The opinion
Note by
PoeeeNbargeR, Judge:
I concur in the decision of this-case for the reason that the defendant has failed to testify and exculpate himself from the charge concerning directions as to the method of obtaining options and conveyances of oil and gas, and as to whether there is a mistake in the deed. His silence may be due wholly to his belief that his contradiction of this testimony is unnecessary, or that it is not such as calls upon him to speak, and he may be entirely guiltless of what .is charged. But the court cannot act as his guardian or protector in respect to a thing which he should have done, if it could have been done, and speak for him. In the absence of his silence, the evidence would be far from satisfactory. There are few cases in which deeds and other solemn writings have been permitted by the courts to be contradicted and altered or canceled upon oral testimony, when the evidence *604 did not show admission on the part of the defendant of mistake or fraud, or show facts and circumstances from which such admission was clearly inferable.
BRANNON, Judge:
I acquit Brown of any fraud. My opinion is that Plant took the option from Mrs. Nutter, using a printed form including coal, oil and gas, and that when Chapin drew the deed he used a printed blank having only coal in its granting clause and interlined “natural gas and oil” to agree with the option. It is not claimed that Brown was present when either option or deed was executed. Plant took them. Brown merely found the instruments as they were. But though this is the case, there stands the evidence of Mrs. Nutter that she refused to sign with oil and gas in the option, and directed the words “natural gas and oil” to be stricken out. There stands the evidence of Brown’s agent, Plant, that Mrs. Nutter did so, and that he so promised to change the option. This is confirmed by young Nutter, who says his father refused to sign the deed with those words in. There stands the evidence of a disinterested witness, Flowers, showing that Mrs. Nutter went to Brown to protest against oil and gas being in the option, and demanding that they be waived by Brown. There stands the fact that Mrs. Nutter gave a deed of trust to some one excepting only coal, not oil and gas, a strong circumstance to show that she believed she had not optioned oil and gas.
Can we arbitrarily reject and discredit this evidence without any adverse showing? True, there are certain features of improbability in the evidence; but that evidence of Flowers and the deed of trust confirm circumstantially the evidence of Mrs. Nutter, and Plant in the specific point that oil and gas wore not to be in the option, and of course the deed must follow the option. There remains the fact, discarding intentional fraud, that the option, by Plant’s mistake in omitting to erase those words, does not do what it was intended to do. This point we can not change, unless we arbitrarily disregard evidence.
As to laches. I would apply it, if Brown had given evidence that the interview with Mrs. Nutter, was in 1893; but under the evidence time is too short.
Reversed. Remanded.