This is a suit brought by W. B. Hurst and his wife, Jewell Hurst, as plaintiffs, against Hugh A. Fry and his wife, Susan S. Fry, as defendants, to quiet title to the surface of, and to five sixths undivided interest in the oil, gas and other minerals underlying a 201.36 acre tract of land in Greer County, Oklahoma. Upon application of said original defendants, Catherine Kight was made an additional party defendant. Trial was had to the court, resulting in judgment for plaintiffs, from which the defendants have perfected this appeal. The parties will-be referred to as they appeared in the trial court.
The only issue in the case is whether or not the defendants Fry owned a one third undivided interest in said minerals. The assertion that they did constituted the gist of the answer of the defendant Kight and of the answer and cross-petition of the defendants Fry. They prayed for relief in the alternative — either that a deed from the Frys to Kight, plaintiff’s grantor, be determined to contain a reservation of said minerals; or that the same be reformed to effect such reservation which was allegedly the intention of the parties. The facts are simple and brief.
' In 1919 the fee title to the property here involved and the surface of an additional forty acres was conveyed to defendants’ grantor. ’ (The property thus conveyed comprised the fee of '241.36 acres less the oil and gas underlying one specified forty acres.) On February 25, 1941, by general warranty deed, the defendants Fry conveyed to the defendant Kight the entire: fee to said 241.36 acres without exception or reservation, except as contained in the habendum clause which provided as follows :
“To Have and To Hóld said described premises unto the said party of ' the second part, her heirs and assigns' forever, free, clear and discharged of and from all former grants, charges, taxes, judgments, mortgages and other liens and incumbrances of whatsoever nature. Except mortgage to Federal Land Bank of Wichita, Kansas, for $2,000.00, balance of principal being $1,500.00. Excepting one third of all Oil and Mineral Rights, undivided. Excepting all taxes including 1940.”
On January 30, .1943, the defendant Kight and her husband, by general warranty deed, conveyed to plaintiff, W. B Hurst, the entire fee to said 241.36 acres without exception or reservation other than that, in the habendum clause, it was provided that the covenant of title excepted “unpaid balance on a loan held by the Federal Land Bank of Wichita, Kansas; also except any mineral reservations now on record.”
*554The introduction of the three above described deeds in evidence constituted plaintiff’s case in chief. The balance of the evidence in the record consisted of testimony-relative to the intention of the parties in the execution of the deed from the defendants Fry to the defendant Eight and testimony aimed at establishing notice on the part of plaintiffs, at the time of the conveyance from'Eight to Hurst, that the defendants Fry were claiming a one third interest in the minerals. All parties admitted that the defendant Eight owned a one sixth interest in said minerals by virtue of a re-conveyance thereof from the plaintiffs.
In the cases of Echolustee Oil Co. v. Johnston, 153 Okl. 92, 3 P.2d 227, and Rose v. Cook, 207 Okl. 582, 250 P.2d 848, this court established the rule in this jurisdiction which precludes the wording of the Fry-to-Eight deed from being sufficient to constitute .a reservation of the minerals. Therefore, all- asserted claims or rights of the defendants depend upon their right to have said deed reformed. To establish such right to relief, the burden was upon them to prove first, the intent of the parties at the time of the execution of said deed; second, notice to Hurst, at the time of his conveyance from Eight, of the claims being made by Fry to the minerals. A failure to prove either of those two points was fatal to defendants’ position. The question of notice to Hurst of any such claim is determinative of the issues herein and will be first considered.
On the part of the defendants, the proof consisted, principally, óf a copy of plaintiff’s attorneys’ opinion of the title about the time the property was purchased. Said opinion was that of the attorney who, in this case, represents all the defendants. The attorney appeared as a witness for the defendants and testified that he had, as attorney for Hurst, examined the abstract of title when Hurst purchased the 241 acres; that, in addition to the opinion on the abstract, he had written a letter to Hurst stating that,
“You will observe that on the SW 40 of the SE^ of Section 35, all of the mineral rights have been reserved; and one-third of all minerals have been reserved to all the rest of it * * *
“This, barring the duplication of the first fort)'-, amounts to one-half of all the mineral rights, which are now reserved to former grantors. If, in addition to this, your grantor is to reserve any minerals, etc.”
With reference to the same proposition, the opinion on the abstract, written by said witness stated,
“Hugh A. Fry and Susan S. Fry deed said property by warranty deed to Catherine Eight, reserving a one-third interest in all oil and mineral rights, said deed being dated February 25, 1941.”
The only other evidence, on behalf of defendant relative to any notice to plaintiffs of a claim of Frys to the minerals, was the testimony of the defendant Eight. At the time of the trial in 1954, she was an old lady, 83 years of age. She testified that her husband was a real estate broker and handled the entire transaction with the plaintiffs; that she knew none of the details; did not know if she furnished an abstract; that the entire transaction was handled by correspondence and that all letters were written by her husband; that she did not read all of the letters received from plaintiff; that she didn’t know what the final contract with plaintiff provided; that she knew of no detail of the transaction except that the Frys were to retain one third of the minerals; that she read one of plaintiff’s letters wherein he stated that he wasn’t interested in the minerals and wanted the land for pasture and agricultural purposes only.
Plaintiff, W. B. Hurst testified, in his own behalf, to the effect that he did get the attorney’s opinion and letter; that he then sought the advice of other attorneys whose opinion was that the Fry-to-Eight deed did not constitute a reservation of any minerals; that it was upon this latter advice that he acted in purchasing the property; that he made no investigation as to any mineral interest claimed by the Frys. He also testified concerning his negotiations with the defendant Eight. His testimony on this point was that he had in*555formed the Kights that he was not necessarily interested in the minerals; that he would have purchased the surface without the minerals if proper reduction had been made in the purchase price; that he would not have purchased the surface only at the same price; that no adjustment was made in the price and he had no other idea than that he was to receive the surface and all minerals to the realty here involved and to receive the surface only of the additional forty acres but that he was to reconvey to Kight a one-sixth of the minerals so received. The deed to him from the Kights is in harmony with that testimony. It provided an exception in the warranty only as to "any mineral reservation now on record.” As above pointed out, there was no mineral reservation in the Fry-to-Kight deed. Therefore, there was no mineral reservation on record other than as to all the minerals underlying the forty acres which is not here involved.
Upon the evidence the trial court found all the issues in favor of the plaintiff and further specifically found that the Fry-to-Kight deed and the Kight-to-Hurst deed conveyed all the minerals underlying the lands herein. The court further found that the defendants were not entitled to have the Fry-to-Kight deed reformed.
Under such circumstances, it is not necessary to here determine whether or not the evidence on behalf of defendants, if uncontradicted, would have been sufficient to entitle them to the relief sought. The evidence in its entirety was at most conflicting and the judgment of the trial court was not against the clear weight thereof. This court on appeal will not disturb the judgment of the trial court in a suit of equitable cognizance where the same is not against the clear weight of the evidence.
The judgment is affirmed.
JOHNSON, C. J., and WELCH, DAVI-SON, HALLEY and HUNT, JJ., concur. WILLIAMS, V. C. J., and BLACKBIRD, J., dissent.