Alvis v. McDonald
Decision Date | 10 February 1955 |
Docket Number | No. 6791,6791 |
Citation | 276 S.W.2d 957 |
Parties | J. C. ALVIS et ux., Appellants, v. T. B. McDONALD et al., Appellees. |
Court | Texas Court of Appeals |
R. T. Wilkinson, Leonard Passmore, Mt. Vernon, for appellants.
Carney & Mays, Abe M. Mays, Jr., Atlanta, Woodrow Edwards, Mt. Vernon, for appellees.
This is a suit by J. C. Alvis and wife, Effie Alvis, plaintiffs below, against T. B. McDonald, Claude McDonald, E. J. Moran, L. A. Grelling and the unknown heirs of G. D. Kelley, deceased, defendants below, to cancel a certain mineral deed executed by plaintiffs to G. O. Kelley on May 14, 1937, covering a 25-acre undivided interest out of a 100-acre tract of land situated in Franklin County. Fraud was alleged as the basis for cancellation.
Trial was to a jury and at the conclusion of the trial the court, on motion of defendants T. B. and Claude McDonald, withdrew the case from the jury and rendered judgment that plaintiffs take nothing and quieted title to said minerals in T. B. and Claude McDonald.
Although plaintiffs alleged that service of citation was had upon E. J. Moran and L. A. Grelling, no service or answer is revealed by the record. These defendants hold current oil and gas leases upon the 100-acre tract of land involved.
Plaintiffs prayed for citation by publication to the unknown heirs of G. O. Kelley, but the record does not reveal any such service or the appointment of an attorney to represent them and no answer has been filed in their behalf.
The record reveals that Dove McDonald procured the execution of the mineral deed sought to be cancelled and placed the same in the name of his brother-in-law, G. O. Kelley.
Appellants bring forward three points of error but it is unnecessary to discuss them, since disposition of the case in this court turns upon a question not called to the attention of the trial court nor assigned as error by appellants in this court, but which is held to be fundamental. It appears to us that the rights of the defendants Moran, Grelling and the beneficiaries of the trust would be affected by a decree of cancellation and they are necessary parties to the suit. And the unknown heirs of G. O. Kelley are proper, if not necessary parties to the suit in order for the court to grant full relief in a case of this kind.
In Sharpe v. Landowners Oil Ass'n, Tex.Com.App., 127 Tex. 147, 92 S.W.2d 435, 436, it is stated:
(Emphasis supplied.)
In the more recent case of Royal Petroleum Co. v. McCallum, Tex.Com.App., 134 Tex. 543, 135 S.W.2d 958, 968, in addition to restating the rule above quoted from the Sharpe case, it is further stated:
' ' (Emphasis supplied.)
The Business Men's Oil Co. case, supra (250 S.W. 158), approves the rule as stated in 9 C.J. 1225, expressed as follows:
'That all persons whose rights, interest, or relations with or through the subject matter of the suit would be affected by the cancellation or rescission should be brought before the court, so that they can be heard in their own behalf. This is in accordance with the well-settled rule that in suits in equity every person having...
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...in effect, that because Kelley was a party to the instrument sought to be cancelled, his heirs were indispensable parties to the suit. 276 S.W.2d 957. This court disagreed, and said (281 S.W.2d 330 at His (Kelley's) unknown heirs are not necessary parties, for the reason that Kelley had con......
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Alvis v. McDonald
...is a perpetual mineral deed. We reversed and remanded this cause for lack of necessary parties on original submission, Alvis v. McDonald, Tex.Civ.App., 276 S.W.2d 957, but the Supreme Court reversed our opinion, McDonald v. Alvis, 281 S.W.2d 330, holding that beneficiaries under an unlimite......
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McDonald v. Alvis
...a motion for rehearing joined in by both parties, plaintiff and defendant, requesting the court to consider the case on its merits. 276 S.W.2d 957. In this we think the Court of Civil Appeals was in It appears that negotiations leading up to the execution of the 1937 deed to Kelley were con......