Berry v. Humble Oil & Refining Co.

Decision Date09 October 1947
Docket NumberNo. 2722.,2722.
Citation205 S.W.2d 376
PartiesBERRY et al. v. HUMBLE OIL & REFINING CO. et al.
CourtTexas Court of Appeals

Appeal from District Court, Van Zandt County; Lex Smith, Judge.

Trespass to try title suit by A. J. Berry and others against Humble Oil & Refining Company and others. From an adverse judgment, plaintiffs appeal.

Judgment affirmed.

E. A. Landman, of Athens, for appellants.

Wynne & Wynne, of Wills Point, H. L. Bromberg, Jr., and G. W. Schmucker, both of Dallas, Joe S. Brown, Dillard W. Baker, Moody P. Pearson, and R. E. Seagler, all of Houston, Carrington, Gowan, Johnson & Walker, of Dallas, and John E. Green and Rex G. Baker, both of Houston, for appellees.

LESTER, Chief Justice.

This is a trespass to try title suit involving the title and possession of 207 acres of land located in Van Zandt County, Texas, and for the recovery of a large sum of money as damages, rentals, royalties, etc., brought by the heirs of R. W. Berry and wife, Mahulda Berry, against the Humble Oil & Refining Company, Sanger Investment Company, Sanger Bros., and the Gulf Oil Corporation.

The record discloses that in 1857, Richard Walling and wife conveyed to R. W. Berry 2862 acres, more or less, and being the unappropriated part of the John Walling Headright League. From 1858 to 1862, R. W. Berry sold to various parties approximately 2700 acres of said land and in two of the deeds executed by him references were made to a 200 acre division made by R. W. Berry to C. H. Gilchrist. The record does not disclose any conveyance out of R. W. Berry to Thos. H. Duke, but it does contain a warranty deed from Thos. H. Duke to James Berry, of date 1860, conveying the same land that is in controversy in this suit, and the record reflects thereafter the following instruments executed and filed of record, which constituted the chain of title to the land herein involved up to the time appellants filed suits to recover the same:

(1) Warranty deed from Thomas H. Duke to James Berry, dated February 6, 1860, filed for record March 16, 1860, by P. G. Whetstone, C.C.C., Rusk County, Texas, filed for record March 22, 1938, and recorded in Vol 266, p. 590, of the Deed Records of Van Zandt County, Texas.

(2) Warranty deed from James Berry to F. M. McClure, dated May 9, 1862, filed for record February 12, 1877, and recorded in Vol. S, p. 713 of the Deed Records of Van Zandt County, Texas.

(3) Warranty deed from F. M. McClure to William Stedman, dated November 11, 1862, filed for record January 20, 1863, and recorded in Vol. K, p. 192 of the Deed Records of Van Zandt County, Texas.

(4) Warranty deed from William Stedman to Nathan G. Bagley, dated May 3, 1872, filed for record June 2, 1915, and recorded in Vol. 113, p. 586 of the Deed Records of Van Zandt County, Texas.

(5) Deed from N. G. Bagley to Williams & Bonner, dated January 15, 1873, filed for record June 2, 1915, and recorded in Vol. 113, p. 584 of the Deed Records of Van Zandt County, Texas.

(6) Warranty deed from Chas. D. Bonner, executor, and Mary D. Bonner, executrix, estate of T. R. Bonner, dec'd, to Tyler Building & Loan Association, dated April 18, 1892, filed for record June 2, 1915, and recorded in Vol. 113, p. 593, Deed Records of Van Zandt County, Texas.

(7) Warranty deed from E. C. Williams to John Durst, dated March 15, 1896, filed for record April 17, 1896, and recorded in Vol. 53, page 158, Deed Records of Van Zandt County, Texas.

(8) Warranty deed from John Durst to C. B. Epes, dated August 1, 1896, filed for record Dec. 1, 1896, and recorded in Vol. 53, p. 603 of the Deed Records of Van Zandt County, Texas.

(9) Warranty deed from C. B. Epes to Tyler Building and Loan Association, I. Cohen and George H. Davidson, dated November 15, 1898, filed for record January 25, 1899, and recorded in Vol. 59, p. 624, of the Deed Records of Van Zandt County, Texas.

(10) Warranty deed from Geo. H. Davidson and I. Cohen to Tyler Building and Loan Association, dated February 8, 1900, filed for record November 10, 1902, and recorded in Vol. 72, p. 281 of the Deed Records of Van Zandt County, Texas.

(11) Warranty deed from Tyler Building & Loan Association to Alex Sanger, Mrs. Cornelia Sanger, a feme sole, and Sam Sanger, composing the firm of Sanger Bros., a partnership, dated May 24, 1918, filed for record May 31, 1918, and recorded in Vol. 125, p. 525 of the Deed Records of Van Zandt County, Texas.

(12) Power of Attorney from Isaac Sanger, Mrs. Cornelia Sanger, a feme sole, and Alexander Sanger, to each other, dated May 28, 1909, filed for record April 30, 1918, and recorded in Vol. 125, p. 251 of the Deed Records of Van Zandt County, Texas.

(13) Power of Attorney from Sam Sanger to Alexander Sanger, dated April 15, 1918, filed for record April 20, 1918, and recorded in Vol. 125, p. 263 of the Deed Records of Van Zandt County, Texas.

(14) Warranty deed from Alexander Sanger, Cornelia Sanger and Samuel Sanger, as partners of the firm of Sanger Bros., and by Alex Sanger and Samuel Sanger as independent executors of the will of Isaac Sanger, deceased, to Sanger Bros., a corporation, dated December 28, 1918, filed for record February 21, 1919, and recorded in Vol. 129, p. 184 of the Deed Records of Van Zandt County, Texas.

(15) Amendment of charter of Sanger Bros., changing the name to Sanger Investment Company, dated August 23, 1926, filed in the office of the Secretary of State, August 24, 1926, filed for record Dec. 6, 1926, and recorded Dec. 9, 1926, in Vol. 1371, p. 46 of the Deed Records of Dallas County, Texas.

(16) Oil and Gas Lease from Sanger Investment Company to F. E. Lumpkin, dated October 7, 1927, filed for record Nov 9, 1927, and recorded in Vol. 11, p. 315 et seq., Oil and Gas Lease Records, Van Zandt County, Texas.

(17) Assignment of oil and gas lease from F. E. Lumpkin to Humble Oil & Refining Company, dated October 15, 1927, filed for record Nov. 9, 1927, and recorded in Vol. 176, p. 466 of the Deed Records of Van Zandt County, Texas.

(18) Assignment of oil and gas lease from Humble Oil & Refining Company to Gulf Production Company, dated December 28, 1929, filed for record February 7, 1930, and recorded in Vol. 199, page 28 et seq. of the Deed Records of Van Zandt County, Texas.

About 1860, R. W. Berry and his wife moved off the John Walling Survey but lived within a few miles of this land the remainder of their lives. He died in 1883 and his wife died about two years later. The evidence shows that after the year 1861 R. W. Berry did not render any property in the John Walling Survey for taxation and never paid any taxes on any land in said survey, while he did render property in other surveys and paid taxes thereon. Since 1861 this property was rendered for taxes each year with a very few exceptions in the name of the record owners and the taxes were paid by said record owners, but in a few instances after they had become delinquent. There is evidence that while living in the community where this land is located, he nor his wife never made any claim to the property or had anything to do with it whatever, but there is evidence to the effect that they did not make any claim to the property. On October 1, 1883, and after the death of R. W. Berry, his surviving widow, Mahulda Berry, and their children executed a power of attorney to their son, S. P. Berry. This instrument authorized S. P. Berry to collect and receipt for all sums of money due the estate of said R. W. Berry, and further empowered him as their attorney in fact to covenant, grant, bargain, sell and convey to any purchaser or purchasers "all of the right, title and interest that we have in and to all personal property and in and to all real estate, consisting of 175 acres of land more or less out of the Robert Giles Survey of land situated in said Van Zandt County which we own and hold by virtue of being heirs at law of said R. W. Berry, deceased." The said S. P. Berry sold the 175 acres in the Robert Giles Survey. He also, acting under the power of attorney, executed a release of vendor's lien which R. W. and Mahulda Berry had reserved when they conveyed 272 acres out of the Robert Giles Survey.

The evidence further shows that almost if not all of the heirs of R. W. and Mahulda Berry were born and reared in the general vicinity of this land, and many of them lived there all of their lives. None of said heirs at any time ever rendered the land for taxes or paid any taxes on the same and made no claim whatsoever to the land. In fact, none of the heirs ever knew of any claim if any they had, or thought of making any claim thereto until oil was being or about to be produced upon said land, and for about 70 years there was no claim asserted to this land by R. W. Berry, his wife or their heirs. In September, 1929, a man by the name of G. E. Mook called the Berry heirs together and told them that R. W. and Mahulda Berry at one time owned the land in question and that the records failed to show any deed conveying the same out of the said R. W. and Mahulda Berry and that he thought he could recover the land for them. In September, 1929, the heirs executed to said G. E. Mook a power of attorney, authorizing him to employ counsel and proceed to do whatever he could in his power to recover the land, and to compromise upon any terms he saw fit, the said power of attorney to continue for one year or so long as any litigation concerning said land was pending. A large number of the heirs appeared at this meeting, and in order to expedite the proceeding and to prevent the necessity of having to take up all the details with each individual heir, they appointed a committee from the group to represent them in working with the said Mook and in securing counsel and in all other things pertaining to the matter involved.

Within one year from the date of the power of attorney one suit was filed for the recovery of part of the...

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12 cases
  • Hendricks v. Thornton
    • United States
    • Texas Court of Appeals
    • July 29, 1998
    ...or abandoned, the statute of limitations begins to run until it is again repleaded. Berry v. Humble Oil and Refining Co., 205 S.W.2d 376, 385-86 (Tex.Civ.App.--Waco 1947, writ ref'd n.r.e.). Therefore, under the facts in this case, the claim would be barred by limitations. We, however, foll......
  • Clary Corp. v. Smith
    • United States
    • Texas Court of Appeals
    • July 3, 1997
    ...1992, no writ), overruled on other grounds, Lewis v. Blake, 876 S.W.2d 314, 315 (Tex.1994); Berry v. Humble Oil & Ref. Co., 205 S.W.2d 376, 386 (Tex.Civ.App.--Waco 1947, writ ref'd n.r.e.). This is because a dismissal is equivalent to a suit never having been filed; thus, the statute of lim......
  • Aguilar v. Morales
    • United States
    • Texas Court of Appeals
    • January 18, 2017
    ...[1st Dist.] 1992, no writ), overruled on other grounds , Lewis v. Blake , 876 S.W.2d 314, 315 (Tex. 1994) ; Berry v. Humble Oil & Ref. Co. , 205 S.W.2d 376, 386 (Tex.Civ.App.–Waco 1947, writ ref'd n.r.e). This is because a dismissal is equivalent to a suit never having been filed such that ......
  • Crabtree v. Burkett, 7132
    • United States
    • Texas Court of Appeals
    • January 15, 1970
    ...in 433 S.W.2d 9. Neither case has a writ history.2 Shirley v. Waco Tap Ry. Co., 78 Tex. 131, 10 S.W. 543, 552 (1889); Berry v. Humble Oil & Ref. Co., 205 S.W.2d 376, 386 (Waco Tex.Civ.App., 1947, no writ); and Hanner v. Summerhill, 7 Tex.Civ.App. 235, 26 S.W. 906, 908 (1894, error ref.).3 F......
  • Request a trial to view additional results

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