limitation. statute that, is: “The court concludes as matter the instruments in 1938 which a aration year Bird- limitation except mineral interest. the four statute of failed to suit, him is not defense to this song testified *3 brought by Birdsong min- suit was took of his E. X. within instruments care years property. Birdsong, at four after discovered in the he the defect interest in at- the instruments deed.” No issue of fraud is involved signed he time office, appeal, only question have in this not of torney Whitehead’s did mutual consequently presents question read mistake. im did not itself glasses his mediately any duty upon relied on statements whether rested the deeds but rights Birdsong in no Belitsky were to examine that his mineral the deed records of stated, Gregg County was As one deed to ascertain the contents of wise affected. con- the deed signed by Birdsong and Amos Ward from him and Amos toWard property Belitsky; and the after had been filed re veying the same convey- by Belitsky, Wade, corded. signed It is held in v. other deed was Herd Tex. Civ.App., 253, 258, property Amos In nei- ing Ward. 63 S.W.2d writ refused: Birdsong’s general “The registry instruments was rule ther of an property to him. Both instrument conveying reserved is notice interest only warranty conveying it, to those bound to search for straight such subsequent purchasers here that as is no contention gran title. There under the that his tor in a Peak, actual notice deed.” See also Udell v. 70 547, 786; not reserved the Tex. mineral interest was Texas Osage 7 S.W. Co Belitsky. operative Royalty Garcia, him and Amos Ward to deed from Pool v. Civ. Tex. App., 176 only by refused, the record- (writ contention SW.2d 798 want merit) ; ing constructive notice was of of said deed American Freehold Land Mort brought gage Pace, him of its Co. Tex.Civ.App. 222, home to contents 23 v. 56 that his S.W. charged (writ notice refused); law he was 377 36 Tex.Jur. was not reserved in 58. mineral interest Sec. As we applicable construe the law here, to the Ward to began deed from facts limitation to run against to Amos deed from nor in the from the time he discov testimony that noth- Birdsong’s by ered the Ward. mistake.or the exercise of due diligence this ing happened to call attention to could have discovered it. Oldham Medearis, well was' drilled in the vi- property 919; until a v. 90 Tex. 39 S.W. land, at which time he made cinity University Mason South, v. of the Tex. in Longview Civ.App., abstracter inquiry an 212 (writ refused, S.W.2d 854 well, of the no error); Luginbyhl reversible Thomp son, him of of the the terms Tex.Civ.App., abstracter (writ S.W.2d 380 him and Amos dismissed). from Ward to property title of whereby the entire The trial court found that Birdsong “did conveyed by not discover that the deed from himself to knowledge This came to Ward. to Amos Ben Belitsky affected his mineral interest early part of 1950and with- Birdsong in March, 1950,” until on or about and that time, considerably than less in a short “Birdsong discovery after of the fact that this suit in the district year, instituted he the deed rights, affected his mineral County. Gregg diligent bringing so suit and did within than years less after dis court’s law conclusion of The trial covery.” This suit was filed in the court “The court concludes as a 4 is: No. below The above imposed duty E. X. law, no Birdsong’s of fact cause of action search records make a Birdsong reformation for mutual mistake was Texas, County, until he had such Gregg years’ barred the four statute of limita him that would indicate to notice tion support find record this case was affected interest his mineral thereby. we bound are X. B. E. Mason v. E. from conveyance South, University supra S.W. And conclusion of law No. [212 Belitsky.” essary stated, parties to make the other at 857], “As above interest 2d it is said: negligence, litigation with in thé unit diligence, or of mistake, discovery pleaded reason that under the ratification reference to by appellee jury, litigation judge of fact for the was narrowed one non-jury points appel- over down to a in a case.” These contest between him and are respects lants ruled. the title to an undivided one-half of the minerals and under point Appellants’ “The 3 is: controversy. appellee’s tract By of land in overruling plea court erred in in abate ratification of said lease foreclosed ment filed Essie Ward Hutchins and Lee owning one land in the *4 for the Star husband reason Lone except appellants herein, unit and the Company, Lacy, Inc., Producing R. the and parties of other to said unit are in no wise parties plea other in of named abate by judgment in U. affected the this case. par necessary indispensable are ment and Royalty Stiles, Tex.Civ.App., S. Ass’n v. of ties to this suit.” The names the 1060, (writ dismissed, 131 S.W.2d correct joined stipulated and in the suit were judgment). point This overruled. is consisted of the owners all tracts the Appellants point assert under their other than (appellants) land defendants 4 that the findings trial court in erred its pool upon in Lone Star Pro 9, fact 11 and with to ducing Company gas had its well. In acting agent appellant for as Essie Lee upon appellee pleading went trial to husband, Ward Hutchins and her former allegation: is this “Plaintiff would further Ward, Amos resulting in the execution of show unto this honorable court that sought the two by to be reformed this Company Star Producing Lone an1oil has point action. This question raises a as to covering land gas and lease said tract of sufficiency support of the evidence to (here plain in that controversy) and the above findings of the court. We have hereby ratify tiff does said oil lease gas and -carefully examined the record very in and obligates himself to be by and bound opinion our findings these trial court gas plain terms of said oil lease. and This support find in the evidence and we are tiff further show unto this honorable by -bound question them. It is not a here pooling agreement unit, that a or be whether we would have found as the trial ing known unit as or tract No. 6 in which court did had the up facts been us for pooled pur has 230.68 acres been determination as the trier of the cause in pose of complying with the rules of instance; question the first but the is wheth a Railroad Commission developed er facts as on the trial are * * * plaintiff well said unit. This sufficientto warrant is whatsoever, disclaims interest and court so attacked. have concluded We that an undivided n only claiming asserting and support involved, facts the issues interest, subject mineral men above point for that reason this is overruled. ” * * * oil and lease. It is tioned judgment of the trial court is af- Ass’n, Sharpe held in v. Landowners Oil firmed. Tex. (Com. 92 S.W.2d On Motion opinion App., adopted by Sup.Ct.) “It : Appellants vigorous have filed a motion beyond question settled all in this that state rehearing in which certain assertions to cancel a a suit written instrument writer, which, are made in his interests, persons rights, whose or relations calmer moments he would not have in- subject-matter through with dulged. by the are suit will be affected cancellation necessary parties.” no appellants’ There could be The burden of contention applicability that, case, of the of this rule the facts appellee, under in this ap ratification grantor omitted the in the deed from him and Amos pellants’ Producing Belitsky, Lone Star charged, lease to the Ward as a matter opinion', Company knowledge out above. our the of with set the contents of They by appellee made ratification filed it unnec- the deed. cite the cases Kennedy only. 1018 cal sense found The trial court Tex.Civ.App., Brown, 113 S.W.2d Kahanek, Belitsky Amos acting agent as and Kahanek v. dismissed) (writ Belitsky as Ward Tex.Civ.App., 192 S.W.2d hall, agent approached a-pool Birdsong at requested .We have pay by Birdsong off the notes held cases those appellants to discuss against At the time Belit- the Wards’ land. Those case. facts of this relation to the approached sky the latter not grantor a general a rule hold that cases only against *5 Kennedy case clearly set out [113 in Birdsong held to the equally 1020], as follows: “It S.W.2d Belitsky, they prepared hands of that by the authorities as well established by Belitsky’s attorney. Birdsong had noth- begin to does not cases limitation in such any ing preparation to do with the or discovered the mistake run until papers, sign and when he came to the by the exer discovered should inquired papers he if his min- as would exer diligence of such cise affected, rights were in wise ordinary care person of by a cised him, told as than on more one in Great stress Citing cases. prudence.” occasion, rights that mineral were not the upon the fact that is laid those cases affected; (Belitsky’s) lawyer that his prepared the deed case had in each grantor prepared papers. Birdsong, true, the it is And in the grantee. the delivered to not read deed did the because he did not further: “It it is stated Kennedy case his glasses, implicitly have and he relied on by the evidence shown alleged nor neither him. what told thing any act or which did appellants that ap- assurance to as an construed could be The trial court heard these facts written deed was [grantor] pellee surrounding and circumstances the trans [reserving contract the contemplated as action, the and concluded that evidence was that could have or the mineral interest] sufficient to excuse a technical appellee into a lulling effect had the grantor Belitsky, to deed from the the mat security in to sense reference harsh rule that would charge him a mat think that the ours.) We (Italics ter.” ter of law with knowledge of the contents holding the holding is also the above he signed. opinion deed It is our case, which cites the Kahanek the court in the that evidence is sufficient to sustain the holding. for its a basis case as Kennedy finding of the trial court regard to the above cases clear that in Thus it is tolling the statute of limitation in favor of grantees the in facts shown to deed. in those cases had done involved The land was not in the East Texas Oil would have made statements act but later a part field became of a field sleep, grantor to lull the sufficient to (adjacent to the East Texas field). oil limitation under us that to then it seems nothing There was to call his attention to out above would have exception set misrepresentations grantor they until run begun his mineral had been taken care of the mistake. had discovered prepared Belitsky’s deed attorney, holdings operations in those cases until saw applying vicinity bar, we find that of the case at land. the facts finds undisputed testimony in a techni- grantor Morris, Shannon L. immediately inquiry Baytown, ap- abstracter made of an pellee. and found the facts to be that Belitsky had failed signed
he had CODY, the tract of mineral interest in reserve his Justice. land, immediately instituted he a proceeding by This is T. R. Wilson and cir- suit to correct his deeds. Under adopt Maryann Bowman, a white cumstances, and child, years of age. five Prior to the in- court, opinion original we held our proceedings, stitution on March supported by judgment of the court was mother, natural child’s who was still con- sufficient evidence. This is our Mary then Thompson, Ernestine executed Therefore, clusion. motion re- her adoption, written consent to hearing respectfully overruled. proceedings. was filed in the Prior
hearing adoption on proceedings, Boyed, mother child’s married one thereafter filed written withdrawal of her adoption. consent to the The child’s father natural filed also an answer which objected ádoption. The mother’s parents also answer, intervened and filed an objecting adoption. to such The court found that the child’s natural father had WILSON et al. BOYED v. birth, abandoned her before her and had No. 12560. made no support, contribution toward her *6 Appeals Galveston. of Civil of Texas. Court Roy and the Campbell, Honorable F. acting 1953. Judge of Court of Harris Juvenile County, adoption. filed his consent to the May 28, Denied
Upon hearing before the Honorable Hunt, B. Judge Wilmer of the 133rd Dis- County, trict Court Harris without a jury, judgment was granting rendered adoption sought so T. R. Wilson and response request wife. for conclu- fact sions the court found to (a) effect: that the child had not been voluntarily abandoned and deserted her mother, (b) that the natural mother did execute her written consent voluntarily for adoption Wilsons, child prior (c) and that hearing, natural mother did withdraw her consent adoption; but found that such with- drawal predicated of consent “was neither upon good nor presented cause cause change in evidence save her of mind.” The court concluded as a matter of law competent that it was for a parent natural given to withdraw the consent adoption a child at time before adoption, hearing on the but that such with- deprive drawal does not juris- court of Boyles, Butler, to hear and Baytown, diction determine the C. Howard Percy adoption, Binion, Wil- unless the & Cook Don withdrawal Rice is shown Houston, appellant. predicated upon liams, good cause. notes held the vendor’s lien provi knowledge charged land, Amos Ward’s but also addition limitation be deed; sions purchased from Amos and wife one-half him action run gins to of the minerals in under said tract of deed from in his mistake correct a land. At the first conversation between delivery of the of the execution date being that as recognize We instrument. him that he owned one-half of the minerals rule, cases cited these but both of general the land. told him that he under recognize they each an above reveal preparation papers knew that. exception is This exception that rule. respect to transfer of the notes