On Rehearing. Counsel for appellant has filed an able and interesting brief on motion for rehearing. We concede that the question *Page 994 is a very close one, and it may be that we have carried the doctrine announced in Simonton v. White, 93 Tex. 50, 53 S.W. 339, 77 Am. St. Rep. 824, cited in the original opinion, beyond its true scope; but we are still of the opinion that the reasoning of the Supreme Court in that case upholds the interpretation of the deed applied by the trial court here.
Appellant has also, for the first time, raised the point, claimed to be fundamental error, that the judgment below is erroneous, because the law does not authorize a partition between the holders of a fee-simple title to undivided interests in a tract of land and the holder of a mineral lease thereon. In support of this proposition, there is cited the case of Medina Oil Development Co. v. Murphy (Tex. Civ. App.) 233 S.W. 333, and it is insisted that we should either overrule that case or follow the doctrine declared therein.
We have examined the opinion of the San Antonio Court of Civil Appeals in the case cited, and we do not think that the case is in point on the facts. There the land was jointly owned by two persons, the tract consisting of about 1,900 acres. One of them executed an oil and gas lease to the oil company to a specified 1,000 acres, describing it by metes and bounds. The other joint owner did not join in the lease and was not a party to it. Suit was by the oil company for partition of the oil rights, and both landowners were made parties. A general demurrer was sustained, and the appellate court upheld the action of the trial court, upon the ground that the owner of an oil and gas lease on a part only of the land, executed by only one of the owners, could not maintain a suit for partition against the owners, and upon the additional ground that the oil lease was claimed on a particular portion of the land, described and designated, and that it was sought to establish the lease against such described portion, whereas, the land was owned in common, and, manifestly, the lessor could not convey an interest in a specific portion of the land jointly owned.
In this case the plaintiffs and defendants, except the Texas Company, were all joint owners of the land, and the relief asked against the Texas Company was merely to cancel the lease on all of the land, except the part owned by Mrs. Banowsky, which was sought to be set aside to her. It was not in truth a partition of the oil and gas lease or interest as between appellees and appellant. In this respect, the suit takes on more of the nature of a suit to remove cloud from title, caused by reason of appellant's illegal claim to an oil and gas lease on their part of the land. We see no reason why, under the statutes and settled practice, the joint owners might not have partition, although one of them had attempted to convey an oil and gas interest or lease upon more than she owned.
The motion for rehearing will be overruled, but we grant the motion of appellant for additional findings of fact. Supplementary findings made by us are as follows:
In the deed executed by G. B. Branton and wife, dated February 28, 1902, as recorded April 11, 1902, in volume 46, page 175, of the Deed Records of Eastland county, Texas, the word "heirs" is not repeated as in the original deed.
The first part of the deed from G. B. Branton and wife to Mrs. M. C. Banowsky (née Mrs. M. C. Arnold), dated October 23, 1918, recorded in volume 126, at page 575, of the Deed Records of Eastland county, Texas, reads:
"The State of Texas, County of Knox.
"Know all men by these presents that we, G. B. Branton and wife, L. B. Branton, of the county of Knox, state of Texas, for and in consideration of the sum of one dollar to us in hand paid by Mrs. M. C. Banowsky (née Arnold) the receipt of which is hereby fully acknowledged, the further consideration of the correction of the field notes in a deed executed by us to Mrs. M. C. Arnold, dated February 28, 1902, and recorded in volume 46, at page 175, Records of Deeds of Eastland county, Texas, which is here referred to for better description of the said deed and transaction, of which this deed is intended and does correct description of the land intended to be conveyed therein, but which said land was wrongly described in said deed, this deed is intended to and does take the place of said deed, to be a substitute for same in so far as the description is concerned, and for no other purpose, have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto the said Mrs. M. C. Banowsky, of the county of Eastland, state of Texas, all that certain lot, tract, and parcel of land lying and being situated in Eastland county, state of Texas, and known as tract No. 4, a part of the John F. Sapp survey and more fully described as follows."
The concluding portion of said deed reads:
"To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto, in any wise belonging, unto the said _____ heirs and assigns, forever, and we do hereby bind ourselves, our heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said Mrs. M. C. Banowsky, her heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof."
In purchasing the lease from Levi McCollum, and in paying the rentals to Mrs. Banowsky, the Texas Company in good faith relied upon the record title to said land, as shown by the deed records of Eastland county, Texas, and believed that Mrs. M. C. Banowsky had a good and fee-simple title to all of said land.
Motion for rehearing overruled.
Motion for additional findings granted, *Page 995