Allison v. Yarborough

• Decision Date: 27 February 1950
• Docket Number: No. 6019,6019
• Citation: 228 S.W.2d 930
• Parties: ALLISON v. YARBOROUGH et al.
• Court: Texas Court of Appeals

Page 930

228 S.W.2d 930

ALLISON v. YARBOROUGH et al.

No. 6019.

Court of Civil Appeals of Texas, Amarillo.

Feb. 27, 1950.

Rehearing Denied April 3, 1950.

Underwood, Wilson, Sutton, Heare & Boyce, Amarillo (C. A. Stein, Amarillo, of counsel), for appellant.

Frank C. Ashby, and Whitaker, Turpin, Kerr, Smith & Brooks, Midland, for appellees.

LUMPKIN, Justice.

This is an appeal from an order sustaining a plea of privilege. The parties will be designated as they were in the trial court.

Alvin R. Allison brought this suit in Hockley County, Texas, against L. G. Yarborough, Sr., and L. G. Yarborough, Jr., d. b. a. L. G. Yarborough & Son, residents of Midland County. In Paragraph I of his petition the plaintiff alleged (a) that plaintiff and defendants took oil and gas leases in defendants' names on seven tracts of land situated in Hockley County and (b) that the leases were acquired with the understanding that each party was to own a one-third interest in them.

Paragraph II of the petition reads as follows:

'That when the above leases referred to were taken it was the agreement between the plaintiff and the defendants that the defendants would execute an assignment to the plaintiff of an undivided one-third interest in and to said leases, but the defendants, though often requested, have failed and refused and still fail and refuse to execute said assignment to the interest hereinabove alleged, to the plaintiff.

'The defendants not only have failed and refused to deliver the assignments to said plaintiff as agreed, but have disposed of undivided interests in and to said leases above described to other parties.

Paragraph III reads in part:

'Plaintiff further alleges that in consideration of the contract between himself and the defendants herein, in which said agreement and contract the defendants agreed to assign to this plaintiff the one-third interest in and to the leases herein described, that plaintiff did and performed a great deal of work and rendered unlimited service for himself and for defendant's in obtaining said leases, in working out the details of same, and in obtaining from various sources curative matter pertaining to the titles to the various lands on which the oil and gas leases herein described were executed, and that in consideration of all said services, plaintiff acquired a one-third interest in said leases, and the defendants have repeatedly agreed to assign said interest to this plaintiff, and to execute a written instrument to that effect, and have repeatedly stated to this plaintiff that said agreement would be prepared and completed by them within a short time and would be delivered to this plaintiff. * * *'

In his prayer, the plaintiff asked 'judgment for his one-third interest in said leases. * * *'

The defendants filed their plea of privilege to be sued in Midland County. Plaintiff filed a controverting plea, asserting that venue of the suit lay in Hockley County under the provisions of Subdivision 14 of Article 1995, Vernon's Annotated Civil Statutes.

Trial was before the court without the intervention of a jury. The parties agree that the land described in the leases is located in Hockley County. The plaintiff offered his original petition in evidence, and the defendants offered in evidence their plea of privilege. The defendants called as a witness the plaintiff, who, over his counsel's objection, stated that his claim to the undivided one-third interest in the leases was based on an oral agreement and that after the defendants obtained title to the leases, plaintiff received a letter from the defendants saying that they would 'give to me assignments to the property in which I was entitled * * * under our oral agreement.' The letter itself was not introduced in evidence. The trial court granted the defendant's plea of privilege and ordered the cause transferred from Hockley County to the district court of Midland County. The plaintiff excepted to the court's judgment and has duly perfected his appeal to this court.

The plaintiff attacks the court's judgment on two points of error: (1) He contends that since this is a suit for the recovery of land, the court erred in not fixing venue in Hockley County, the county in which the land is situated, as provided by Subdivision 14, Article 1995. (2) He asserts that the court erred in determining the nature of plaintiff's suit by going beyond the averments in plaintiff's petition and considering circumstances not disclosed by the petition but found only in plaintiff's testimony.

The plea of privilege is a creature of the law enacted for the benefit of the defendant. Only the exceptions are for the benefit of the plaintiff. Article 1995, Vernon's Annotated Civil Statutes, sets forth the general rule that no person may be sued out of the county in which he has his domicile. Subdivision 14, Article 1995, lists one of the exceptions to the general rule: 'Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.'

The plaintiff has the burden of proving as well as pleading the facts necessary to prove venue. However, under Subdivision 14, as a general rule, where the petition alleges recovery of land as a cause of action, the venue question is restricted to the nature or character of the suit. It is not concerned with the question of whether a cause of action exists in fact. In this particular, Subdivision 14 differs from certain other exceptions set out in Article 1995. Cox et al. v. Palacios, Tex.Civ.App., 188 S.W.2d 688; Knape v. Johanson et al., Tex.Civ.App., 170 S.W.2d 319. Also see Hoover v. Horton, Tex.Civ.App., 209 S.W.2d 646. In a suit for the recovery of land the plaintiff has the burden of proving two venue facts: First, the nature of the suit; and second, the location of the land. Whether this case is one for the recovery of land is a question of law to be determined by the court solely from the averments of plaintiff's petition. 43 Tex.Jur. 846; Klein v. Sibley, Tex.Civ.App., 203 S.W.2d 239.

In some respects this case is similar to Smith v. Hall, 147 Tex. 634, 219 S.W.2d 441, 444. That case grew out of an original proceeding in mandamus by R. E. Smith to compel the Texarkana Court of Civil Appeals to certify certain questions to the Supreme Court. The suit concerned royalty and similar interests in about 2710 acres of land in the Carthage Gas Field in Panola County, all of which was under lease...