Barbee v. Buckner

• Decision Date: 24 February 1954
• Docket Number: No. 10205,10205
• Citation: 265 S.W.2d 869
• Parties: BARBEE v. BUCKNER et al.
• Court: Texas Court of Appeals

Page 869

265 S.W.2d 869

BARBEE v. BUCKNER et al.

No. 10205.

Court of Civil Appeals of Texas, Austin.

Feb. 24, 1954.

Rehearing Denied March 17, 1954.

Robert C. Wilson, Victor Gleckler, Austin, for appellant.

Maynard & Kershaw, Bastrop, for appellees.

ARCHER, Chief Justice.

This is an appeal from a judgment rendered in a trespass to try title suit, to remove cloud from title and to have declared certain leases null and void.

The appeal is based on a number of points, but essentially on the error of the court in overruling a plea in abatement, plea of misjoinder, severance, motion for instructed verdict, and in discharging the jury and rendering judgment for plaintiff.

The suit was instituted by appellees against appellant to recover the title and possession of three tracts of land, described by separate field notes, but adjoining and formerly one larger tract, and alleging that on the 16th of March, 1951, plaintiffs, except Lonnie Harris, executed an oil and gas lease on the said lands, and further alleging a written contract whereby the defendant agreed to commence the drilling of a well on or before July 1, 1951, on one of the tracts and to complete said well, or until a dry hole was had at a total depth of 2,200 feet, and that failure to commence drilling of said well on or before July 1, 1951, should terminate said lease; alleging that said well was not commenced on or before July 1, 1951, and no well has been commenced on either of said tracts; and sought damages, etc.

Plaintiffs alleged that the suit was brought not only to recover title and possession but to clear the title and remove any clouds by unreleased oil and gas leases.

The defendant filed an answer of not guilty and general denial and subsequently a plea in abatement, a plea of misjoinder of parties plaintiffs, and a motion for severance, all of which were overruled by the court.

Trial was had to a jury and at the conclusion of plaintiffs' testimony the defendant filed a motion for instructed verdict, which was overruled, and the defendant offered no evidence but renewed his motion for judgment, which was overruled. The plaintiffs filed a motion to withdraw the case from the jury and for a judgment, this motion was granted and judgment rendered in favor of plaintiffs for the title and possession of the respective tracts of land to the said respective owners, and removed the cloud upon the titles of said property, declaring the oil and gas leases null and void, and for costs.

According to the testimony of one of the plaintiffs, Bill Buckner, a Mr. Zack Hanna and defendant Barbee came to Bastrop on March 16, 1951, and defendant inquired if plaintiffs had some land to lease and Buckner replied that they did and would lease it for a dollar an acre and a drilling contract to drill a well by the 1st of July, 1951, and that Barbee agreed to lease the land at a dollar an acre and to drill a well, and paid the rental of a sum of $180 for the lease on the three tracts, all of which were adjoining, and that subsequently oil and gas leases were executed and an agreement to drill a well; and that the leases would not have been given except for the agreement to drill a well; that no well was ever commenced on either of the three tracts.

The witness further testified that a few days before July 1, 1951, Mr. Barbee came and wanted an extension of time to drill, and witness told Mr. Barbee that an extension would cost $182, and was told by Mr. Barbee that he would not put up any more money. That certain deposits of rental were made in a bank in Lockhart but such were refused and the deposit slips returned to the bank.

The defendant testified that he accepted the leases, and that he executed the agreement to drill, and that he intended to comply with the agreement.

The drilling contract is as follows:

'The State of Texas,

County of Bastrop.

'Whereas, by instrument dated March 16, 1951, Bill Buckner et ux. leased to R. B. Barbee, for a period of five years commencing on the 16th day of March, 1951, and terminating on the 15th day of March, 1956, 65 acres of land, more or less, out of the J. Maxamillian League in Bastrop County, Texas, reference to which lease is hereby made for all purposes:

'And, Whereas, by instrument dated the 16th day of March, 1951, W. W. Talley et ux. leased to R. B. Barbee, for a period of five years commencing on the 16th day of March, 1951, and terminating on the 15th day of March, 1956, 65 acres of land, more or less, out of the J. Maxamillian League in Bastrop County, Texas, reference to which lease is hereby made for all purposes:

'And Whereas, by instrument dated the 16th day of March, 1951, John Buckner et al. leased to R. B. Barbee, for a period of five years commencing on the 16th day of March, 1951, and terminating on the 15th day of March, 1956, 52 acres of land, more or less, out of the J. Maxamillian League in Bastrop County, Texas, reference to which lease is hereby made for all purposes:

'And, Whereas, said all of said leases are what are commonly known as the Producers 88 Revised, Texas, leases, providing for a yearly rental of One ($1.00) ___ per acre:

'And, Whereas, the lessors in all of said instruments above are desirous of and want a well drilled for the purpose of discovering oil and/or gas on said land and premises, and the Lessee therein, R. B. Barbee, has agreed to drill a well upon one of said three tracts of land:

'Now, Therefore, Know All Men By These Presents, that I, R. B. Barbee, the lessee in all of said above described oil and gas leases, for and in consideration of the said above mentioned parties leasing said land to me, hereby agree and hereby bind and obligate myself to commence the drilling of a well for the purpose o testing said land for oil and/or gas; said well to be commenced on or before the 1st day of July, 1951, and drilling operations to be continued in due course and with due diligence until said well is brought in as a producer or until the same is abandoned as a dry hole: said well to be drilled to a depth of 2200 feet unless oil be discovered in paying quantities at a lesser depth.

'In the event that drilling opeations are not commenced upon one of said above three described tracts of land on said 1st day of July, 1951, and drilling operations continued with due diligence as hereinabove provided, then and in that event all of said above three described leases for oil and/or gas on said three tracts of land, shall terminate and be null and void and of no further force and effect and the lessee therein agrees and hereby binds and obligates himself to execute a release on the same to the lessors therein.

'Witness My hand this the 16th day of March, 1951.

'R. B. Barbee.'

The appellant contends that the following paragraph in the leases is a condition precedent, and that it was error to overrule the plea in abatement.

'In the event lessor considers that lessee has not complied with all its obligations hereunder, both expressed and implied, before production has been secured or after...