GRAVES, J.
Appellees, devisees and heirs of H. F. Gra-nau, Sr., deceased, sued appellants, grandchildren and heirs at law of Jennie Reese, deceased, on May 20, 1929, alleging that on January 4, 1921, appellants, by deed of that date, conveyed to' Granau, Sr., all the interest they had in the estate of their grandmother, Jennie Reese, which was an undivided one-fourthj interest therein; that in so doing they specifically described three separate tracts of land belonging to Jennie Reese in other surveys, but through the mutual mistake of themselves and H. F. Granau, Sr., their grantee, omitted therefrom such a description' of one-fourth. interest in a 10-acre tract, lying in the W. 0. White league in Austin county, Tex., which also belonged to the estate of Jennie Reese and was likewise owned by them, which the grantors and grantees, under the deed referred to, had intended to but had not so included therein; that such deed.did in fact convey all their one-fourth interest in all the lands owned by Jennie Reese, but that appellants were now claiming that it did not convey their undivided one-fourth interest in the 10-acre tract in the White league so omitted therefrom as to particular description, and that, in so doing, they were casting a cloud upon the title of the appellees thereto.
In the alternative, they averred that, should the court hold the deed insufficient as written ' to convey to Granau, Sr., appellants’ one-fourth interest in the White 10 acres, it had been at that time purchased from them by him, and all parties to the instrument had mutually intended for it to be included and particularly described therein, and, du'e to no negligence upon his part, but to a mutual mistake, that had .been omitted therefrom.
That H. F. Granau, Sr., through no lack of diligence nor the failure to use due care, discovered such mistake only two months before his death on June 15, 1927.
They prayed for judgment construing the deed as conveying to Granau, Sr., the appellants’ one-fourth undivided interest in the 10 acres involved, and for decree removing all cloud from appellees’ title thereto by reason of the premises, and, in the event the court should hold the deed insufficient upon its face as a conveyance of the one-fourth interest in the 10 acres, that it be reformed and corrected so as to include the description of the same, and for general relief, attaching a copy of the deed declared upon to their pleadings and making the same a part thereof.
The material parts of the deed, omitting the descriptions of the various tracts of land, are as follows:
“Whereas, after the death of said Jennie Reese, who died several years ago, we are entitled to an undivided % interest in her estate;
“Now, therefore, we, John Henry Reese, of Austin County, Texas, Margaret Reese Black-man and husband, Grant Blackman, Effie Reese Holmes and her husband, John Henry Holmes, all of Washington County, Texas, in consideration of Five Hundred ($500.00') Dollars to us in hand paid by H. F. Granau, the receipt of which is hereby acknowledged, have granted, sold and conveyed, and by these presents do grant, sell and convey, unto the said H. F. Granau, of Austin County, Texas, all our % undivided interest in and to the estate of said Jennie Reese, and more particularly our one-fourth . undivided interest in and to: . (Here follows .specific description of three different tracts of land in other surveys).
“To have and to hold the above described premises, together with all and singular, the rights and appurtenances thereto in any wise belonging unto the said H. F. Granau, his heirs and assigns forever, and we do hereby bind ourselves, our heirs, executors, and administrators to Warrant and Forever Defend, all and singular, the said premises unto the said II. F. Granau, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.”
Appellants answered by general and special exception, a general denial of having conveyed all their one-fourth interest to H. F. Granau, Sr., and a plea of four years’ limitation under R. S. art. 5529.
On a trial before the court without a jury, judgment was rendered for the appellees divesting the appellants “of all interest in one-fourth undivided interest in and to the estate of Jennie Reese, deceased,” as of the 4th day of January, 1921, “including 10 acres of land in
the W. C. White league,” the court construing the deed as conveying — though it did not specifically describe — the interest in the 10 acres to them, but further decreeing the removal of the cloud therefrom cast on it by appellants’ adverse claim, and the reformation of the deed so as to include the specific description thereof; pursuant to request, findings of fact and law were subsequently filed.
The record discloses no action upon the demurrers filed.
In this court appellants assail the adverse judgment, as well as all -the material findings of both hinds, on the ground that the evidence was insufficient to support any of them, further ably contending that their plea of four years’ limitation should have been sustained, .since the action was one to reform a deed by the face of the plaintiffs’ petition shown to have been brought more than that long after its execution and .delivery, and no exception to R. S. art. 5529 — barring that kind of a suit — ■ was either properly plead or proved; indeed, not having prosecuted their complaint against the opposing pleadings, the gravamen of their protest here is that appellees were not entitled- — as against the plea of limitation — to a reformation of the deed sued upon, because they wholly failed to show — as to both of which essentials the burden of proof was on them — either (1) that the alleged mutual mistake of omitting the description of the White 10 acres from the deed had not been actually discovered by H. E. Granau, Sr., more than four years before this suit was filed, or (2) that by the exercise of due care he could not have so discovered; they further urge that the deed delivered to Granau, Sr., with knowledge of the contents and effect of which he was then charged as a matter of law, showed upon its face the alleged omission of description.
Wherefore, in any event, they argue, the action for reformation was barred by the statute invoked, since it thus conclusively appeared that limitation began to run from the date of the deed, January 4, 1921, more than eight years before the filing of the suit on March 20, 1929.
In the first place, as the statement has shown, the suit was a double-pronged one, and, in so far as it was an action for construction of the deed declared upon and to remove a cloud from the appellees’ claimed title to the interest in the land, which was its major premise, it was not subject to the bar. of the appealed to four-year statute, being declaratory of a continuing right. Pannell v. Askew (Tex. Civ. App.) 143 S. W.
364;
Slider v. House (Tex. Civ. App.) 271 S. W. 644.
The learned trial court, after hearing the evidence on the issue of how the deed sho'uld be construed, both intrinsic and extrinsic, thus stated its conclusion of law upon it:
“1.
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GRAVES, J.
Appellees, devisees and heirs of H. F. Gra-nau, Sr., deceased, sued appellants, grandchildren and heirs at law of Jennie Reese, deceased, on May 20, 1929, alleging that on January 4, 1921, appellants, by deed of that date, conveyed to' Granau, Sr., all the interest they had in the estate of their grandmother, Jennie Reese, which was an undivided one-fourthj interest therein; that in so doing they specifically described three separate tracts of land belonging to Jennie Reese in other surveys, but through the mutual mistake of themselves and H. F. Granau, Sr., their grantee, omitted therefrom such a description' of one-fourth. interest in a 10-acre tract, lying in the W. 0. White league in Austin county, Tex., which also belonged to the estate of Jennie Reese and was likewise owned by them, which the grantors and grantees, under the deed referred to, had intended to but had not so included therein; that such deed.did in fact convey all their one-fourth interest in all the lands owned by Jennie Reese, but that appellants were now claiming that it did not convey their undivided one-fourth interest in the 10-acre tract in the White league so omitted therefrom as to particular description, and that, in so doing, they were casting a cloud upon the title of the appellees thereto.
In the alternative, they averred that, should the court hold the deed insufficient as written ' to convey to Granau, Sr., appellants’ one-fourth interest in the White 10 acres, it had been at that time purchased from them by him, and all parties to the instrument had mutually intended for it to be included and particularly described therein, and, du'e to no negligence upon his part, but to a mutual mistake, that had .been omitted therefrom.
That H. F. Granau, Sr., through no lack of diligence nor the failure to use due care, discovered such mistake only two months before his death on June 15, 1927.
They prayed for judgment construing the deed as conveying to Granau, Sr., the appellants’ one-fourth undivided interest in the 10 acres involved, and for decree removing all cloud from appellees’ title thereto by reason of the premises, and, in the event the court should hold the deed insufficient upon its face as a conveyance of the one-fourth interest in the 10 acres, that it be reformed and corrected so as to include the description of the same, and for general relief, attaching a copy of the deed declared upon to their pleadings and making the same a part thereof.
The material parts of the deed, omitting the descriptions of the various tracts of land, are as follows:
“Whereas, after the death of said Jennie Reese, who died several years ago, we are entitled to an undivided % interest in her estate;
“Now, therefore, we, John Henry Reese, of Austin County, Texas, Margaret Reese Black-man and husband, Grant Blackman, Effie Reese Holmes and her husband, John Henry Holmes, all of Washington County, Texas, in consideration of Five Hundred ($500.00') Dollars to us in hand paid by H. F. Granau, the receipt of which is hereby acknowledged, have granted, sold and conveyed, and by these presents do grant, sell and convey, unto the said H. F. Granau, of Austin County, Texas, all our % undivided interest in and to the estate of said Jennie Reese, and more particularly our one-fourth . undivided interest in and to: . (Here follows .specific description of three different tracts of land in other surveys).
“To have and to hold the above described premises, together with all and singular, the rights and appurtenances thereto in any wise belonging unto the said H. F. Granau, his heirs and assigns forever, and we do hereby bind ourselves, our heirs, executors, and administrators to Warrant and Forever Defend, all and singular, the said premises unto the said II. F. Granau, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.”
Appellants answered by general and special exception, a general denial of having conveyed all their one-fourth interest to H. F. Granau, Sr., and a plea of four years’ limitation under R. S. art. 5529.
On a trial before the court without a jury, judgment was rendered for the appellees divesting the appellants “of all interest in one-fourth undivided interest in and to the estate of Jennie Reese, deceased,” as of the 4th day of January, 1921, “including 10 acres of land in
the W. C. White league,” the court construing the deed as conveying — though it did not specifically describe — the interest in the 10 acres to them, but further decreeing the removal of the cloud therefrom cast on it by appellants’ adverse claim, and the reformation of the deed so as to include the specific description thereof; pursuant to request, findings of fact and law were subsequently filed.
The record discloses no action upon the demurrers filed.
In this court appellants assail the adverse judgment, as well as all -the material findings of both hinds, on the ground that the evidence was insufficient to support any of them, further ably contending that their plea of four years’ limitation should have been sustained, .since the action was one to reform a deed by the face of the plaintiffs’ petition shown to have been brought more than that long after its execution and .delivery, and no exception to R. S. art. 5529 — barring that kind of a suit — ■ was either properly plead or proved; indeed, not having prosecuted their complaint against the opposing pleadings, the gravamen of their protest here is that appellees were not entitled- — as against the plea of limitation — to a reformation of the deed sued upon, because they wholly failed to show — as to both of which essentials the burden of proof was on them — either (1) that the alleged mutual mistake of omitting the description of the White 10 acres from the deed had not been actually discovered by H. E. Granau, Sr., more than four years before this suit was filed, or (2) that by the exercise of due care he could not have so discovered; they further urge that the deed delivered to Granau, Sr., with knowledge of the contents and effect of which he was then charged as a matter of law, showed upon its face the alleged omission of description.
Wherefore, in any event, they argue, the action for reformation was barred by the statute invoked, since it thus conclusively appeared that limitation began to run from the date of the deed, January 4, 1921, more than eight years before the filing of the suit on March 20, 1929.
In the first place, as the statement has shown, the suit was a double-pronged one, and, in so far as it was an action for construction of the deed declared upon and to remove a cloud from the appellees’ claimed title to the interest in the land, which was its major premise, it was not subject to the bar. of the appealed to four-year statute, being declaratory of a continuing right. Pannell v. Askew (Tex. Civ. App.) 143 S. W.
364;
Slider v. House (Tex. Civ. App.) 271 S. W. 644.
The learned trial court, after hearing the evidence on the issue of how the deed sho'uld be construed, both intrinsic and extrinsic, thus stated its conclusion of law upon it:
“1. The Court doth conclude that, as a matter of law, the deed as executed by the defendants on the 4th day of January, 1921, conveyed their interest in the estate of Jennie Reese, deceased, as they were seized and possessed of the same on the 4th day of January, 1921, including within the terms of said deed the % interest in the tracts of land therein described, and in addition thereto a
%
interest in the 10 acres in the W. C. White league in Austin County, Texas, as set forth in the plaintiffs’ original petition, as the defendants were possessed of the same on the 4th day of January, 1921; which said land, specifically described in said deed, together with said 10 acres of land in the W. C. White league,, constituted the lands of which the said Jennie Reese, deceased, was partly possessed as her community estate, between her and her husband, Emanuel Reese.”
AVhile upon its face somewhat doubtful and ambiguous, when the deed itself is read in the light of the undisputed outside evidence heard, none of which has or properly could have been objected to as having been inadmissible for the purpose (13 Cyc. p. 608), no reason appears for not holding the quoted conclusion fully justified; such proof showed -that Jennie Reese’s estate owned an interest in the 10 acres at thq time of the deed to Granau, Sr., and that appellants had inherited as much as a one'-fourth undivided interest in the whole estate; that, from and after its execution and delivery until about the time this suit was filed, both sides to it, not only by their acts toward the 10 acres construed the deed as having conveyed it along with all the appellants’ other interests in the whole of Jennie Reese’s estate, but the appellants themselves at one time or another so declared; intrinsically, there is clearly no repugnance between the general and particular descriptive recitations, “all our A4 undivided interest in and to the estate of said Jennie Reese,
and
more particularly our one-fourth undivided interest in and to” (here following with specific description of three tracts in other surveys), since the specifically described tracts are plainly and expressly stated to be merely included in the general estate conveyed, not to exclusively constitute it; in such circumstances the rule of construction is thus stated in 13 Cyc. at page 637:
“The question as to what property passes by a deed may be controlled by a general clause conveying all of the grantor’s property. The construction of a description with such a clause therein is dependent upon the intention of the parties, and where it appears from the entire deed that it was the manifest intention to convey all of the property of the grantor a construction consistent therewith will be given. In construing a clause of this character the rule applies that the language is to be construed against -the grantor.”
This holding really determines the merits of the controversy, rendering all the further proceedings had immaterial, since, if the deed
in fact conveyed the whole estate, no basis remained either for removal of a cloud from that title, or for reformation of the instrument by which it passed.
In the second place, however, should the view just stated he in error, we are unable to agree that limitation was conclusively shown to have barred the cause of action for reformation of. the deed, concluding rather that the trial court’s findings the other way did not lack sufficient support in the evidence.
As concerns this phase of the suit — an action for correction of a mutual mistake in the description in- a deed — ’these two well-defined rules of law have been evolved as to when limitation begins to run under R. S. art. 5529:
(1) Where the vendee at that time either knew or was chargeable with knowledge of such mistake, it runs from the date of the delivery of the deed to him. Cleveland State Bank v. Gardner (Tex. Com. App.) 286 S. W. 173;
(2) Where he was not chargeable as a matter of law with knowledge of the existence of such mistake at the time of the delivery of the deed to him, it .runs only from the date he actually learned, or by the use of due care ought to have learned, of the existence thereof. Harrison v. Orr (Tex. Com. App.) 296 S. W. 871.
(3) Our Commission of Appeals in the cited Harrison v. Orr Case seems — by analogy, at least — to have enunciated a third rule, applicable to cases coming within this (2) class, to the effect that one asserting limitation under R. S. art. 5529 in such instances as this has the burden of proving that the owner knew, or by the exercise of due care should have known, of the existence of the mistake for the full four-year period 'before the filing of the suit to correct it; see, also, Levy v. Roper, 113 Tex. 356, 256 S. W. 251; McAllen v. Alonzo, 46 Tex. Civ. App. 449, 102 S. W. 475.
Bo that, if limitation he considered an available defense, we think nothing was shown that charged Granau, Sr., as a matter of law, with knowledge of the existence of the alleged mutual mistake at the date of the delivery of the deed to him ; wherefore the case in that respect came under the operation of above-stated rule (2), and the bar did not begin to run until he knew, or in the exercise of due care ought to have known, of its existence; the trial court found as a fact that he never during life either had that knowledge, or was guilty of such lack of care in relation to the matter, and this court — 'irrespective of who had the burden of proof upon the issue — is unable to say the supporting evidence was not enough; as we have found, the terms of the deed itself and the acts of both himself and his grantors — done as in pursuance of their mutual intention as therein expressed ■ — reasonably led the elder Granau as grantee to assume that all of appellant’s one-fourth interest in the estate of Jennie Reese had thereby passed to him; hence, if nothing tending differently was otherwise ever brought home to him, surely it cannot be held as a matter of law that he was charged anyway with knowledge that such a mistake had been made.
Further discussion is deemed unnecessary; the judgment has been affirmed, with Justice LANE dissenting from some of the conclusions herein made.
Affirmed.