Plaintiff instituted this suit to have the reservation of a certain mineral royalty interest in the deed executed by him on March 24, 1927, transferring his undivided half interest in a 58-acre tract of land located in the Little Bayou Oil Field in Iberia Parish to C.W. Wolke, an interposed party for C.N. Bullock, construed so as to entitle him to 1/16th of all of the oil and gas produced from the entire tract of land instead of 1/32nd, as contended for by the defendant C.N. Bullock and his assignees, Laura Jacobs Bullock and F.W. Bennett, and also to recover $50,588.19 impounded by the lessee of the property, The Texas Company, awaiting *Page 102 the outcome of this suit. In the alternative it is contended by the plaintiff that the instrument should be reformed so as to reflect the true intention of the parties by providing that plaintiff is entitled to a 1/16th royalty interest, should the court decree that the reservation only provides for a 1/32nd.
In our decree of February 5, 1940, we affirmed the judgment of the lower court construing the provisions in the deed as contended for by the defendants and dismissing plaintiff's suit. Plaintiff, in his application for a rehearing, called our attention to the fact that we had failed to pass on his alternative demand and we therefore granted him a rehearing, but limited the same to that demand.
It is an established rule of law in our jurisprudence that "Either party is always permitted, in a suit between the parties to a contract, to correct any error in the instrument purporting to evidence the contract, so as to make it express truly and correctly the intention of the parties," (State v. Standard Oil Company of Louisiana, 164 La. 334, 354, 113 So. 867, the cases therein cited, and Fair v. Williams, 187 La. 953, 175 So. 631) provided the rights of third parties have not intervened. Sentell v. Randolph, 52 La.Ann. 52, 26 So. 797; Adams v. Drews,110 La. 456, 34 So. 602; Bender v. Chew, 129 La. 849, 56 So. 1023; Frantom v. Nelson, 142 La. 850, 77 So. 767; Giovanovich v. Breda's Widow and Heirs, 149 La. 402, 89 So. 251; Waller v. Colvin, 151 La. 765, 92 So. 328; 12 American Jurisprudence 631, Section 138; Williston *Page 103 on Contracts, Revised Edition, Volume 5, Section 1585, page 4423; 23 Ruling Case Law 333, Sections 25 and 27; 53 Corpus Juris 908, 935, 936, and 962. The error or mistake must be mutual. Hello World Broadcasting Corp. v. International Broadcasting Corp.,186 La. 589, 173 So. 115; Crowell Spencer Lumber Co. v. Hawkins,189 La. 18, 179 So. 21; Topps v. North British Mercantile Ins. Co., La.App., 148 So. 470; 13 Corpus Juris 373, Section 254; 13 Corpus Juris 520, Section 481; 53 Corpus Juris 941, Sections 59 and 60; 23 Ruling Case Law 327, Section 20; 12 American Jurisprudence 624, 625, Section 133; and Article 1826, Revised Civil Code. The burden is on the one seeking the reformation to prove the error (Metcalfe v. Green, 140 La. 950, 74 So. 261; White v. Myane, 10 La.App. 195, 120 So. 650; Crais v. Castaing, 13 La.App., 395, 128 So. 300; Coussons v. Smythe, La.App., 178 So. 657), and he must carry the burden by clear, and the strongest possible, proof. Palangue v. Guesnon, 15 La. 311; Dickson v. Dickson, 36 La.Ann. 870; Ker v. Evershed, 41 La.Ann. 15, 6 So. 566; Bryan v. Wisner, 44 La.Ann. 832, 11 So. 290; Gladdish v. Godchaux, 46 La.Ann. 1571, 16 So. 451; Chaffe v. Minden Lumber Co., 118 La. 753, 43 So. 397; Waller v. Colvin,151 La. 765, 92 So. 328; and Nelson, Curtis Nelson v. Bridgeman,152 La. 190, 92 So. 855.
It was held in the case of Nelson, Curtis Nelson v. Bridgeman, 152 La. 190, 92 So. 855, 860, that: "* * * a strong presumption obtains that the deed, as executed, properly describes and conveys all *Page 104 of the land intended to be conveyed. * * * the evidence [of an omission or error] * * * must be clear and convincing * * *." (Brackets ours.)
Having reached the conclusion in our original decree, which is now final, that the reservation in the deed provides for the payment to the plaintiff of a 1/32nd of all of the oil and gas produced from the entire tract of land, we now have for consideration the question of whether or not the plaintiff has borne the burden of proof on his alternative demand, i.e., that the instrument does not reflect the true intention of the parties thereto.
On this point the testimony of the plaintiff and that of the defendant Bennett, who, as the agent of Bullock, consummated the transaction, is diametrically opposite. The plaintiff states positively that he intended to "sell the surface rights and to retain all of (his) royalty," which he describes as a full 1/16th out of the entire production of the property, while Bennett states that plaintiff reserved "a 1/16th of the oil and gas produced from said 1/2 interest, or a 1/32 of the oil and gas produced from the full interest of the tract." In other words, Bennett's testimony is that, according to their agreement, on the basis of the customary 1/8th royalty, the plaintiff and Bullock were to share the oil, gas, and other minerals produced and apportioned equally.
Plaintiff summoned as a witness the notary who prepared the papers and he (the notary) stated that, while he recognized the act in question as having been prepared in his office, he only recalled one or two of the incidents leading up to the transaction, *Page 105 one being the plaintiff telling him "at that time that his intention was to reserve a 1/16 royalty and that he wanted to submit the matter to Mr. Burke [Mr. Porteous Burke, plaintiff's attorney] before signing it." (Brackets ours.)
There is also in the record the testimony of F.L. Alderson who testified that some time prior to the purchase of the property by Bennett, plaintiff had offered to sell him (Alderson) the entire half interest in the property (including the mineral interest) for a sum less than $5,000. He also said that he subsequently met the plaintiff in the Frederick Hotel in New Iberia and that the plaintiff told him he (the plaintiff) had sold the property, and that in selling it he had retained a half of the royalty he originally possessed. The plaintiff admits having had the conversation with Alderson, as testified to by him, but denies having stated that he had reserved only a half of the royalty he formerly owned. The plaintiff further challenges the value of Alderson's testimony because of the fact that Alderson, under cross-examination, admitted he was very friendly with an attorney of the defendants who had visited him regularly while he was in a hospital in Texas, and also because of the fact that on cross-examination Alderson, while pretending to remember this incident which occurred more than ten years prior to the trial of this case, failed to remember incidents connected with transactions of very recent origin in which he (Alderson) was personally interested.
Plaintiff strenuously urges that the defendants themselves interpreted this reservation *Page 106 to mean what he contends in a deed whereby Bullock assigned an interest in the property to Bennett. Reading that document in connection with the instrument in controversy, and taking into consideration the entire evidence, we are of the opinion that the plaintiff has not established by clear and convincing evidence that it was the intention of the plaintiff to sell and the intention of the defendant to acquire an undivided half interest in the 58-acre tract of land, reserving to the plaintiff a full 1/16th of all of the oil and gas produced from the entire tract, being a half of the usual 1/8th royalty, in effect reserving to himself all of the mineral interest that he had prior to the transaction.
We are fortified in this view because of the fact that the 58-acre tract of land is low and swampy, impossible of cultivation, and practically worthless except for its mineral potentialities. It is revealed by the evidence that the plaintiff acquired the property in 1912 from Antonino Canzaiere for $187, or slightly more than $3 an acre, and that at the time of the trial of this case the surface value thereof was between $7.50 and $10 an acre. It is inconceivable to us that the defendant Bullock would pay $3,500 for the mere surface rights to this property, as testified to by the plaintiff, when it was worth very little, and, in addition thereto, would pay $550, an amount in excess of the actual value of the surface right to the property, to Arthur Schexnayder for the outstanding royalty interest, in order to give the plaintiff a full 1/16th royalty in the gas and oil produced from the entire tract of land. *Page 107
For the reasons assigned, the plaintiff's alternative demand is denied and our original decree affirming the judgment of the lower court is made final at appellant's cost.
O'NIELL, C.J., and PONDER, J., take no part.