(dissenting).
After granting the writ of error upon the point that the action of the plaintiff-respondent was barred by the four-year statute of limitation, this being the first and primary one of the petitioner-defendant, we dispose of the case — incorrectly, I believe — upon the secondary point that the findings against (a) existence of an agreement to exclude the strip (and half of a garage building) in dispute and (b) the mistake of including the latter in the deed were supported by the evidence, contrary to the holding of the Court of Civil Appeals.
On the surface, the argument of the court’s opinion is not unimpressive, but actually one can have little doubt that the mistake occurred. In fact able counsel for the petitioner rather obviously refrains from denying that the oral agreement between the original purchaser, Martin, and the respondent-plaintiff as vendor was actually made. He says “Undoubtedly, the matter was discussed with Martin” (the witness Twombly, who so testified, thus at least to that extent admittedly told the truth). And certainly, when we consider that the strip in question was but a continuation of a corresponding strip reserved more or less contemporaneously on the adjoining lot and that a single and quite substantial garage or tool building (antedating the garages forming part of the new residences on the respective lots) occupied the greater part of both strips, the reservation would be more natural than its absence. Why should the vendor sell half of a garage building at the extreme rear of a lot which already had a new whole garage? And why, if the reservation was not intended, would the vendor, less than two weeks later, expressly reserve the corresponding 'strip, including the other half ■ of the garage building, in the sale of the adjoining lot? In the latter sale it is quite significant -that the written contract, like the written contract with the Martins, omitted the reservation, whereas the deed, unlike the deed to the Martins, included the reservation. And why would the Martins, for some four years, and until they were selling the residence to Grisham in mid-1946, raise not even a question, much less a complaint, about the openly continued exclusive use and occupancy of the garage by the respondent-plaintiff, which the jury itself found to be by way of “acquiescence,” there being no explanation such as a lease or license?
The statement that “the testimony as to the reservation is contradicted by each and every written instrument in the record affecting the transaction” sounds convincing. But naturally, every case of a mistake involves, in a sense, a contradiction between the' instrument in question and the testimony of the mistake, and if that sort of contradiction’ is evidence against existence of the mistake, so as to prevent the latter from being established as a matter of law, then, indeed, mistake is the one instance in all our jurisprudence, wherein the existence of facts can never be established as a matter of law. But in the sense which is appropriate to the actual situation, there is no contradiction between 'any instrument in the record and the erstwhile uncontradicted evidence of the mistake. The fact- simply is that the same mistake was made not unnaturally in all of the instruments executed at or about the time of the sale, all or most of them having been drawn by Gibraltar which, as the lender in the transaction, was naturally more concerned with its own interests than those of anyone else save perhaps the F.H.A.' The 1944 release by the respondent-plaintiff of the second lien “side-note” of the Martins, being a mere release executed some two years after the sale, would naturally not be studied by the party executing it with reference to whether or not it mentioned a small reservation intended to have been made in the *8061942 deed. Certainly Martin went on for two years after the release, acquiescing in the possession and use of the garage building by the releaser and never questioning the oral reservation until his 1946 negotiations with Grisham.
And there are documents (if not “instruments”) which clearly point to the mistake. What of the drawings, covering both of the two lots in question and the improvements, which were sent to Gibraltar with the reservation clearly shown on the first pages respectively, shortly prior to the oral agreement between the Martins and Twombly? And what of the notation at the bottom of the credit report of Martin sent to Gibraltar about the same time stating, “This is a short lot?” Surely if Twombly told the truth to the extent the reservation was “discussed” with the Martins, as he ad.mittedly did, we should also believe his testimony that this notation was made by him with the knowledge and in the presence of Martin. Not only that, but we have also the above-mentioned fact that the 1946 negotiations between Martin and his vendee, Grisham, first raised the question of whether Martin owned the strip in litigation or not and caused the interested parties to go to the deed. In view of the deed, why should there have been any question about the matter, unless Martin had made the agreement which Twombly swore .he did? I recall not a word of evidence that anyone connected with the respondent-plaintiff said anything about its rights to the strip in the period between the execution of the deed in 1942 and the negotiations between Martin and Grisham in 1946.
There is, moreover, no contradiction of the testimony of Twombly and Dickey that the price in the sale to Martin and wife would have been $150 higher but for the agreement to reserve the strip in question; nor is there any contradiction of their corresponding testimony as regards the sale to the Walkers very shortly thereafter.
The petitioner-defendant argues principally that the dates of the admitted “discussion” of the reservation with Martin, the 'Jüly 10, 1942 request (written by Gibraltar) to F.H.A. to modify the commitment so as to exclude the strip, the July 13th refusal of F.H.A., and the July 16th written contract of sale (describing the lot without any reservation) are such as to justify a jury inference that the F.H.A. refusal caused an abandonment by the respondent-plaintiff itself of any oral arrangement to reserve the strip and consequent execution of the contract without mention of such a reservation. In the light of all the evidence in the case, it seems to me that the circumstances of the sale of the adjoining lot to the Walkers conclusively refute the inference suggested. The written sales-contract form signed by the Walkers (it was not signed by the vendor) on July 25, 1942, or some nine days after the Martin contract, likewise made no reservation (of the corresponding strip on which the east half of the garage building was located). It seems clear from the evidence that the terms of the F.H.A. commitment in that instance, too, failed to mention any reservation. Presumably the deed of trust from the respondent-plaintiff on the Walker lot also failed to mention it. And yet the August 13th deed to the Walkers, executed only twelve days after the deed to the Martins, contained the reservation. As before suggested, why should a vendor thus reserve a mere half of a garage building and the corresponding strip, if he had consciously parted already with the other half and corresponding strip on the Martin lot?
As to the main point in the case, doubtless there is little reason now to discuss it fully, although it is both of importance and interest. The test of whether the four-year statute bars the respondent-plaintiff is, of course, whether it is seeking to enforce an equitable title or, by court decree, to convert a mere equitable right of reformation into an equitable title. What the action may be denominated by the pleader —whether reformation, removal of cloud, trespass to try title or otherwise is not material. The nature of the right in question is what counts.
This is quite clear from long-standing decisions of our court, both those holding *807the statute applicable, e. g. McCampbell v. Durst, 15 Tex.Civ.App. 522, 40 S.W. 315, wr. of error dism., for want of juris., 91 Tex. 147, 40 S.W. 955; Cleveland State Bank v. Gardner, Tex.Com.App., 286 S.W. 173, and those holding it inapplicable (e. g. Gilmore v. O’Neil, 107 Tex. 18, 173 S.W. 203; Texas Company v. Davis, 113 Tex. 321, 254 S.W. 304; Thomason v. McIntyre, 113 Tex. 220, 254 S.W. 315; State Mortgage Corp. v. Ludwig, 121 Tex. 268, 48 S.W.2d 950, 955).
The difficulty in this aspect of the case has arisen from a slight misinterpretation of the language of decisions such as the State Mortgage Corp. case, in which it was said that, “Defendants in error and their ancestor having continued in actual possession of the lots, their suit was not barred by the four years’ statute of limitations”. See also Payne v. Ross, 10 Tex.Civ.App. 419, 30 S.W. 670; Howard v. Young, Tex.Civ.App., 210 S.W.2d 241, wr. of er. refused “no reversible error,” and Strong v. Garrett, 148 Tex. 265, 224 S.W.2d 471. The Court of Civil Appeals evidently, and in my opinion-erroneously, considered these decisions as authority for the proposition that, where the party seeking reformation or cancellation happens to be in possession of the land involved, that fact alone will defeat application of the four-year statute, even though the possessor should have no equitable or legal title, but merely an equitable right.
Such a view appears unjustified in the light of the decisions first above cited. Justice Greenwood wrote the opinion in the State Mortgage Corp. case as well as that in Texas Company v. Davis, which he cites in the former immediately following the language above quoted. He also wrote Thomason v. McIntyre, supra, in which he carefully explained the Texas Company case as requiring a title, legal or equitable, in order that the “owner” of the land might not be barred by the four-year statute in his action apparently involving reformation or some other equitable remedy. As shown in Gilmore v. O’Neil, supra, the matter of possession is important in such cases only as a circumstance bearing on the question of title. The situation is somewhat analogous to that wherein the validity of a parol transfer of land is influenced -by matters .such as transfer of possession and the making of improvements. See Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216. The matter of equitable title as related to the four-year statute is also dealt with in trust cases such as Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471, and McDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334, as well as in specific performance cases such as Johnson v. Wood, 138 Tex. 106, 157 S.W.2d 146.
But in the instant case, while the possession of the respondent-plaintiff alone would not protect it from the bar of the statute, the mistake, plus the fact that in effect no consideration was paid, by the Martins for the strip in question, plus the retention and maintenance of possession, does raise a serious question of equitable title in the respondent-plaintiff as distinguished from a mere equitable right of reformation. The question is a close one, and, of course, there is lacking the element of improvements, so important in statute of frauds cases. However, I think the facts afford sufficient basis to support the claim of equitable title and that the otherwise applicable four-year statute does not control.
I would affirm the judgment of the Court of Civil Appeals.