Appellees W. C. Bedford and daughter, Bettie B. Vestal, sued appellants N. H. Jones and wife, S. A. Jones, and Consolidated Gasoline Company, alleging a conveyance by appellants to them of 1/64 of the mineral production from certain described tracts of land in Eastland county, and seeking the adjudication of their rights in and title to the mineral interest claimed. In the alternative, they alleged that, if they were mistaken in their construction of the instrument, then a mutual mistake had been made in the drafting thereof and it should be reformed so as to conform to the real agreement of the parties. Their suit against Consolidated Gasoline Company was for conversion of the difference between the amount of oil for which it should have paid them and the amount for which it actually paid them. Royalty payments had been made to appellees on the basis of 1/64 of the 1/8 royalty, whereas they were claiming that the payments should have been made on the basis of 1/8 of the 1/8 royalty. The Consolidated Gasoline Company tendered into court $312.19, the difference in value between 1/8 of 1/8 and 1/64 of 1/8 of the *Page 306 mineral production. In their answer appellants pleaded that the deed executed by them to appellees was without consideration; that the land involved was their homestead, and the acknowledgment of Mrs. Jones was defective, in that the instrument was not explained to her privily and apart from her husband. They alleged that the instrument by its terms conveyed only a 1/64 of 1/8 of the minerals, and that, if they were mistaken in their construction thereof, same should be reformed and made to conform to the real agreement of the parties. The case was tried before the court without a jury and judgment was rendered in favor of appellees against Consolidated Gasoline Company for the amount tendered by it in court, and the deed was construed to convey 1/64 of the minerals produced from the land and 1/64 of the rentals to be paid under the existing lease or future leases. Findings of fact and conclusions of law appear in the transcript.
The first question for decision is the correct construction of the royalty deed. In the granting clause the interest conveyed is "an undivided 1/8 of 1/8 royalty interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described land." Then follows a description by metes and bounds of two tracts of land, after which is this recital: "This sale also covers a 1/8 of 1/8 royalty interest in the 80 acres out of the above section, which is now leased to the Texas Company, and the sale of this royalty in the said 80 acres is made subject to the lease to the Texas Company," etc.
The instrument provides: "It is understood and agreed that 1/8 of 1/8 of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to the said Grantees and in event that the above described lease for any reason becomes cancelled or forfeited, then and in that event an undivided 1/8 of 1/8 of the lease interest and all future rentals on said land for oil, gas and other mineral privileges shall be owned by said Grantees, owning 1/8 of 1/8 of all oil, gas and other minerals in and under said lands, together with 1/8 of 1/8 royalty interest in all future rents."
We find no ambiguity whatever in the recitals above quoted. The language, to our minds, is clear. The land, at the time the royalty deed was executed, was under an oil and gas lease, under the terms of which 1/8 royalty was to be paid to the lessors. This deed conveyed to the grantees 1/8 of this 1/8 royalty, and 1/8 of 1/8 or 1/64 of any money rentals which might be paid to extend the terms of the lease. It definitely described the interest which grantees were to have in future rentals and royalties, in the event the then existing lease should be cancelled or forfeited The apparent ambiguity in the instrument results from the following recital therein: "Said land being now under an oil and gas lease, executed in favor of E. A. Clayton, it is understood and agreed that this sale is made subject to the terms of said lease, but covers and includes 1/8 of 1/8 royalty of all of the oil royalty, and gas rental or royalty due and to be paid under the terms of said lease."
Appellants construe this recital as if it were 1/8 of 1/8 of the royalty. Thus construed, this recital is in conflict with other portions of the deed. It is our duty to construe the instrument as a whole, with the view of arriving at the real intention of the parties, and if the language of the provision last above quoted is itself ambiguous, it should be given that construction which will harmonize it with the other plain provisions thereof, rather than a construction which would set it in direct conflict therewith. Smith v. Westall, 76 Tex. 509, 13 S.W. 540; Associated Oil Co. v. Hart (Tex.Com.App.) 277 S.W. 1043. By order of the trial court the original deed has been sent to this court. It discloses that it was prepared by filling in blanks in a printed form. The portion italicized above was inserted in a blank, and that fact accounts for the apparent ambiguity in this recital. The instrument as a whole is not ambiguous. At most, one provision thereof is ambiguous, and it is susceptible of a meaning which harmonizes the whole. It is plainly our duty to give it such meaning, and thereby avoid a conflict. The trial court did not err in his construction of the instrument, and in awarding judgment against the Consolidated Gasoline Company for the amount tendered by it into court.
The contention of appellants that a conveyance of 1/8 of 1/8 royalty interest, subject to the terms of an outstanding oil and gas lease, should be construed as a conveyance of 1/64 of the 1/8 royalty, rather than 1/8 of the 1/8 royalty, is believed by us to be untenable, and is therefore rejected.
In appellees' petition they incorrectly designated Bettie B. Vestal as the wife of W. C. Bedford, and it is the contention of appellants that this error rendered the petition subject to a general demurrer. This contention is overruled. An error of this nature cannot properly be questioned by a general demurrer.
Appellants question the finding of fact that the royalty deed was duly acknowledged and contend that the acknowledgment of Mrs. Jones was not taken privily and apart from her husband as required by the statute. The evidence on this issue is as follows:
N. H. Jones testified: "As to whether he told my wife in my presence about what was in that deed; I was standing in the door in the office when she signed, but then I couldn't hear it real good what this lady said to her. As to whether Bob Grisham was there talking *Page 307 to her; he was in the office, in the same room where my wife and I were. Of course, I was standing there. As to whether I heard that woman in there, I couldn't understand what that woman said, I couldn't understand just what she said. I think, as well as I remember, Judge Grisham read it over right there in the presence of me and my wife. That was before we signed it."
Mrs. S. A. Jones testified:
"He read the instrument over to us and I said `this 1/64 of it is that this 1/8 of 1/8?' and he said `1/8 of 1/8 was 1/64,' and that is the way he explained it and when the woman taken my acknowledgment that is the way she explained it.
"We was in Judge Grisham's office when we signed the instrument. Judge Grisham had walked out when I signed it and Mr. Jones had walked there to the door. Judge Grisham was in the other room and Mr. Jones was in the door that lead out to where Judge Grisham was and the woman was in there with me. That door was not shut. He was about half way across the house from me, I don't know how far in feet, I guess three or four feet, or two or three feet, I don't know how far exactly. I could see him when I signed that deed, he was standing in the door."
The attack is made on the basis that the acknowledgment of Mrs. Jones was not taken privily and apart from her husband. Under the authorities this evidence is sufficient to support the court's finding that the acknowledgment was taken in compliance with the requirements of the statute as against the attack made thereon. Hartley v. Frosh, 6 Tex. 208, 55 Am.Dec. 772; Richmond v. Hog Creek Oil Co. (Tex. Civ. App) 229 S.W. 563; Speer on Marital Rights (3d Ed.) § 244, p. 292.
There are many bills of exceptions in the record challenging the action of the trial court in admitting the testimony of certain witnesses. We have considered all of these bills, but no one of them presents any error. The testimony complained of was all admissible under the pleadings of the parties, in which each party was seeking, in the alternative, to have the instrument reformed. Such pleadings rendered admissible testimony that otherwise should, and doubtless would, have been excluded by the trial court.
Appellants seriously insist that by the overwhelming preponderance of the evidence the real intention of the parties was to convey a 1/64 of the 1/8 royalty, and that the instrument, if construed to convey a greater interest, should be reformed. We have carefully read this testimony and find that there is in it support for appellants' contention, but appellees' testimony well supports the judgment rendered. It is a case of conflict in the evidence and the trial court has set the matter at rest by resolving the conflict in favor of the appellees.
Affirmed.