This suit is to establish title to three-fourths of one-eighth royalty interest in appellees as against appellants to the oil and gas in and underneath, and oil extracted prior to suit, of the strip of land indicated by the dotted line through "35" on the following plat:
Being sections 34 and 35 in block 5, Texas Pacific Railway Company, situated in Stephens county, Tex. Thirty-five was originally surveyed May 9, 1874, and patented June 23, 1876, to the Fidelity Insurance, Trust Safety Deposit Company of Philadelphia. Thirty-four was originally surveyed June 16, 1874, school land. Resurveyed upon application to purchase by J. F. Evans, February 11, 1878, and on February 11, 1897, the S.E. 1/4 was awarded to him. By the original survey the two sections conflicted as indicated above, and 35 being the first patented, the S.E. 1/4 of section 34 by field notes was patented to its west line, and for that reason contains 120 acres instead of 160 as originally surveyed.
By their first amended original petition plaintiffs name B. H. Lauderdale as common source of title, and set up:
"That if the deeds, or any of them, within the chain of title of plaintiffs, or any of them, do not contain the land here sued for that it was the intention of all parties that the land herein sued for be included in said deed or deeds, and that such omission was due to the fraud of the defendants or by accident or mistake of all the parties, and such deed or deeds should be corrected and reformed in order to show that they do in fact contain the land herein involved."
The record conclusively shows that no deed in the chain of title from B. H. Lauderdale down to plaintiffs describes the land in controversy, so in the absence of fraud or mistake parol evidence is not admissible to enlarge the boundaries. Crabb et ux. v. T. P. Coal Oil Co. (Tex.Civ.App.) 238 S.W. 279.
The pleadings charge fraud or mistake *Page 566 upon the part of defendants. W. E. Smith and S.D. Liles are not parties defendant to this suit, and these are necessary links in the plaintiff's chain of title to enable them to recover, and they cannot be supplied without making them parties.
For these reasons I am of the opinion that the cause should be reversed and remanded for new trial, and therefore enter my dissent.