Alworth v. Ellison

• Decision Date: 11 April 1930
• Docket Number: No. 684.,684.
• Citation: Alworth v. Ellison, 27 S.W.2d 639 (Tex. App. 1930)
• Parties: ALWORTH et al. v. ELLISON.
• Court: Texas Court of Appeals

27 S.W.2d 639

ALWORTH et al. v. ELLISON.

No. 684.

Court of Civil Appeals of Texas. Eastland.

April 11, 1930.

Rehearing Denied May 9, 1930.

Error from District Court, Eastland County; Elzo Been, Judge.

Suit by K. A. Ellison against C. D. Alworth and others. Judgment for plaintiff, and defendants bring error.

Reversed and remanded.

Turner, Seaberry & Springer, of Eastland, for plaintiffs in error.

Barker & Orn, of Cisco, for defendant in error.

HICKMAN, C. J.

We have determined that one question presented in this record is controlling, and our statement will be limited to such facts as are required to present that question. The plaintiffs in error were defendants in the trial court, and the defendant in error was plaintiff. The parties will be designated as they were in the trial court. Plaintiff sued defendants for an undivided one-sixth interest in and to certain oil and gas leases covering lands in Runnels county. On this phase of the case the petition was in the form of an ordinary action in trespass to try title. He also sued for damages for the breach of a contract to assign to him a one-sixth interest in these leases. He then, in the alternative, declared upon a quantum meruit, praying for the reasonable value of his services as a geologist in reporting on the geological formations on these lands.

The case was submitted to the jury on special issues. The court seems not to have prepared any charge, but submitted to the jury certain charges requested by the plaintiff. In answer to the several issues submitted in these specially requested charges, the jury determined: (1) That the defendants agreed with the plaintiff that, if plaintiff would do the geological work on the block of land described in the pleadings, and make a report thereon, they would defray his expenses while preparing his report, and, in the event the report justified the drilling of a well for oil and gas, they would procure leases covering said block of land in their own names, and in consideration of the work done by plaintiff they would assign to him an undivided one-sixth interest in and to said leases; (2) the defendants procured oil and gas leases on approximately 8,000 acres of land in Runnels county; and (3) these leases were of the reasonable cash market value of $5 per acre in September, 1927. Issues were submitted on the plea of quantum meruit, but the jury was instructed to answer such issues only in the event the first issue was answered in the negative. Since that issue was answered in the affirmative, no answers were returned to these issues on quantum meruit. On these findings, and certain supplemental findings made by the court, judgment was entered in favor of plaintiff against defendants for $5,000 as damages for the breach of the contract.

The contract found by the jury to have been made by plaintiff and defendants was oral. At the time it was entered into the leases on the various tracts of land had already been executed, and were held by a bank in Ballinger in escrow under the terms of a written contract between the defendants and the owners of the various tracts of land. It is unnecessary to detail the terms of the written contract between the defendants and the landowners further than to state that, by the terms thereof, the escrow agent was to deliver said leases to the defendants upon the performance by the defendants, within a stated time, of various conditions therein named, including the beginning of active drilling operations on some tract included in the block. The conditions were performed and the leases delivered after plaintiff made his report. The defendants, in their answer, among other defenses, interposed the statute of frauds, and the controlling question presented, as we conceive it, is whether, at the time of the making of the oral contract above referred to, the defendants had such an interest in land as could not be assigned by parol under articles 1288 and 3995, R. S. 1925. The position of the plaintiff is that, since at the time of the making of the oral contract the leases had not been delivered by the escrow holder to the defendants, it is immaterial that the written contract between the landowners and the defendants, under the terms of which the leases had been placed in escrow, was entered into prior to the making of this oral contract.

These leases were in effect deeds to oil and gas in place. We think it is well settled that the grantee in a deed placed in escrow pending performance of the conditions contained in the escrow agreement has an equitable title to the property described in the deed. Lynn v. McCoy (Tex. Civ. App.) 200 S. W. 885; Neal v. Pickett (Tex. Com. App.) 280 S. W. 748; 21 C. J. 882, 883; 10 R. C. L. 628.

A person who possesses the right to have the legal title to property transferred to him upon the performance of specified conditions has the equitable title to the property. 20 C. J. 1304. The statute of frauds applies to an equitable title the same as to the legal title. Cauble v. Worsham, 96 Tex. 86, 70 S. W. 737, 97 Am. St. Rep. 871; Sanborn v. Murphy, 86 Tex. 437, 25 S. W. 610; Dial v. Crain, 10 Tex. 444; Masterson v. Little, 75 Tex. 682, 13 S. W. 154; Sprague v. Haines, 68 Tex. 217, 4 S. W. 371; Clitus v. Langford (Tex. Civ. App.) 24 S. W. 325; Wilson v. Nugent (Tex. Civ. App.) 91 S.W. 241, 242; Little v. Childress (Tex. Civ. App.) 12 S.W.(2d) 648; Id. (Com. App.) 17 S.W.(2d) 786; 27 C. J. 201, 202, 314; 25 R. C. L. 534, 580, 691. Williston on Contracts, § 491, p. 949.

The case of Little v. Childress, supra, is the last expression from the Supreme Court, so far as we are advised, on the question here presented. Childress had the right to...