McNew v. Rench

BARNARD, P. J. This is an action for reformation of the description in a contract, and for specific performance.

On February 15, 1941, the defendant and her husband contracted to sell about 40 acres of land to the plaintiff. All business in connection with this transaction, both before and after the signing of the contract, was handled for the plaintiff by her husband, H. L. McNew. The defendant’s husband [645]subsequently died and she has succeeded to all of his interest in the property. Among other things, the contract provided that the plaintiff should subdivide the property, and that upon the payment, of $400, to be applied upon the purchase price, the defendant would convey any lot to the plaintiff or to any person designated by her. It was then provided that when the purchase price was fully paid, the defendant would “convey all of said real property not previously conveyed” to the plaintiff or to any one named by her. Nothing was said in this contract about any reservation of oil or mineral rights in the defendant or her husband.

In September, 1941, at the request of the plaintiff, the defendant and her husband executed two deeds conveying portions of the property to third parties. By each of these deeds an undivided one-half interest in all minerals in and under the land was reserved to the grantors. In December, 1943, the defendant conveyed the remainder of the property to H. L. McNew, the husband of the plaintiff. This deed contained a clause excepting therefrom an undivided 3 per cent interest in all oil, gas and kindred substances which had theretofore been granted to other parties, and also one reserving to the grantor an undivided 47 per cent interest in and to all oil, gas and similar substances. At the same time, and as part of the same transaction, H. L. McNew gave back a trust deed in favor of the defendant securing the balance of the original contract price of the property. This trust deed, in connection with the description of the property, contained the following: “Except therefrom 50% of all oil, gas and other minerals in and under said land, as reserved and excepted in the deed from Shirley M. Bench dated December 6, 1943 and filed for record concurrently herewith.” At the same time the plaintiff gave to her husband H. L. McNew a quitclaim deed covering the property described in the trust deed and containing the same exception as above quoted. Under date of November 30, 1944, a community oil lease was executed leasing to the Biehfield Oil Corporation the property here involved and a number of other properties owned by other parties. The defendant signed this lease, leasing the 50 per cent oil interest here involved, and the plaintiff’s husband, H. L. McNew, also signed it, leasing other property owned by him.