Murphy v. Johnson, 7705.

CourtCourt of Appeals of Texas
Citation54 S.W.2d 158
Docket NumberNo. 7705.,7705.
PartiesMURPHY et al. v. JOHNSON et al.
Decision Date19 October 1932

Appeal from District Court, Brown County; E. J. Miller, Judge.

Suit by Eliza Murphy and husband and others against W. S. Johnson and others. From a judgment dismissing the suit, plaintiffs appeal.

Affirmed in part, and in part reversed and remanded.

Edwin Mechem and T. B. Rapcoch, both of Las Cruces, N. M., and Del W. Harrington, of El Paso, for appellants.

Don Emery, of Amarillo, Walter L. Barnes, of Des Moines, Iowa, and T. L. Dyer, of Breckenridge, for appellee Phillips Petroleum Co.

H. S. Garrett and H. R. Wilson, both of Fort Worth, for appellee Texas Co.

Butts & Wright, of Cisco, for appellees Stanley, L. F., and S. F. Benckenstein, John M. and Albert Cotter Lewis, and Mary L. Easthope.

Scott W. Key, of Eastland, for appellee Humble Oil & Refining Co.

Wilkinson & Wilkinson, of Brownwood, for appellees W. S. Volley and Lela Johnson.

BLAIR, J.

The appellants, Eliza Murphy and Martha Nichols, each joined pro forma by her husband, sued appellees, W. S. Johnson, Volley Johnson and wife, Lela Johnson, Stanley Benckenstein, F. L. Benckenstein, S. P. Benckenstein, John M. Lewis, Albert Cotter Lewis, Mary L. Easthope, the Texas Company, a Texas corporation, the Texas Company, a Delaware corporation, Humble Oil & Refining Company, a Texas corporation, and Phillips Petroleum Company, an Oklahoma corporation, to recover an undivided one-half interest in two tracts of land, described in this appeal as tract No. 1 and tract No. 2. The petition contained three counts; the first being in the usual form of trespass to try title. The second count alleged:

That appellee, W. S. Johnson and his first wife, Esther Johnson, were the parents of appellants, Eliza Murphy and Martha Nichols. That during the marital relationship they accumulated certain community property, consisting, among other things, of live stock in Brown county, Tex.

That Esther Johnson died about the year 1879.

That, after her death as well as before, W. S. Johnson continued to handle such live stock and to pay for other stock with the proceeds of the former stock, and that he acquired title to tract No. 1 by the exchange of property belonging to and with the proceeds of the sale of a portion of the community estate of W. S. Johnson and his deceased wife, Esther Johnson, one-half of which belonged to appellants. That W. S. Johnson acquired the legal title to tract No. 1, known as the M. B. Nix 80-acre survey, in August, 1892, under the following facts:

That M. B. Nix had entered upon said land by virtue of the homestead laws of Texas, and thereafter his interest was assigned and transferred to J. W. Boliver. That prior to that time W. S. Johnson had taken up a preemption homestead of 160 acres, and was not eligible to acquire an additional pre-emption homestead. That W. S. Johnson negotiated with one I. H. Kinsey to purchase from Boliver the Nix survey, and turned over to Kinsey the sum of $20 and a sorrel horse, described by a certain brand, all of which was alleged to be community property of W. S. and Esther Johnson. That it was agreed that Boliver assign and transfer said Nix survey to Hugh Murphy, which was done, and that Hugh Murphy, after receiving the assignment and transfer from Boliver, entered upon the land and made final proof of occupancy and received the patent for said land; and thereafter, in accordance with the previous agreement, Hugh Murphy conveyed the land to W. S. Johnson, who had ever since held and used said land as his homestead until about January, 1928, when he moved from said land and became a resident of Concho county, Tex.

It was further alleged that, by virtue of these facts, a resulting trust was created in behalf of appellants, and that appellants were the beneficial or equitable owners of an undivided one-half interest in tract No. 1; that the land had never been partitioned, but had been occupied by the cotenant W. S. Johnson, and used by him continuously during the time above mentioned; and that appellants at no time prior to the month of April, 1930, had any notice or knowledge that the said W. S. Johnson, or any one claiming under him, was claiming the land adversely to appellants. The petition further alleged with respect to tract No. 1 that in January, 1926, appellees W. S. Johnson and his son by a second marriage, Volley Johnson, and the latter's wife, Lela Johnson, undertook to execute an oil and gas lease to appellee Texas Company, the Texas corporation, on said land; and that, as a result of drilling for oil thereon, petroleum oil and gas have been extracted therefrom of the value of $250,000, and that no part of which has ever been received by appellants, to their damage in the sum of $125,000. Appellants also alleged that oil royalties, one-half of which belonged to them, had been wrongfully paid to appellees, W. S. Johnson, Volley Johnson, Lela Johnson, and others, and prayed for an accounting against them and the two appellees Texas Company corporations.

With respect to tract No. 2, and in addition to the facts alleged showing the relationship of appellee W. S. Johnson to appellants, they further alleged as follows:

"That about the year 1901 the defendant W. S. Johnson purchased from the State of Texas with money derived from the sale of the community estate of W. S. Johnson and Esther Johnson, fully described in paragraph 1, the tract of land described as Tract No. 2, and by reason thereof these plaintiffs were and are the owners of an undivided one-half interest in and to said tract of land. That the said W. S. Johnson after purchasing said land from the State of Texas, held the same for himself and for these plaintiffs and as a cotenant with these plaintiffs and that at all times held out and represented to these plaintiffs that their interest in said land was being held by him for them, and that he would at all times save and protect them in the enjoyment of same, and plaintiffs had no notice or knowledge that said land was being held by the said W. S. Johnson adversely to them until about the month of April 1930."

"Plaintiffs further show to the court that on or about the 19th day of January, 1926, by an instrument of that date, the defendants, W. S. Johnson, Volley Johnson and wife, Lela Johnson, unlawfully attempted to sell and convey to the defendant Humble Oil & Refining Company, an oil and gas leasehold on Tract No. 2. That by virtue of said lease the said defendant still claims and holds said leasehold interest, and beginning about the year 1928 drilled wells for oil and gas upon said tract of land, and has extracted and produced from said land petroleum oil and gas, as the plaintiffs believe and here now allege of the value of $250,000.00, no part of which has ever been received by the plaintiffs, and withhold all of same from the plaintiffs, to their damage in the sum of $125,000."

By the third count in their petition, appellants alleged that appellee W. S. Johnson, at each and all of the dates of the execution of the oil and gas lease contracts and of the conveyance of royalty interest in the oil and gas production from both tracts of said lands, was non compos mentis, and was so deficient in his mentality, and was so lacking in his discretion and ability to know and realize the consequences of his acts as to be totally and completely incapacitated mentally from transacting any business; and that by reason thereof said pretended leases and sales of royalty were and are void; and that, since the execution thereof, the said W. S. Johnson has never regained his mental capacity so as to be able to ratify the same; and they pray for cancellation of each and all of the gas leases and conveyances of royalty, and for general and special relief.

The other appellees named were alleged to be claiming some interest in and to the said two tracts of land and the mineral rights therein under some character of conveyance either from the appellees Johnson, the Texas Companies, or the Humble Oil & Refining Company; the exact extent and nature of their interest was alleged not to be known to appellants.

Appellants nowhere allege that appellees oil companies had notice of their alleged claim in the two tracts of land by virtue of their alleged resulting trust.

As we interpret the petition and according to the briefs of appellants, their cause of action against the Texas Company for the recovery of an undivided one-half interest in tract No. 1 was based upon an alleged resulting trust, which arose because their father, W. S. Johnson, purchased said lands with community funds or property of himself and their deceased mother, Esther Johnson, one-half of which was inherited by and belonged to appellants; that, while W. S. Johnson took the legal title to the lands in his own name, a resulting trust was under the facts and circumstances created in behalf of appellants with their father, W. S. Johnson, as trustee and with appellants as the cestui que trust; and that appellants were therefore entitled to recover against the Texas Company, a subsequent grantee of W. S. Johnson of an oil and gas leasehold estate, an undivided one-half interest in the lands and damages thereto in virtue of the premises alleged.

It is also apparent that the petition affirmatively alleged the specific facts under which W. S. Johnson acquired the legal title to tract No. 1 to be, in substance, that, after W. S. Johnson had already acquired from the state of Texas 160 acres of land, being all he was entitled to receive under the Pre-emption Homestead Laws, he nevertheless made an arrangement with another person to settle on tract No. 1 and to acquire a pre-emption homestead therein and to obtain a patent from the state of Texas, and then deed the land to Johnson; that all of this was done in accordance with the agreement; and that Johnson paid such person to carry...

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  • Culver v. Pickens, 13309.
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    ...to the defense of laches as a matter of law. Williams v. Coleman-Fulton Pasture Co., Tex.Civ.App., 157 S. W.2d 995; Murphy v. Johnson, Tex.Civ. App., 54 S.W.2d 158; Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319. Discussing the subject of laches, as applied to transactions involving oil lan......
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    ...... . . . REVERSED AND REMANDED WITH DIRECTIONS. . . Stanley. W. Johnson, of Ephraim, for appellants. . . Jensen. & Jensen, of Ephraim, for respondents. . ... Perry on Trusts (6th Ed.) § 165. . . The. case of Murphy v. Johnson (Tex. Civ. App.). 54 S.W.2d 158, involves this same principle. See, also,. Daughty ......
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