Replies to This Discussion

Permalink Reply by Ben Elmore on February 8, 2011 at 11:35

Couple of questions - 1) Did CF understand at time of IW-CF deed that IW owned 50% of minerals and other 50% was outstanding in a third party?

2) Are you saying that mutual intent of IW and CF at the time of their deed was that CF would receive a 25% mineral interest and IW retain a 25% mineral interest? 

Without seeing any of the documents and actual language of the deeds, as you describe them, it sounds like a Duhig case.  However, there are some exceptions to Duhig depending on specific deed language (which I did not see in your description, but possible they may apply). IW heirs may have a claim for reformation of the IW-CF deed based on a mutual mistake.  They would seek to reform the mutual mistake in the deed to account for their mutual intent.  They would need to prove there was a mutual intent and that the deed as written, does not comport with such intent due to a mutual mistake in drafting the deed.  CF heirs will claim statute of limitations bar the claim since the deed is 50 years old, but IW heirs may have a decent argument that the discovery rule applies to toll limitations.  The IW heirs have now "discovered" the issue and potential claim for reformation.  Statute of limitations on reformation is 4 years.  

 

There may be other avenues depending on the facts, but as you describe them, this is what I see.

 

 

Permalink Reply by adubu on February 8, 2011 at 13:27

Yes-- It is my understanding that CF and IW knew that IW only had 50% of minerals--therefore I have to assume they knew the other 50% had to be in a 3rd party. They had a mutual intent to share 50-50 in this 50% (25% net each)but that is no where in writting only recall by present living children of CF and IW they had been informed of that fact at time property in question was sold by IW to CF. The language in the deed unfortunately is as stated above which my understanding bring Duhig in play. However ambguity comings in went the grandchildren sell the land in 2002. The husband ( now desc)of living daughter has his attorney draw up the warrent deed and list in order the prior reservations and conveyances and list as above RS to IW and then IW resevations of minerals to CF. Question why would husband have the attorney list IW resevation if he did not have knowledge of his father-in-law CF and IW intent to share the minerals 50-50? therefore a mutual mistake in drafting the deed in 1964.

Permalink Reply by Ben Elmore on February 8, 2011 at 18:25

You lost me with the sale in 2002 I thought the sale out of CF was 50 years ago. in any event, i think listing of prior reservations is some evidence that CF understood IW was retaining a mineral interest. Sounds like best chance is reformation. IW needs an attorney to look at this

Permalink Reply by adubu on February 9, 2011 at 1:09

Ben---the 2002 sale was when when the grandchildren heirs of CF sold the land. CF was buyer from IW in 1964. IW heirs did not know the Texas Law could have eliminated their ownership of their minerals due to error in writting the warrent deed until 2 months ago. The fact that CF grandchildren listed in order the prior reservations and Grantor( two of the grandchilren)had  reservation of all minerls remaining in the warrent deed of last sell would this impliy that IW had reserved part of the minerals in their minds? If they though IW did not reserve or have title why was it even listed?  The Son-In-Law to CF had his attorney draw up the Warrent Deed of last sell in 2002.Yes it is now in attorneys review. I would appreicate without you having knowledge of looking at all the deeds-- base on what I have listed of language of deed-- what your thoughts would be? Does IW heirs have a possible case of  reformation and could I get it to jury without Duhig resulting in Summary Judgement? Another opinion for the heirs of IW would be helpful to calculate cost of litigation vs value to possible win some part of the minerals back.If you were the attorney for CF grandchildren would you advice that settle the issue with CF heirs based on possible reinformation and give up some of the mineral interest rather than cost to fight. No one klnow what if any future value the minerals will have.  THANKS IN ADVANCE FOR YOUR OPINION.  What a great group you have started for this site and donating your most valued asset of attorney--HIS TIME-- I will give you and group up date of results of outcome of present negotiations Thanks again Ben

Permalink Reply by Ben Elmore on February 9, 2011 at 3:44

As long as you understand I am just throwing out my thoughts and not rendering legal advice, here is what I think.  Based on what you have described, yes I think the IW heirs have a possible reformation case.  I would be concerned with summary judgment on limitations rather than Duhig.  I think reformation must be decided before application of Duhig, i.e., if reformation fails, then fight over whether Duhig applies.  Based on what you have described, I would advise the CF heirs that there is a risk they could lose on the limitations defense and the reformation claim, which would result in them losing half of their minerals.   I would tell them to consider giving up something less than half their minerals to settle it, but that ultimately it is up to them.  It sounds like there is a chance for both the limitations and reformation issue to get to a jury based on what you describe.  One can ever predict what a jury is going to do. 

Permalink Reply by adubu on February 9, 2011 at 4:10

Ben---you are very kind to answer your thoughts and I understand not legal advice. I understand and I hope CF heirs attorney feels that CF heirs could lose 1/2 of the minerals which the intent of CF and IW was just that--25% net each-- so lost vs justice of intent. If CF attorney understands same maybe settlement can be obtained. They (CF)have 2 heirs and IW 1 heir so maybe can get agreement to spilt the 50% into 1/3 each equally so each has 16.67% of net minerals in tract. The CF heirs decrease from 25% each to 16.67% rather than if loses case could end up with 12.5% only plus court cost.

Permalink Reply by Ben Elmore on February 9, 2011 at 4:22

I'd be interested to hear how it turns out.  Good luck!

Permalink Reply by adubu on February 10, 2011 at 12:07

Ben---Do you think I can get pass statute of limitations? If not if I can prove intent from living family member (daughter of CF) would that be controlling over duhig?

Permalink Reply by Ben Elmore on February 10, 2011 at 12:18

The statute of limitations will be a fact issue, so I think you can get to a jury on when it began to run.  You would argue it began to run 2 months ago when you first discovered the issue.  The only way to get intent into evidence is through a claim of reformation based on what you have told me.  If you can prove entitlement to reformation of the deed, it will trump Duhig.  That's my reading of the facts at least.

Permalink Reply by adubu on February 10, 2011 at 12:38

Thanks Ben---could you explain entitlement to reformation and the legal fact of evidence that gets me there?  Thank again for you kind help

Permalink Reply by Ben Elmore on February 10, 2011 at 12:57

Evidence supporting reformation - the circumstances surrounding the IW-CF conveyance and the fact that both parties believed they were going to end up with a 25% mineral interest each.  Their was a mutual mistake in drafting the deed because it does not comport with that mutual intent.  That in a nutshell provides a basis to reform the IW-CF deed so that it matches up with the mutual intent at the time. 

Permalink Reply by adubu on February 10, 2011 at 13:34

Since both original IW and CF are desc and nothing anywhere in writing of intent I will have to request Daughter of CF to write me letter of her memory or if not then evidence thru deposition. She other than me only child living of CF and IW. If that is obtain will that get me pass summary judgement and to Jury or would that eliminate duhig ?

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