(dissenting).
The following was written to be the opinion of the court. I file it, with alterations and some additions, as my dissent.
This is a trespass to try title suit with an alternative plea that in the event the trial court held that a certain affidavit executed by I. A. McKee, now deceased, to be an instrument of conveyance, then, and in the event the interest purportedly conveyed was mistakenly designated as a “royalty” interest; and, further in the alternative, that there was no consideration paid for the royalty interest and that the appellees never claimed the royalty interest; and, since the affidavit used the word “royalty”, that a constructive trust arose.
On December 30, 1946, I. A. McKee, now •deceased, and wife, Annie McKee, sold to appellees C. W. Douglas and Jesse O. Douglas 38(4 acres of land in Wood County, Texas, and reserved unto themselves an undivided one-fourth non-participating royalty in and to the tract of land. The reservation reads as follows:
“The grantors herein as a further consideration herein do hereby reserve unto themselves, an undivided 14th interest in and to all the royalty on all •oil, gas, and other minerals produced from said land described herein, together with the right of ingress and •egress, with the understanding that the grantees herein shall have the right to lease said land for oil, gas and other minerals and collect the bonus or bonuses and all delay rentals under any such lease. Which interest shall be non-participating.
“It is understood that (4 of the Royalty has heretofore been sold to G. D. Greer and this Deed is made subject to said sale.”
There was no proof as to whether or not the sale of the (4 royalty interest sold •to Greer was participating or non-participating.
The 38(4 acre tract of land was the separate property of I. A. McKee. The property was conveyed to I. A. McKee on October 25, 1930, prior to his marriage to Annie McKee.
On August 27, 1942, I. A. McKee and wife, Annie McKee, executed an oil, gas and mineral lease for a 10 year period. Prior to September 16, 1947, I. A. McKee and wife, Annie McKee, received a rental payment on the land under the oil and gas lease. The royalty reservation by the McKees, being non-participating, they cashed the check and delivered the money to C. W. and Jesse O. Douglas. I. A. McKee advised them that an instrument should be prepared so that in the future the rental payments would be sent directly to the Douglases. An affidavit 'was prepared by a scrivener — not a lawyer — and was signed by I. A. McKee before a notary public. The Affidavit reads as follows:
‘ “AFFIDAVIT
‘ “THE STATE OF TEXAS 1 ‘ “COUNTY OF WOOD j.
‘ “Before me, the undersigned authority, a Notary Public in arid for Wood County, Texas, on this day personally appeared I. A. McKee, who after being duly sworn did depose and say:
‘ “That he is the same I. A. McKee, Grantor in deed dated Dec. 30, 1946, to C. W. and Jessee 0. Douglas, said deed being recorded in Vol. 289, page 322, Deed Records, Wood County, Texas, in which deed said I. A. McKee reserved (4 interest in all royalty on oil, gas, and other minerals in and under 38(4 acres of the Oscar Engledow Survey in Wood County, Texas. That subsequent to the filing of said deed Affiant and Grantees in said deed have reached an agreement whereby the said L A. McKee and wife Annie McKee relinquish any and all claims to any part of the royalty, as described in said deed, and hereby declare the *878same to be the property of C. W. and Jesse? O. Douglas, Grantees in said deed, and authorize the holder or holders of lease or leases on said land to pay the same to the said C. W. and Jesse? O. Douglas, in full.
‘ “I. A. McKee
‘ “Subscribed and sworn to before me this 16th day of September, A. D. 1947,
‘“C. C. Ferguson
Notary Public in and for
Wood County, Texas.” ’
The McKees did not have or adopt any children. I. A. McKee died Nov. 28, 1957, intestate. The suit was filed by Annie McKee, a widow, Jack McKee, M. J. B. McKee, T. R. McKee, Keith McKee, Maggie Newsom, a widow, Juanita Bailey and husband, W. E. Bailey, Mary McKee Huffman and husband, W. F. Huffman, and Winnie Young, a widow, surviving brothers and sisters, and a niece and nephew of I. A. McKee, against C. W. Douglas and Jesse O. Douglas. The defendants answered by a plea of not guilty and specially plead' the statutes of limitations.
Trial of the case was to a jury, and upon completion of the evidence the trial court instructed the jury to return a verdict in favor of the defendants. Appellants bring forward four points of error. '
By.their point 1, appellants complain of the action of the trial court for instructing a verdict against the appellants. It is the duty of this court to review the record with all the evidence in the case that is relevant to the issues and consider them in the light most favorable to-the appellants, disregarding all conflicts and indulge in every intendment reasonably deducible from the evidence in favor of ;the appellants. City of Houston et al. v. Chapman, 132 Tex. 443, 123 S.W.2d 652; Anglin v. Cisco Mortg. Loan Co., 135 Tex. 188, 141 S.W.2d 935; Wellington Oil Co. of Delaware v. Maffi, 136 Tex. 201, 150 S.W.2d 60.
According to the evidence, Mrs. McKee went to see C. W. Douglas in July of 1960. She talked to him about the royalty interest, and he admitted to her that they had reserved one-fourth royalty interest in and to the land at the time of the sale. C. W. Douglas told1 Mrs. McKee that he would sign an instrument acknowledging the fact that the ⅛⅛ royalty interest was reserved, and expressed a hope that she would be luckier than they were because royalty was slightly higher at that time. He further advised that he would sign an instrument acknowledging that the ¼⅛ royalty interest was reserved provided his son, Jesse Douglas, would sign the same. She further asked about the affidavit and the use of the word ‘royalty’ instead of the word ‘rental’ in the same. It seemed Mr. Douglas did not know anything about it. When Mrs. McKee returned with an instrument to correct the affidavit, C. W. Douglas suggested that she leave the instrument with him and he would get in contact with his son, Jesse. They later refused to sign the same.
The appellees take the position that the appellants have been overcome by the statute of limitations by not taking action sooner. The appellants base their claim upon the case of Biggs v. Poling et al., Tex.Civ.App., 134 S.W.2d 801, err. dism., judgment correct. The facts in that case show that there was a mistake made in a royalty deed as to the amount of the royalty interest conveyed. The heirs of the original owner were not barred after 13 years by the statute of limitations from reforming the instrument to speak the true intent of the parties. Mrs. McKee did not know about the contents of the affidavit until July of 1960. At this time she learned for the first time about the affidavit being recorded. She immediately began proceedings to try to get the affidavit corrected to speak the truth. She knew the word ‘royalty’ should have been ‘rental’. She filed her suit on May 18, 1961. Until July, 1960, after the affidavit was signed, she remained ignorant of her rights, and no limitation ran against her. McGowen v. Montgomery, *879Tex.Civ.App., 248 S.W.2d 789, N.W.H. Under such circumstances, and against such a mistake of law, equity will grant relief by way of re-formation if the circumstances otherwise warrant an exercise of its power. Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62. I would sustain the point of error.
By their Point 2, appellants say the court erred in granting an instructed verdict because the deed which reserved the ¼⅛ royalty interest to the grantors passed title to the appellant, Annie McKee, in her own individual right, and she has never filed an instrument conveying the interest to the appellees. There is no pleading or evidence in the record to support a gift from I. A. McKee of any of his separate property to Annie McKee. It seems that she merely signed the deed as a matter of form. Under the pleadings and the evidence in the case, the point of error is without merit and should be overruled. Leidig et al. v. Hoopes et al., Old., 288 P.2d 402; Pruett et al. v. Burrow et al., Okl., 291 P.2d 349.
By their third point, the appellants say the trial court erred in not allowing them to swear to their petition and to introduce testimony to show that no consideration was paid by the appellees for the ¼⅛ undivided royalty interest at the time of the signing of the affidavit. It was stipulated at the beginning of the trial that the plaintiffs could file a general denial and a special denial to the last pleadings filed by the defendant. The appellees did not file any exceptions to the pleading on the grounds that they were not sworn to, and objected to the offer of testimony showing that no consideration was paid at the time of the execution of the affidavit. Ramsey v. Cook, Tex.Civ.App., 231 S.W.2d 734, N.W.H. The appellants had affirmatively plead that no consideration was paid. They did not swear to their petition. It seems that under Rule 93 Vernon’s Ann.Tex.Rules Civ.Proc. a denial of an allegation in the plaintiff’s petition that is founded upon a written instrument must be under oath. It seems that the only provision of the rule upon which the trial court could have assumed the necessity of swearing to the petition is Sec. (j) of Rule 93, which reads as follows: “That a written instrument upon which a pleading is founded is without consideration, or that the consideration of the same has failed in whole or in part.” (Emphasis added). Later in Rule 93 under an unnumbered paragraph it reads in part as follows: “Any such denial may be made in original or in amended pleading; * * (Emphasis added). The appellants’ pleadings do not seem to be an instance contemplated by Rule 93. Under the theory of a suit in the nature of a trespass to try title, the pleadings would not come under the rule. The alternative pleading that a constructive trust arose, in the event the court held that the affidavit was an instrument of conveyance, does not come under the rule. Barnard v. Blum, 69 Tex. 608, 7 S. W. 98.
The appellants offered to amend their pleading by swearing to the petition at that time. The trial court refused the offer. This was error. In re Laughlin, 153 Tex. 183, 265 S.W.2d 805; Westinghouse Electrical Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422. I would sustain the point.
By their Point 4, the appellants say the trial court erred in holding that the affidavit was an instrument of conveyance. The affidavit is quoted in full hereinabove. As one studies the affidavit carefully it can readily be seen that the scrivener, not being a lawyer, could have erroneously used the word “royalty” instead of the word “rentals”. If the trial court believed the affidavit to be an instrument of conveyance, the appellants should have been permitted to submit a special issue to the jury for a finding of fact as to whether or not the word “rental” should have been substituted in the affidavit for the word “royalty”. For a related factual situation, see Harris v. Windsor, 156 Tex. 324, 294 S.W.2d 798. I would sustain the point.
*880As I view the record, two grown men are being permitted to steal an undivided one-fourth royalty interest in and to 38½ acres of land from a widow-woman and the next of kith and kin of her deceased husband. The affidavit, which was prepared by someone other than a lawyer, has been held to be an instrument of conveyance. According to the record, the one-fourth of the royalty was reserved. The grantors later received a rental payment. They cashed the check and gave the money to the grantees. Mr. McKee suggested that an instrument be fixed up so the future rentals would be paid to the grantees. Fanning refers to the affidavit as a Quitclaim Deed and an instrument of conveyance. Anyone with intelligence enough to pour water out of a boot, with the toe cut out, and the directions on the heel, would know that the affidavit is not a Quitclaim Deed or an instrument of conveyance of a one-fourth royalty interest; but was intended to refer to the rentals. This is another reason why an instrument such as the affidavit prepared by a person, other than a lawyer, should not be permitted to be offered in evidence. The law should require an instrument pertaining to the title to real estate be prepared by a lawyer, or that it bear the certificate of a lawyer as to its intent and purpose. The jury twice refused to return the instructed verdict. If it had been permitted to return a verdict of its own choosing, it would probably have been in favor of the appellants.
The affidavit was offered into evidence by the appellees as “what they believed to be a Quitclaim Deed”. Under objections by appellants, the affidavit was, under instructions by the trial court, referred to as “an instrument”. Appellees offered the same into evidence, without any reservations, and they are bound by everything it says, including the fact that it does not show that any money or thing of value was given therefor. Lock et al. v. Morris et al., Tex.Civ.App., 287 S.W.2d 500, w. r., n. r. e.
If the affidavit had been intended to be a Quitclaim Deed, or an instrument of conveyance, it should have so stated.
I would reverse and remand the case for a new trial.