It was agreed by the parties to this suit that during the marital relations existing between Emanuel Reese and Jennie Reese, deceased, they became the owners of the four tracts of land, three of which are described by metes and bounds in a certain deed offered in evidence in this suit, and one 10-acre tract not so described; that while Emanuel and Jennie Reese still owned such lands as their community property, Jennie Reese died intestate and left surviving her two children, namely, Mary Jane Reese and Andrew Reese, as her sole heirs, each of whom inherited from their mother, Jennie Reese, one-half undivided interest in the one-half of the four tracts of land belonging to her estate; that Andrew Reese died intestate while the owner of one-half undivided interest in the estate left by his mother, Jennie Reese, and left surviving him the defendants in this suit as his sole heirs.
On the 4th day of January, 1921, the defendants, all the heirs of Andrew Reese who inherited one-half of the estate of Jennie Reese, executed and delivered to H. F. Granau, Sr., a deed of conveyance wherein it is recited that Andrew Reese was dead; that before his death he inherited an undivided one-fourth (not one-half, as the facts show) interest in the estate of Jennie Reese, deceased; that they (the grantors), as sole heirs of Andrew Reese, were entitled to an undivided one-fourth of the estate left by Jennie Reese; that being the owners of such undivided interest in said estate they, in consideration of $500 to them in hand paid by Granau, Sr., were conveying to Granau, Sr., "all our one-fourth undivided interest in and to the estate of Jennie Reese, and more particularly our one-fourth undivided interest in and to: (Here three tracts of land are described by metes and bounds).
"To have and to hold the above described premises, together with all and singular, the rights and appurtenances thereto in anywise belonging, unto the said H. F. Granau, his heirs and assigns forever."
The deed mentioned was accepted by H. F. Granau, Sr., and by him duly filed for record, and the same was duly recorded. *Page 595
H. F. Granau died in June, 1927, and the plaintiffs in this suit, the widow and children of Granau, Sr., became the owners of such undivided interest in the land in controversy as was conveyed to him by the aforementioned deed.
The plaintiff's having discovered that the 10-acre tract of land was not specifically described, as were the other three tracts conveyed by the deed of the defendants to H. F. Granau, Sr., brought this suit on the 20th day of May, 1929, against the defendants, praying for a reformation of the aforementioned deed so as to have a description of the said 10 acre tract in controversy embraced therein.
The plaintiffs, in effect, alleged that the defendants inherited from their grandmother, Jennie Reese, an undivided one-fourth interest in her estate; that by the deed of the defendants to Granau, Sr., they conveyed to him all of such one-fourth undivided interest, but through mutual mistake of themselves and Granau, Sr., there was omitted from the deed a description of the 10-acre tract in controversy, a part of which belonged to the estate of Jennie Reese, deceased, from whom they inherited an undivided one-fourth of her estate; that it was the purpose and intention of both defendants and Granau, Sr., to have the description of said 10-acre tract inserted in the deed; that, notwithstanding a description of such 10-acre tract was not included in the deed, such deed did on its face and in fact convey all the one-fourth undivided interest in the estate of Jennie Reese inherited by defendants; that by reason of such omission the defendants were now claiming that they did not convey their interest in the 10-acre tract, and in so doing were casting a cloud upon the title of plaintiffs to their interest in said 10-acre tract.
In the alternative, they averred that, should the court hold the deed insufficient as written to convey to Granau, Sr., defendants' interest in the 10-acre tract in controversy, then they say that at the time of the execution of such deed such interest had in fact been sold by defendants to Granau, Sr., and all parties to the deed had mutually intended for it to be included and particularly described therein, and that, due to no negligence upon the part of Granau, Sr., but to a mutual mistake, was omitted therefrom; that Granau, Sr., through no lack of diligence, nor failure to use due care, discovered such mistake only two months before his death on June 15, 1927.
They prayed for judgment construing the deed as conveying to Granau, Sr., the appellants' one-fourth undivided interest in the 10-acre tract involved, and for decree removing all cloud from appellees' title thereto by reason of the premises, and, in the event the court should hold the deed insufficient upon its face as a conveyance of the one-fourth interest in the 10 acres, that it be reformed and corrected so as to include the description of the same, and for general relief.
Defendants answered by general denial, and specially denied that they sold or conveyed their entire interest, which they had inherited from Jennie Reese, to Granau, Sr., and by pleading the four years' statute of limitation, article 5529, Revised Statutes of this state, in bar of the plaintiffs' right to have the deed reformed.
On a trial before the court without a jury, judgment was rendered for the appellees divesting the appellants "of all interest in one-fourth undivided interest in and to the estate of Jennie Reese, deceased," as of the 4th day of January, 1921, "including 10 acres of land in the W. C. White league," the court construing the deed as conveying — though it did not specifically describe — the interest in the 10 acres to them, but further decreeing the removal of the cloud therefrom cast on it by appellants' adverse claim, and the reformation of the deed so as to include the specific description thereof; pursuant to request, findings of fact and law were subsequently filed.
It will be noted that the allegation of the plaintiffs' petition relative to the undivided interest of the estate of Jennie Reese inherited by the defendants was in effect that it was an undivided one-fourth of such estate. They alleged that by the deed mentioned defendants conveyed all of such one-fourth interest of such estate to Granau, Sr.
While the plaintiffs made no prayer for a judgment divesting defendants of all interest in the one-fourth undivided interest in and to the estate of Jennie Reese, as of the 4th day of January, 1921, the date of the deed from them to Granau, Sr., except as to the 10-acre tract, the court by its decree divested defendants of all of the one-fourth undivided interest in the estate of Jennie Reese, including the 10-acre tract.
I think the deed of defendants on its face clearly and without ambiguity conveyed to Granau, Sr., an undivided one-fourth of the estate of Jennie Reese, deceased, including the 10-acre tract, and no more, which still leaves defendants a title to a one-fourth undivided interest in such estate, as they inherited through Andrew Reese an undivided one-half of the estate.
I think the court correctly held that defendants by their deed conveyed to Granau Sr., one-fourth of all the estate of Jennie Reese. Neither the pleadings of plaintiffs nor the evidence would justify any other holding. The judgment of the court, however, has decreed a reformation of the unambiguous deed, over the plea of limitation pleaded by defendants, and the majority of this court has by the majority opinion affirmed such judgment. The writer feels constrained to dissent from the affirmance of so much of said judgment, first, because the deed was not ambiguous; *Page 596 and, second, if it was, plaintiffs' right to have it reformed was barred by the statute of limitation pleaded by defendants.
The statutes of limitation as applicable to a cause of action contemplating the reformation of an instrument prescribes that the same shall be brought within four years after the mistake is discovered, or after it should have been discovered by the exercise of reasonable care, and the computation of the period prescribed by the statute is not from the time of the making of the mistake, but from the time that the mistake was discovered, or by the exercise of reasonable care it should have been discovered.
The deed, as already shown, was executed and delivered to Granau, Sr., on the 4th day of January, 1921, and was by him accepted and promptly filed for record. It was Granau's duty to familiarize himself with the contents of the deed before accepting the same and filing it for record, and neither he nor those holding under him should be heard to say that he did not discover the alleged mistake until two months before his death in June, 1927, about six years after the delivery of the deed to him. Nothing is shown which excused Granau, Sr., from discovering the alleged mistake when the deed was executed and delivered to him. He is chargeable with having knowledge of such mistake at that time. Therefore limitation began to run from that time against plaintiffs' cause of action for the correction of the alleged mistake. Cleveland State Bank v. Gardner (Tex.Com.App.) 286 S.W. 173; Gulf Production Co. v. Palmer (Tex.Civ.App.)230 S.W. 1017.
There was no evidence that Granau did not discover the mistake at a time more than four years before he died, and certainly, if he did not discover such mistake earlier, it was because he was guilty of negligence in not examining the deed before accepting the same and filing it for record.
It has been often held by our courts that one cannot defeat his written contract by asserting that he did not read the same or know its contents before signing, unless upon a showing that his signature thereto was by means of fraud, duress, or some other unlawful means, or that he had no opportunity to read the same before signing. The same rule should apply where one accepts a contract executed by another with the intention that it should bind, and which in fact does bind, both parties thereto.
Having reached the conclusions above expressed, I dissent from so much of the opinion of the majority as affirms the judgment decreeing a reformation of the deed in controversy.