Bradley v. Howell
| Decision Date | 03 March 1939 |
| Docket Number | No. 13945.,13945. |
| Citation | 126 S.W.2d 547 |
| Parties | BRADLEY et al. v. HOWELL |
| Court | Texas Court of Appeals |
Appeal from District Court, Wichita County; Allan D. Montgomery, Judge.
Suit for specific performance by J. H. Howell against R. J. Bradley and others to enforce an alleged written contract to execute and deliver an oil and gas lease to the plaintiff, wherein the named defendant filed a cross-action. From a judgment in favor of the plaintiff, the defendants appeal.
Judgment reversed and judgment rendered for the defendants.
A. H. Britain, of Wichita Falls, for appellants R. J. Bradley et ux.
Kilgore & Rogers, of Wichita Falls, and Hardwicke & Cheek, of Fort Worth, for appellants the Kadanes and J. E. Farrell.
Ben W. Tipton, of Electra, and T. R. Boone and Kearby Peery, both of Wichita Falls, for appellee.
The record is so voluminous and the briefs are so extensive and exhaustive that we felt the necessity of examining the entire transcript and all of the evidence found in the statement of facts. From these we conclude that the following is a fair statement of the facts leading up to, and the nature and result of the suit:
This is a suit predicated upon the primary right of specific performance brought in the District Court of Wichita County by J. H. Howell against R. J. Bradley and wife, Rado Bradley, Jack E. Kadane, Mike E. Kadane, Kadane, Inc., and J. E. Farrell as defendants. The suit arose out of the purported execution by R. J. Bradley of a written contract to execute and deliver an oil and gas lease to J. H. Howell covering 343 acres of the M. L. Gahagan Survey in Wichita County, which survey is a part of the K. M. A. Oil Field. The M. L. Gahagan Survey contains 503 acres of land. Subsequent to the execution of said purported contract, R. J. Bradley and his wife, and various other individuals who are tenants in common with the said R. J. Bradley in the ownership of the minerals in and under said Gahagan Survey, joined in the execution and delivery of an oil and gas lease on said 343 acres of land to Jack E. Kadane, as Lessee, which lease was subsequently assigned to Kadane, Inc. Thereafter Kadane, Inc., assigned said lease insofar as 93 acres of said land were concerned to J. E. Farrell, of Tarrant County.
The following facts are undisputed in the record:
J. H. Bradley, the ancestor of all of the Bradleys involved in this suit, including R. J. Bradley, in 1919, owned as his separate property (his wife having died many years before he acquired his interest) the 503-acre M. L. Gahagan Survey. He had six children, all of whom were still living at the time of the death of J. H. Bradley in 1921 or 1922.
In 1919 a warranty deed was drawn in which J. H. Bradley (the father) and all of his children, except R. J. Bradley, were named as grantors, which deed conveyed to the said R. J. Bradley, as grantee, the following land:
This deed recited a consideration of $5,000 cash paid by R. J. Bradley and the further consideration that the said grantee, R. J. Bradley, should care for the support of his father, J. H. Bradley, for the remainder of his natural life. The deed was signed and acknowledged by all of the brothers and sisters of R. J. Bradley (they owning at that time no interest in the land), but it was not signed or acknowledged by J. H. Bradley, the father, who was named as one of the joint grantors, and who actually owned the land.
Thereafter, in 1922, J. H. Bradley, the father and ancestor, died intestate, having never prior to his death either signed or acknowledged said deed.
Thereafter, Jennie Dees, one of the daughters of J. H. Bradley, died intestate, leaving several children; and F. A. Bradley, a son, died, leaving a widow and six children, three of whom were still minors in 1937. All of the minerals in and under the 503-acre M. L. Gahagan Survey were, in 1937, owned in undivided portions by R. J. Bradley and by his various brothers and sisters, and nieces and nephews, their relations being that of tenants in common. The ownership of the surface of the land is not in controversy. For many years the land had been continuously used and occupied by R. J. Bradley and his wife, Rado Bradley, as their homestead.
R. J. Bradley, in 1937, was also the owner of the Simpson Holloway Survey, which lies immediately east of the Gahagan Survey. On or about, or shortly prior to, October 1, 1937, J. H. Howell approached R. J. Bradley with reference to the matter of securing an oil and gas lease on 80 acres of the Simpson Holloway Survey, and also with reference to securing an oil and gas lease on 343 acres of the Gahagan Survey. Bradley explained to Howell that, while he owned the Holloway Survey in fee, he was a tenant in common with various individuals, whom we shall call the Bradley heirs, as to the ownership of the minerals in the Gahagan Survey, and that Bradley had no authority to bind his tenants in common by the execution of an oil and gas lease on the Gahagan Survey.
A parol understanding, apparently somewhat as follows, was reached on October 1, 1937, towit: R. J. Bradley and his wife, Rado Bradley, on that day executed and delivered to Howell an oil and gas lease covering 80 acres of land in the Simpson Holloway Survey, and, simultaneously with said delivery, Howell paid to Bradley the sum of $1600. Bradley would also send around to the various owners of undivided interests in the minerals in the Gahagan Survey, including the guardian of the minor heirs, an oil and gas lease covering 343 acres of the 503 acres in said survey. If the lease on the 343 acres of the Gahagan Survey was consummated by all of the tenants in common, including the guardian of the minor heirs, properly executing, acknowledging and delivering the same, Howell was to be entitled to a credit on the bonus consideration recited in said Gahagan lease of $800; that is, of the $1,600 cash paid to Bradley for the Holloway lease, $800 thereof should, in such event, be accepted as a full bonus consideration for the Holloway lease, and $800 should be applied on the recited consideration for the Gahagan lease. It was likewise agreed by parol that, in the event all of the tenants in common who owned mineral interests in the Gahagan Survey did not consummate said lease or some of them refused to execute and deliver the same, Howell should pay to Bradley an additional $400 consideration for the Holloway lease, making a total consideration for said lease of $2,000.
As stated, the lease on the Holloway 80 acres was executed and delivered on October 1, 1937, Howell's attorney, Tipton, likewise on October 1, 1937, prepared an oil and gas lease covering 343 acres of the 503-acre Gahagan Survey in which all of the tenants in common, twenty-five in number, including the guardian of the minor heirs, were named as joint lessors, and J. H. Howell was named as lessee. Places were provided at the end of said lease for the signature of each of said twenty-five tenants in common. The lease so prepared recited a lump consideration of $3,430. It was for a term of three (3) years from date and as long thereafter as oil and gas were produced.
Up to this point no written memorandum of any kind was executed between Bradley and Howell. Bradley took the Gahagan Survey lease which had been prepared by Howell's attorney, a copy of same being retained by Howell. R. J. Bradley and his wife then signed and acknowledged the lease and proceeded to start it around to the various Bradley heirs with a letter of explanation. At the same time Bradley delivered to Howell's attorney, Tipton, the abstracts of title on the Gahagan Survey.
On October 16, 1937, Howell accidentally encountered Bradley in the town of Electra, Texas, and asked Bradley to go to Tipton's office for the purpose of executing an affidavit of expiration with reference to an oil and gas lease on the Holloway Survey. At that time, at Howell's suggestion, a written memorandum with reference to the Gahagan transaction was prepared by Tipton, Howell's attorney, which memorandum was as follows:
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...shows that this case has been followed and its holding on this point never questioned by any court. In the case of Bradley v. Howell, Tex.Civ.App., 126 S.W.2d 547, writ dismissed, correct judgment, it was held that in order to constitute a valid lease of the oil, gas and other minerals on t......
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