dissenting. As background to my dissent I think it appropriate to briefly sketch the history of the litigation. C. G. Johnson, as grantee of Willie Johnson, brought this suit against Ernest Ford to reform the deeds between Ford and Willie Johnson, “. . . to include a full mineral reservation in accordance with the understanding, agreement, and intention of ...” Willie Johnson and Ernest Ford, “. . . at the time of the conveyance.” In deciding against the plaintiff the Chancellor rendered a well considered written opinion of three typewritten pages; and I quote his conclusions:
“Thus we see that no action was ever brought by Willie Johnson against Ernest Ford, and no action was brought by C. G. Johnson, grantee of Willie Johnson, for several years, and until the payments for oil began to be distributed.
“The court, after giving full consideration to all of the evidence and matters presented, is of the opinion that Plaintiff cannot prevail in this cause because:
“I. In order to reform a. deed, the evidence on the part of the party seeking the reformation must be ‘Clear, convincing, unequivocal, decisive and beyond a reasonable doubt.’ (168 Ark. 842.)'
“In this case the plaintiff did not know and could not testify with reference to any understanding or agreement between Willie Jolmson and Ernest Ford, back eight years ago, when they divided the property and exchanged deeds. It is admitted that nothing was said about any mineral reservations by the parties or to the scrivener (or attorney) who prepared the deeds.
“II. ‘Equity aids the vigilant.’ In this, cause, as stated before, eight years had elapsed since Ford and Willie Johnson exchanged deeds and six years since Willie Johnson executed his Mineral Deed to Plaintiff. During this time Plaintiff took no action to have the Deeds reformed, and no action was ever taken between the original parties to the exchange of deeds or has ever been taken until the discovery of oil on the property.
‘ ‘ The Court therefore finds that Plaintiff’s complaint should be dismissed for want of equity.”
On appeal, C. Gr. Johnson has urged only two points:
“I. The intention of the parties was that mineral ownership should not be disturbed and appellant is entitled to reformation.
“II. The doctrine of laches does not apply to the facts in this case. ’ ’
The majority opinion is reversing the Chancery decree on some theory of partition that I do not find discussed in the briefs. I regard the majority opinion as an extremely dangerous holding because it will tend to disturb titles in every instance when the property may be found to possess value for oil and gas. The majority opinion says of the deeds between Willie Johnson and Ernest Ford: “. . . in our opinion the deeds actually conveyed only the surface interest and had no effect upon the mineral ownership. ’ ’ I certainly cannot agree with the foregoing quotation. Willie Johnson received a deed from. Hadley which conveyed an undivided one-third interest in the thirty-eight acres of land. It was a general warranty deed, with no reservation of mineral rights. Ernest Ford received a deed from the Hadleys to the remaining undivided two-thirds interest in the thirty-eight acres of land, but that deed contained this specific mineral reservation : “The grantors do not sell but reserve to themselves, their heirs and assigns, an undivided 5/12 of the oil, gas and other minerals in, under and upon the above described land.”
Thus, when Willie Johnson and Ernest Ford met to effect their partition, Willie Johnson owned an undivided four-twelfths interest in both the land and minerals; and Ernest Ford owned an undivided eight-twelfths interest in the surface and an undivided three-twelfths interest in the minerals. By general warranty deed, with no reservation of minerals, Ernest Ford conveyed to Willie Johnson the north 12.8 acres of the thirty-eight acres. At the same time, Willie Johnson, by general warranty deed and with no reservation of minerals, conveyed to Ernest Ford the south 25.2 acres of the thirty-eight acre tract. There is not one word in either of the deeds that shows it was a partition deed, or that there was any reservation of minerals.
We have a long line of cases in Arkansas which hold that a deed accurately describing the land and without reservation includes the minerals as well as the surface. In Long Prairie Levee Dist. v. Wall, 227 Ark. 305, 298 S. W. 2d 52, we said: ‘ ‘ The land, as we have said, was accurately described, and such an unqualified description includes the minerals as well as the surface. Osborne v. Ark. Ter. O. & G. Co., 103 Ark. 175, 146 S. W. 122; Maloch v. Pryor, 200 Ark. 380, 139 S. W. 2d 51.” So I insist that these deeds between Willie Johnson and Ernest Ford by law carried the minerals as well as the surface. To hold otherwise is to cast a doubt on our holdings in the three cases just mentioned, and also will tend to disturb titles in every instance when the property is found to possess value for oil and gas. For this reason alone, I think the majority should find some other reason for reversing the Chancellor, rather than the one assigned in the opinion.
The majority bases its holding on some language in Hutchison v. Shepherd, 225 Ark. 14, 279 S. W. 2d 33, wherein each tenant owned an undivided life interest and also each had a possibility of inheriting an unvested remainder. In that case the Court held that the partition deeds merely partitioned the vested life estate and had no application to the possibility of unvested remainder. The Court said, inter alia: ‘ ‘ The law sensibly holds that when co-tenants simply agree upon a division of the common property with no independent consideration being paid, their purpose is taken to be the severance of the unity of possession rather than the creation of a new estate in either party. ’ ’ That holding was correct in that case, because the parties then had only vested life estates.
I maintain that the holding in Hutchison v. Shepherd, supra, has no application to the case at bar because, here, Willie Johnson and Ernest Ford were tenants in common, both to the surface and to the minerals.1 When Willie Johnson and Ernest Ford exchanged the general warranty deeds between themselves, they were tenants in common both as to surface and minerals; and the general warranty deeds conveyed all the interest that each had. I think it is an unreasonable and undue extension of the holding in Hutchison v. Shepherd to apply it to the case at bar.
It has been said that, “Hard cases make bad law”; and the case at bar is a splendid example of that statement. Here, the net result of the transaction was for Ernest Ford to get a considerable portion of the minerals that Willie Johnson owned. Willie Johnson and his grantee could have sued for breach of warranty within the proper time, or they could have proceeded to offer more evidence of fraud or mistake. But, in the absence of such, the majority opinion in the case at bar, in order to keep Ernest Ford from getting too much of Willie Johnson’s minerals, is applying a theory that does violence to our holdings on unqualified deeds conveying minerals. It would be far better for the majority to find some other theory on which to reverse the case, rather than to do violence to the rules on conveyancing.
I respectfully dissent from the majority holding.
Of course, the Hadleys were also tenants in common with them regarding the minerals.