On Motion for Rehearing
Appellants have filed a vigorous motion for rehearing in which certain assertions are made by the writer, which, in his calmer moments he would not have indulged.
The burden of appellants’ contention is that, under the facts in this case, appellee, grantor in the deed from him and Amos Ward to Belitsky, is charged, as a matter of law, with knowledge of the contents of the deed. They cite the cases of Kennedy *222v. Brown, Tex.Civ.App., 113 S.W.2d 1018 (writ dismissed) and Kahanek v. Kahanek, Tex.Civ.App., 192 S.W.2d 174.
.We have been requested by the appellants to discuss those two cases in relation to the facts of this case. Those cases hold that as a general rule a grantor is charged with knowledge of the provisions in his deed; and that limitation begins to run against any action by him to correct a mistake in his deed from the date of the execution and delivery of the instrument. We recognize that as being a general rule, but both of these cases cited above reveal that they each recognize an exception to that rule. This exception is clearly set out in the Kennedy case [113 S.W.2d 1020], as follows: “It is equally as well established by the authorities that in such cases limitation does not begin to run until the mistake is discovered or should have been discovered by the exercise of such diligence as would be exercised by a person of ordinary care and prudence.” Citing cases. Great stress in those cases is laid upon the fact that the grantor in each case had the deed prepared and delivered to the grantee. And in the Kennedy case it is stated further: “It is neither alleged nor shown by the evidence that appellants did any act or thing which could be construed as an assurance to ap-pellee [grantor] that the deed was written as contemplated by the contract [reserving the mineral interest] or that could have had the effect of lulling appellee into a sense of security in reference to the matter.” (Italics ours.) We think that the above holding is also the holding of the court in the Kahanek case, which cites the Kennedy case as a basis for its holding. Thus it is clear that in the above cases had the facts shown that the grantees in the deeds involved in those cases had done any act or made statements which would have been sufficient to lull the grantor to sleep, then it seems to us that limitation under the exception set out above would not have begun to run against the grantor until they had discovered the mistake.
In applying the holdings in those cases to the facts of the case at bar, we find that appellee Birdsong was grantor in a technical sense only. The trial court found that Belitsky was acting as agent for Amos Ward and his wife, and that Belitsky as agent approached Birdsong at a-pool hall, to pay off the notes held by Birdsong against the Wards’ land. At the time Belit-sky approached Birdsong, the latter not only held the vendor’s lien notes against Amos Ward’s land, but also in addition had purchased from Amos and wife one-half of the minerals in and under said tract of land. At the first conversation between Birdsong and Belitsky, Birdsong informed him that he owned one-half of the minerals under the land. Belitsky told him that he knew that. The preparation of the papers with respect to the transfer of the notes held by Birdsong to Belitsky was all in the hands of Belitsky, and they were prepared by Belitsky’s attorney. Birdsong had nothing to do with the preparation of any papers, and when he came to sign the papers he inquired of Belitsky if his mineral rights were in any wise affected, and Belitsky told him, as on more than one occasion, that his mineral rights were not affected; that his (Belitsky’s) lawyer had prepared the papers. Birdsong, it is true, did not read the deed because he did not have his glasses, and he relied implicitly on what Belitsky told him.
The trial court heard these facts and circumstances surrounding the transaction, and concluded that the evidence was sufficient to excuse Birdsong, a technical grantor in the deed to Belitsky, from the harsh rule that would charge him as a matter of law with knowledge of the contents of the deed he signed. It is our opinion that the evidence is sufficient to sustain the finding of the trial court with regard to tolling the statute of limitation in favor of Birdsong in respect to the Belitsky deed. The land was not in the East Texas Oil field but later became a part of a gas field (adjacent to the East Texas oil field). There was nothing to call his attention to the misrepresentations of Belitsky, that his mineral rights had been taken care of in the deed prepared by Belitsky’s attorney, until Birdsong saw drilling operations in the vicinity of the land. The court finds upon undisputed testimony that Birdsong *223immediately made inquiry of an abstracter and found the facts to be that the deed he had signed for Belitsky had failed to reserve his mineral interest in the tract of land, and he immediately instituted this suit to correct his deeds. Under such circumstances, and the findings of the trial court, we held in our original opinion that the judgment of the court was supported by sufficient evidence. This is still our conclusion. Therefore, the motion for rehearing is respectfully overruled.