Branham v. Minear

• Decision Date: 17 January 1947
• Docket Number: No. 2553.,2553.
• Citation: 199 S.W.2d 841
• Parties: BRANHAM et al. v. MINEAR.
• Court: Texas Court of Appeals

Page 841

199 S.W.2d 841

BRANHAM et al. v. MINEAR.

No. 2553.

Court of Civil Appeals of Texas. Eastland.

January 17, 1947.

Rehearing Denied February 21, 1947.

Appeal from District Court, Howard County; Cecil C. Collings, Judge.

Action in trespass to try title by Roy A. Minear against E. T. Branham, Sam Garth, Jr., Verna Lee C. Garth, C. B. Lawrence, and others. From a judgment for plaintiff, named defendants appeal.

Affirmed.

Paul Petty, of Ballinger, for appellants.

Stubbeman, McRae & Sealy, of Midland, for appellee.

GRAY, Justice.

In an action in trespass to try title, appellee Roy A. Minear, owner of the oil, gas and other mineral rights in four sections of land in Howard County, Texas, sued appellants E. T. Branham, Sam Garth, Jr., and wife Verna Lee Canuteson Garth and C. B. Lawrence, together with numerous other defendants not necessary here to name, owners of the surface rights of said four sections of land and claimants of said mineral interests. By disclaimers, dismissals and failure to appeal, all defendants except those named, were eliminated. The lands involved in this appeal narrows to two tracts: Section 17, Block 31, Township 2 North, T. & P. Ry. Co. containing 640 acres, more or less, and the West 1/2 of Section 24, Block 32, Township 2 North, T. & P. Ry. Co. containing 320 acres, more or less.

Appellants answered in the trial court by pleas of not guilty, general denial and specially pleaded limitation of three, five, ten and twenty-five years. A jury was duly empaneled to try the case, and at the conclusion of the evidence, defendants (appellants) filed their motion for an instructed verdict, which motion was denied. Thereupon the court, being of the opinion that there were no fact issues to submit, and that, plaintiff was entitled to recover as a matter of law, dismissed the jury and rendered judgment for appellee, from which action of the trial court this appeal resulted. No statement of facts has been brought forward in the record, but at the request of appellants, the trial judge filed findings of fact and conclusions of law.

Findings believed to be pertinent to this appeal may briefly be summarized as follows:

1. That plaintiff (appellee) had an unbroken chain of title through deeds and valid probate proceedings effective to pass title from the sovereignty of the soil down to himself.

2. That defendants (appellants) had never at any time been in possession of the oil, gas and other minerals, adverse or otherwise, in, under, and that may be produced from said lands.

3. That defendants (appellants) had not paid taxes before they became delinquent for each and every year for a period of twenty-five years prior to the filing of said suit.

4. That no wells for oil and gas had been drilled on said lands, no mines sunk for other minerals, and no oil, gas or other minerals produced therefrom.

5. That said oil, gas and other minerals had formerly been owned by aliens.

6. That no report of such alien ownership had ben filed in accordance with Article 176, Revised Civil Statutes.

7. That no evidence was introduced showing that the State of Texas ever instituted proceedings to recover said tracts of land.

8. That on April 1, 1903 Jane Wightwick, an alien, by warranty deed conveyed said lands to Phillip S. Morgan, in which deed said grantor reserved for herself "any minerals on said land," which was a severance of the mineral from the surface estate.

9. That plaintiff's title was a good fee simple title to said oil, gas, and other minerals.

Under the finding of the trial court that plaintiff (appellee) had a good fee simple title to said oil, gas and other minerals, which finding was fortified by a detailed statement of each and every muniment of title, and the further presumption indulged in favor of the judgment, together with the finding that defendants had not been in possession of same, adverse or otherwise, and had not paid taxes before delinquency, it would seem that an affirmance of the case might be made without further discussion. But appellants attack said finding as to appellee's fee simple title for the alleged reason that said lands while owned by aliens had automatically or ipso facto been forfeited by failure to file reports of ownership as required by said Article 176. As we shall hereinafter attempt to show, there was no such forfeiture, but even should we be mistaken in this and there had been a forfeiture, such forfeiture would have been to the State and could not have inured to the benefit of appellants, unless by reason thereof, appellee was not entitled to recover on the strength of his own title. Such forfeiture, if there was one, was an escheat, and since Title 5, Revised Civil Statutes relates primarily to alien ownership, we think it necessary to consider constitutional provisions as well as statutes relating to escheat in connection with said Title 5 in disposing of this appeal.

Article 5, Section 8, Constitution of Texas, Vernon's Ann.St., confers on the District Courts original jurisdiction "in all suits in behalf of the State to recover penalties, forfeitures and escheats" and "of all suits for trial of title to land and for the enforcement of liens thereon". Article 172, Title 5, Revised Civil Statutes is as follows:

"The Attorney General or the district or county attorney when he shall be informed or have reason to believe that lands in this State are being held contrary to the provisions of this title shall institute suit in behalf of the State of Texas praying for the escheat of the same on behalf of the State."

Article 171, Title 5, contains this provision:

"Any alien who shall hereafter acquire lands in Texas, in contravention of the provisions of this title, may, nevertheless, convey the fee simple title thereof at any time before the institution of escheat proceedings as hereinafter provided."

From Article 176, we quote:

"Any alien or alien corporation who may now own land in Texas, or who may hereafter acquire any land in Texas, by purchase or otherwise, who does not within the time prescribed in this article, file the reports herein provided for, shall be subject to have such land forfeited and escheated to the State of Texas." (Emphasis ours.)

Turning to Title 53, Revised Civil Statutes, Vernon's Ann.Civ.St. art. 3272 et seq., relating to escheat, we find that Article 3272 declares when and under what conditions estates shall escheat to the State. Any person paying taxes to the State on such property, either personally or through an agent, is not concluded by the judgment unless he be made a party and cited. The concluding sentence of the article prescribes the diligence which must be used to perfect service. Article 3273 sets out requirements of the petition, which must be sworn to, the facts and diligence used to discover the claimants of the property, the facts and circumstances by which the property was claimed to have escheated and prayer that same be escheated and for writ of possession on behalf of the State. Article 3274 provides for citation as in other civil causes, and Article 3275 further provides for an additional citation by publication to all persons interested. Subsequent articles relate to the trial and judgment and provide that writ of possession shall not issue until two years from date of final judgment. The quoted constitutional and statutory provisions leave no room for doubt that an escheat in this State comes only through a judicial proceeding. Even though the facts as to an escheat may exist, a judgment of court is necessary to establish and give them legal vitality.

Under Title 5, relating to alien ownership of land, we think there can be no doubt from the language used in several articles that a judicial proceeding was contemplated and required. Article 172, quoted above, provides that the district or county attorney, if informed or having reason to believe that lands in this State are being held contrary to the provisions of said Title, "shall institute suit in behalf of the State of Texas praying for the escheat of the same on behalf of the State." If there had been an ipso facto forfeiture of the lands, why the positive requirement that a suit be instituted? Under Article 171, aliens who had acquired lands in this State contrary to Title 5 were, nevertheless, authorized to convey same by good fee simple title before escheat proceedings were begun. Undoubtedly the Legislature did not intend to create an anomaly in that one, who though having ipso facto forfeited lands, was yet authorized to convey same in fee simple.

In Article 176, the failure to file the required report of ownership within the time prescribed rendered the land subject to be forfeited and escheated to the State. We do not construe this as providing for an ipso facto forfeiture, but as negativing same. Had the Legislature intended the penalty to be an ipso facto forfeiture of the land, it would undoubtedly have said so instead of saying the land should be subject to be forfeited and escheated. The language used clearly indicates a future proceeding, something yet to be done or performed. In 1941, the Legislature added Article 176A to the title, which reads as follows:

"All aliens and all alien corporations that have not, within the times prescribed by Article 176, filed the reports therein provided for, may file such reports on or before the last day of December, 1941, and such filings shall be deemed compliance with Article 176."

Article 176, enacted in 1921, required such reports to be filed on or before the last day of January, 1926. While failure to file same rendered the property subject to be forfeited and escheated to the State, yet in 1941, the Legislature by adopting Article 176A recognized that such forfeitures had not actually occurred.

But we are not confined alone to the statutes for authority for the views expressed above. The courts of Texas have recognized from the Republic down through the years and under the...