R. E. SMITH et al., Petitioners, v. H. P. ALLISON et al., Respondents, 301 S.W.2d 608

SMITH, Justice. H. P. Allison and others filed this suit against R. E. Smith and others in trespass to try title to recover an undivided ¼⅛ interest in the oil, gas, and other minerals under the northeast ¼ of

Section 124, H. & T. C. R. R. Co. Survey, Block No. 25, in Scurry County, Texas. All parties agree that the statement of the nature of the suit by the Court of Civil Appeals is correct. In the interest of brevity, we state only such facts as we deem necessary to a decision of the questions presented for our determination. The deed, dated March 27, 1941, executed by Bertha B. Clark and delivered to Nedra Neely, conveyed by specific description an undivided Y2 interest in the oil, gas, and other minerals in and under the southeast ⅛⅛ and the northwest ¼⅛ of

Section 124, Block 25. Following the specific description of the land under which the ½ interest in the minerals were being conveyed, the deed contains a paragraph reserving to Bertha B.

Clark the right to execute all future oil and gas leases on the conveyed minerals, and then in the next paragraph appears the following general description: “The parties however intend this deed to include and the same is hereby made to cover and include not only the above described land, but also any and all other land and interest in land owned or claimed by the Grantor in said survey or surveys in which the above described land is situated or in adjoining the above described land.

Should the foregoing particular description for any reason prove incorrect or inadequate to cover the land intended to be conveyed as above specified grantor agrees to execute such instrument or instruments that may be necessary to correct such particular description.” The petitioners, R. E. Smith and others, who claim under subsequent conveyances from Clark, took the position in the trial court that if the description did not, as a matter of law, limit the conveyance to the southeast ¼⅛ and the northwest ¼⅛, then the description was ambiguous, and that Bertha B.

Clark intended to convey to Ne-dra Neely, and did convey to her, only an undivided ½ interest in the minerals in and under the southeast ⅛ and the northwest ¼ of

Section 124, and that she did not intend to convey to Nedra Neely any interest in the northeast ¼ of

Section 124. The petitioners, R. E. Smith and others, further alleged that Mrs. Neely paid Mrs. Clark an agreed consideration of $10 per mineral acre for a ½ interest in the minerals in the southeast and northwest quarters of

Section 124, and that Mrs. Neely did not purchase and did not pay Mrs. Clark for any minerals in the northeast ¼ of

Section 124. At the time of this conveyance, Mrs. Clark was the owner of the northeast ¼ of

Section 124, and Sections 123 and 145, adjoining

Section 124, as well as the two one-quarter sections specifically described in the deed. A jury found that Mrs. Clark did not intend to convey to Mrs. Neely an undivided ½ interest in the minerals in the northeast 14 of

Section 124, and judgment was rendered in the trial court for petitioners, R. E. Smith and others. The Court of Civil Appeals upheld the judgment of the trial court wherein it held that the deed was ambiguous and that the evidence supported the finding of the jury that it was not the intention of Mrs. Clark to convey any interest in the northeast ¼ to Mrs. Neely, but sustained the contention of respondents, Allison and others, that the trial court erroneously submitted the issue of intention to the jury, in that the issue only inquired as to the intention of Mrs.

Clark and did not inquire as to the intention of Mrs. Neely, and that, therefore, the finding of the jury that Mrs. Clark did not intend to convey ½ of the minerals in the northeast ¼ of

Section 124 was insufficient to constitute a basis for judgment of the trial court. For that reason, the judgment was reversed and the case remanded to the trial court for a new trial. 281 S.W.2d 136. Both parties are petitioners in this court. Smith and others contend that the Clark deed was capable of more than one

interpretation, and that evidence of the surrounding facts and circumstances may be looked to for its construction. They further contend that the judgment of the trial court should be affirmed, because in construing the deed it is the ultimate purpose to ascertain the intention of the grantor, and, further, because the granting clause in the deed from Bertha B. Clark to Nedra Neely limits, as a matter of law, the ½ interest in the minerals conveyed to the land particularly described in the deed, plus any strips of land adjoining and a part thereof, but not embraced within the particular description.

The petitioners-respondents Allison and others present twenty points all of which present and preserve their paramount point that the deed unambiguously conveyed the 14th mineral interest in the northeast ⅛ of

Section 124. We have concluded to sustain the contention of petitioners, Smith and others, and affirm the judgment of the trial court. That portion of the general description reading : “The parties however intend this deed to include and the same is hereby made to cover and include not only the above described land, but also any and all other land * * * owned * * * by the Grantor in said survey (124) * * * in which the above described land (NW}4 and SE^4) is situated or in adjoining the above described land. * * * ” is ambiguous for two reasons:

(1) To adopt the contention of the petitioners-respondents, Allison and others, the deed, even though they now only claim an undivided ½ of the minerals in the northeast 14 of

Section 124, would convey the full fee simple title to Mrs. Neely.

(2) Even though the petitioners-respondents, Allison and others, assert they are not claiming any interest in Sections 123 and 145, the fact remains that the general description does not limit the conveyance to minerals in

Section 124, but conveys the land. The granting clause, the habendum clause, and the warranty clause refer only to minerals. A deed ambiguous by its terms cannot be rendered unambiguous by the mere assertion in the lawsuit that no claim is being made to the land that Mrs. Clark testified she did not intend to convey. Petitioners-respondents, Allison and others, contend that whether the deed might be construed to cover the whole interest is wholly immaterial in view of their non-claim to the fee, except ½ of the minerals in the northeast ¼.

We hold that the ambiguity is found in a material portion of the deed, and that parol evidence was admissible to explain the intention of the grantor, Mrs. Clark, when she executed the deed. The facts show that Mrs. Clark did not intend to convey any interest in the northeast ¼ of

Section 124. The petitioners-respondents, Allison and others, rely upon the case of San Antonio Machine & Supply Co. v. Allen, Tex.Com.App., 284 S.W. 542, to support their contention that parol evidence is inadmissible to vary the unambiguous terms of a deed. In that case, which was a suit by Allen to recover commissions, the court, among other things, simply held that parol evidence was inadmissible to vary an unambiguous, independent provision for payment of commission on sales, in absence of controversy as to “territory” involved.

In our case, the deed under question contains material inconsistent provisions that render it uncertain as to the property -conveyed. The deed grants ½ of the minerals in two specifically described sections, and although the granting clause, habendum clause, and warranty clause confine the conveyance to minerals, yet, the general description fails to limit the conveyance to minerals in the northeast ⅛ and Sections 123 and 145. These recitations clearly indicate an inconsistency between the general description and the descriptive matter identifying the particular tracts described and mentioned in the deed.

The Allisons and others rely upon the case of Laucheimer & Son v. Saunders, 27 Tex.Civ.App. 484, 65 S.W. 500, 501. In that case the deed of trust and deed described certain parcels of land conveyed, and also contained a general clause to the effect that it was the intention of “Saunders” to convey all of his real estate in Coryell County, whether described or not, except his homestead.

The court in that case refused to uphold the contention that special mention and description of particular tracts or parcels of land could be construed as a restriction and limitation upon the other intention, as indicated by the general description conveying all other lands not described.

The -court held that there was no repugnancy between the two matters of description, and reconciled the two descriptions “upon the theory in accord with the grantor’s evident intention to convey the particular tracts mentioned, and also all other lands.” In that case the “evident intention” of the grantor was determined from the unambiguous terms of the deed. In the present case we are unable to reconcile recitations of a conveyance of fee simple title to land by general description with a conveyance of only the minerals in the land particularly described.

The petitioners-respondents, Allison and others, contend that the general description is meaningless if we fail to hold that it conveys the northeast ⅛, or, to put it another way, it is meaningless if we hold that the deed is ambiguous and that it was proper to permit Mrs. Clark to testify that she did not intend to convey any interest in the northeast and that she received only $1,-600 in consideration for the ½ of the minerals in the two tracts particularly described. They take the further position that no competent extraneous evidence was introduced to show that it was Mrs.

Clark’s intention to convey nothing in the northeast ¼, and, that the deed is unambiguous, and, therefore, was sufficient to convey to Mrs. Neely the ½ interest in the minerals in the northeast J4 now claimed by them. In addition to the facts heretofore pointed out, the record shows that on March 27, 1941, the date of the Clark-Neely deed, Mrs. Clark owned the southeast the northwest ¼, and the northeast of

Section 124, comprising 480 acres of land and she owned

Section 123, comprising 640 acres of land and

Section 145, comprising 640 acres of land; that the tracts of land were adjoining, as shown in the plat below: The record further shows that Mrs. Clark did not prepare the. deed, and Mrs. Clark testified (she was not a party to this suit) that she had never seen Mrs. Neely and did not know where she lived and did not know where she resided at the time of the trial; that she (Mrs. Clark) lived on

Section 123 on the date of the deed, and farmed and grazed stock on all the land; that no one ever asked her to execute another instrument to add the northeast ⅛ of

Section 124 to the specific or particular description in the deed of March 27, 1941. Mrs. Clark remained in possession of the land from the time she made the deed to Mrs. Neely until she conveyed the north half (Ni/⅞) of

Section 124 to Marvin Key on January 31, 1944. The testimony was admissible and was competent to show that Mrs. Clark did not intend to convey the northeast ⅛ of

Section 124, being 160 acres in the form of a square, neither did she intend to convey the two sections of 640 acres each adjoining

Section 124. The deed under consideration must necessarily be considered in its entirety in determining the question of whether or not it is ambiguous. We cannot discard or ignore any part of the description in arriving at a conclusion of the question. The petitioners-respondents, Allison and others, further contend that even if the deed was ambiguous, the evidence failed to raise the ultimate fact issue that by the deed dated March 27, 1941, Mrs. Neely did not intend to acquire any interest in the minerals in the northeast ¼ of

Section 124. In the same connection, they contend that the issue which was submitted did not properly submit the question of intent, in that it failed to inquire as to the intent of Mrs. Neely. With this we cannot agree. This is not a suit for reformation of the deed. The rules of law applicable to the construction of a deed capable of more than one

interpretation and the rule applicable to suits to reform instruments are different. As to the latter, it is necessary that all parties to the instrument intended to enter into a contract different from that which they executed, or that one party was induced to execute the contract by the fraud of the other. The cases relied upon by the Allisons, beginning- with Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447, 450, were suits to reform.

In the Bennett case, the Bennetts alleged in their supplemental petition that if the tract of 2.59 acres was covered by the Sun lease, then it was incorporated as the result of a mutual mistake, etc. The court discusses the effect of the only issue submitted to the jury, and the answer thereto. The issue was: “Do you find * * * that it wa9 mutually intended and agreed between Malinda Schuyler and J. H. Liles that the lease which was executed by Malinda Schuyler and Horace Schuyler in favor of the Sun Oil Company should cover and affect the 2.59 acre tract in question?” The jury answered “No”.

The court held that the finding was not tantamount to a finding that the inclusion of the 2.59-acre tract was the result of a mutual mistake. The Court of Civil Appeals, 77 S.W.2d 1086, held that the jury’s answer to the issue submitted was not a finding of mutual mistake and did not authorize reformation of the lease. The Commission of Appeals in approving this holding said [125 Tex. 540, 84 S.W.2d 450]: “The jury merely found that both parties to the lease did not intend and agree that it should cover and affect the tract in controversy.

This finding does not negative the existence of an intention on the part of one of the parties that the lease include the tract. If one of the parties intended that the lease cover and affect adjoining land owned by the lessor, there was no mutual mistake in the execution of the lease containing language which included such land.

In the absence of fraud or inequitable conduct, a written instrument will not be reformed on account of mistake, unless the mistake is mutual; that is, a mistake common to both parties, both laboring under the same misconception in respect to the terms of the instrument.” As heretofore stated, this is not a suit for reformation of the deed based on mutual mistake, accident, or fraud. Smith and others alleged as a defense that the deed was ambiguous and that it was not the intention of Mrs. Clark to convey the square of 160 acres, or any other interest in the minerals in the northeast ¼ of

Section 124. They assumed the burden of proof on this question, and the issue contained in the charge was so framed as to place the burden upon them to establish such contention. It is true that there is no evidence in the record as to the intention of Mrs. Neely, but the absence of such proof does not minimize the weight and effectiveness of the testimony given in support of the issue submitted.

The ultimate purpose in construing a deed is to ascertain the intention of the grantor, and when this intention is ascertained, that construction which carries the intention into effect, when such intention is lawful, governs and controls. See Arab Corporation v. Bruce, 5 Cir., 142 F.2d 604; Gibbs v. Barkley, Tex.Com.App., 242 S.W. 462, 464; Alexander v. Byrd, Tex.Civ.App., 114 S.W.2d 915, er. ref.; W. T. Carter & Bro. v. Davis, Tex.Civ.App., 88 S.W. 2d 596, 597, er. dism.; Kennedy v. Shipp, Tex.Civ.App., 135 S.W.2d 204, er. dism., judgment correct.

Allison and others present another contention to the effect that ambiguity cannot turn on the number of additional acres owned by Mrs. Clark in the survey, and that the deed was unambiguous and that “All the land owned by a person in Survey X means all the land owned by such person in Survey X, whether it be 10 acres, 160 acres, or 640 acres.” Obviously, there was a purpose in inserting the general description in the deed.

Allison and others rely upon the Bennett case to support their principal contention, but contend that the language in that opinion wherein the court stated: “Its [general description] apparent reasonable purpose is to prevent the leaving of small unleased pieces or strips of land, like the tract here in controversy, which may exist without the knowledge of one or both of the parties by reason of incorrect surveying, careless location of fences, or other mistakes.” See Sun Oil Co. v.

Bennett, supra [125 Tex.540, 84 S.W.2d 452], Under the record in the present case, the purpose as stated in the Bennett and other cases is the only reasonable purpose for inserting the general description in the deed. For other cases holding that similar general descriptions have been construed to cover small excess acreage tracts see: Sun Oil Co. v. Burns, 125 Tex. 549, 84 S.W.2d 442; Cantley v. Gulf Production Company, 135 Tex. 339, 143 S.W.2d 912, 915. Honorable Wilmer D.

Masterson, Professor of Law, Southern Methodist University, in the Fourth Annual Institute on Oil and Gas Law and Taxation, in commenting on the purpose of such a clause as we have here, said that the clause is frequently found in lease forms, but infrequently in mineral grants, and that its purpose was to pick up-strips to which the grantor has acquired limitation title. In the case of State v. Arnim, Tex.Civ.App., 173 S.W.2d 503, 508, er. ref. w. o. m., the court said: “ * * * There are, however, certain principles of public policy involved in land conveyancing.

One is that which tends to discourage separate ownership of narrow strips of land.

Such strips are of course subject to ownership and when an intention by a grantor to retain or except such a strip out of a conveyance is expressed or made clear, his intention will be respected by the courts, but where such intention is not discernible from the language employed in the conveyance, the presumption is that the grantor acted in accordance with the established . public policy of the State and did not intend to retain ownership of a narrow strip of land that would be of no value or of very slight benefit to him. * * ” Since we have held that the deed is ambiguous, and that the true intent of the grantor was not to convey any interest in the northeast ¼ °f

Section 124, and that the issue upon intent was correctly submitted to the jury, and that the only reasonable reason for inserting the general description in the deed was for the purpose as stated above in quoting from the Bennett case, it follows that the judgment of the Court of Civil Appeals in so far as it reverses and remands the case to the trial court should be reversed and the judgment of the trial court affirmed. In all other respects the judgment of the Court of Civil Appeals should be affirmed. The judgment of the Court of Civil Appeals is reversed in part and affirmed in part, and that of the trial court is affirmed. CALVERT and WALKER, JJ., concur in the result.