Under the facts of this case, I cannot agree that it was necessary for the court to submit an issue inquiring whether the parties intended to convey to each other a one-half mineral interest in the tracts of land exchanged.
The settlement agreement with which we are here concerned was executed on September 3, 1969. On December 12, 1969, Mrs. Porter entered into a contract with T. Van Stigall and Don V. Stigall calling for *Page 156 the sale by Mrs. Porter to the Stigalls of certain land, including the 40-acre tract which, under the terms of the settlement agreement, was to be conveyed to Mrs. Porter by the Thalmans. This contract of sale provided that the Stigalls were to "receive no less than One-Half of all Minerals and Royalty." Clearly, in order for Mrs. Porter to comply with her obligations to the Stigalls under the contract, it was essential that she receive from the Thalmans at least one-half the mineral interest in the land conveyed to her by the Thalmans in compliance with the agreement to exchange lands.
Andrew Johnson, Esq., an attorney and owner of a title company, was handling the closing of the sale by Mrs. Porter to the Stigalls. Since the Thalman-Porter settlement agreement had not been consummated, it was necessary that Mrs. Porter obtain title to the 40 acres which she was to receive under such agreement. A deed of conveyance of the Thalman property to Mrs. Porter was delivered to Mr. Johnson by Mrs. Porter's attorney, W. O. Murray, Esq. Mr. Johnson returned this deed, dated December 9, 1969, to Mr. Murray because there was a discrepancy in the acreage being conveyed to Mrs. Porter and because the deed called only for the signature of Mr. Thalman rather than of Mr. and Mrs. Thalman.
After Mr. Johnson's objections to the Thalman conveyance had been corrected, the sale by Mrs. Porter to the Stigalls was consummated. During the period when attempts to consummate this transaction were being made, Mr. Johnson was, in his words, "Trying to see if Mrs. Porter (was) going to be able to deliver, according to the terms of the Escrow Contract (with the Stigalls), not less than one-half of the minerals that she (was) receiving from the Thalmans."
All of the deeds which were finally executed in carrying out the Thalman-Porter settlement agreement were prepared by Mr. Murray, Mrs. Porter's attorney. Mr. Murray testified that, in preparing the deeds it was at all times his intention, as attorney for Mrs. Porter, that there be an exchange of "equal mineral interests" so that the Thalmans and Mrs. Porter would own equal mineral interests in the lands being exchanged. He said this was the result "we wanted," and that the intent of the settlement agreement was that after the exchange of lands the Thalmans would own the same mineral interest in the land they received from Mrs. Porter that they had in the land which they conveyed to Mrs. Porter.
Mr. Murray's testimony concerning his intention is supported by his statement that when he saw the deed first tendered to him by the Thalmans, prepared by their attorney, he noted the 25-year reservation as to one-half of the minerals. He concluded that he should place a similar reservation in the deed from Porter to the Thalmans, believing that by adding such reservation the parties would then be conveying equal mineral interests to each other. He, apparently, did not realize that the effect of adding such additional reservation to the deed he prepared for Mrs. Porter's signature would be that the Thalmans received no present mineral interest whatever.
Appellant's suggestion that since both the Thalmans and their attorney had an opportunity to read the deeds in question they cannot now claim that they failed to realize that the Porter deed failed to convey any of the minerals must be rejected. Fireman's Fund Indemnity Co. v. Boyle General Tire Co., 392 S.W.2d 352 (Tex. 1965); Porter v. Thalman, 516 S.W.2d 755 (Tex.Civ.App. San Antonio 1974, writ ref'd n. r. e.).
There is testimony that, in the negotiations leading to the execution of the settlement agreement, it was agreed that each party was to convey to the other one-half of the mineral interest in the lands being exchanged. In order to comply with her obligations under the contract with the Stigalls, it was essential that Mrs. Porter receive one-half of the mineral interest from the Thalmans. Her lawyer knew that the deed he finally prepared for the signature of the Thalmans conveyed a one-half mineral interest. Clearly, when she executed the contract with the Stigalls, Mrs. Porter contemplated *Page 157 that the Thalmans, in performing their obligation under the settlement agreement, would convey one-half of the mineral interest to her. When she executed the deed to the Stigalls, conveying one-half the interest in the land which she received from the Thalmans, she knew the effect of the Thalman deed and, certainly, at all times when she contemplated receiving such mineral interest from the Thalmans, she was aware of conveying an equal interest to them. Under all the circumstances, her testimony by deposition that she never intended to convey any mineral interest to the Thalmans in performance of the settlement agreement is inherently unbelievable. The overt actions of all parties, including their attorneys, indisputably establish that the intent of the settlement agreement, as interpreted by the parties, was that each party convey to the other one-half of the minerals.
Under such circumstances, the submission of an issue inquiring as to the percentage of minerals to be conveyed under the agreement was not required.