Buckalew v. Butcher-Arthur, Inc., 4514.

• Decision Date: 30 September 1948
• Docket Number: No. 4514.,4514.
• Parties: BUCKALEW et al. v. BUTCHER-ARTHUR, Inc. et al.
• Court: Texas Court of Appeals

Page 184

214 S.W.2d 184

BUCKALEW et al. v. BUTCHER-ARTHUR, Inc. et al.

No. 4514.

Court of Civil Appeals of Texas. Beaumont.

September 30, 1948.

Rehearing Denied October 20, 1948.

Appeal from District Court, San Jacinto County; W. B. Browder, Judge.

Trespass to try title by L. A. Buckalew and others, against Butcher-Arthur, Inc. and others, which cause was a consolidation of two previously pending actions. From an adverse judgment, plaintiffs appeal.

Affirmed.

Pitts & Liles, of Conroe, Thos. A. Wheat, of Liberty, and Jeff Cochrau, of Cleveland, for appellants.

Vinson, Elkins, Weems & Francis, and Thos. J. Lawhon, all of Houston, and H. S. Lilley, of Cold Spring, for appellees.

WALKER, Justice.

This action is in Trespass to Try Title. The subject matter of the litigation is the title to a 40 acre tract in the William M. Logan 369 acre Survey, formerly in Polk County but now in San Jacinto County, and the proceeds of oil and gas produced from said 40 acres tract.

The action before us is a consolidation of two pending actions. The parties in the trial court may be grouped as follows: (1) The heirs of Ellen Buckalew, wife of J. A. Buckalew; (2) the heirs of G. W. Wright and wife, T. E. Wright. Of this group, Ruth Wright McPherson and Ruby Wright Lilley and some others asserted a ground of recovery in addition to that asserted by the group as a whole, which Mrs. McPherson and Mrs. Lilley have made the subject of a Point of Error in this Court. (3) W. S. Childerss and wife, and (4) Butcher-Arthur, Inc., claiming an oil and gas leasehold, and various persons claiming oil payments under leasehold assignments in Butcher-Arthur's chain of title.

The two actions of which the present action is a consolidation were brought, one by the Buckalew heirs and the other, by the Wright heirs. The Buckalew heirs repleaded after the consolidation and made the other parties defendants. They alleged title to an undivided one-half of the 40 acres tract, specially pleaded title under the 5 and 10 years statutes of limitation, and prayed recovery of title and possession, rents, and one-half of the value of the oil and gas produced from the land in suit.

In response to this pleading the Wright heirs filed a plea of not guilty, They also seem to have used their original petition as one of their trial pleadings; this instrument does not refer to the Buckalew heirs but names W. S. Childerss, Butcher-Arthur, Inc., and the oil payment claimants as defendants. It contains three counts. Count 1 is in the form usually filed in Trespass to Try Title; title to the entire tract is alleged and limitation title under the 5 years statute is specially pleaded. Count 2 alleges that the deed under which the named defendants claimed title was a forgery. This deed was executed by the widow and ten of the twelve children of G. W. Wright, who described themselves as the "sole heirs at law of G. W. Wright, deceased". It is alleged in County 2 that the grantors named in this deed intended only to convey a 55 acre tract which is not involved in this action; that when this deed was executed it contained no description of the land to be conveyed thereby; that later a description, not only of the 55 acres but also of the 40 acres in suit was written into this deed; and that the 40 acres was added without grantors' consent. Count 3 alleges that several of the grantors named in the aforesaid deed were minors when that deed was executed, and expresses a disaffirmance of said deed in behalf of said persons and their successors in title. The named plaintiffs prayed recovery of title to and possession of the 40 acres tract, rents and the value of the oil and gas produced from said land, and for the cancellation of the deed from Mrs. Wright and her children to Hines.

The pleadings of W. S. Childerss, Butcher-Arthur, Inc., and the oil payment claimants need not be described.

The consolidated cause was tried to the court, sitting with a jury, and such parts of the jury's verdict as are relevant are referred to below. On this verdict the Trial Court rendered judgment that the Buckalew and Wright heirs take nothing against W. S. Childerss, Butcher-Arthur, Inc., and the oil payment claimants, and both groups of heirs have appealed.

The Survey was patented to William M. Logan on July 14, 1849. Title out of the patentee by grant, devise or descent was not proved; and Butcher-Arthur, Inc., argues that the judgment must stand because title is thus shown to be outstanding in the patentee or his heirs. The argument need not be adjudicated; we may assume, without deciding, that appellants proved N. R. Dobson to be the common source of title the said N. R. Dobson shown to be the same person as R. N. Dobson, the said N. R. Dobson was in fact the common source of the record chains of title exhibited by the various parties, and the course of these several chains of title and the sources of the various claims made in the trial court were as follows:

(1) General warranty deed, dated Jan. 1, 1900, from the said N. R. Dobson and his wife, M. R. Dobson, to J. A. Buckalew, conveying the land in suit, subject to a vendor's lien.

(2) On the date of this deed, the grantee, J. A. Buckalew, was married to Ellen Buckalew and the beneficial title conveyed by said deed vested in the community estate of the said J. A. and Ellen Buckalew. Mrs. Buckalew died intestate in 1903, and the persons referred to by us as the Buckalew heirs are the heirs of Ellen Buckalew and assert title here to Ellen Buckalew's community interest in the land in suit. There was no administration had of Mrs. Buckalew's estate and no necessity for administration existed.

(3) General warranty deed, dated October 26, 1911, from J. A. Buckalew to G. W. Wright, conveying the land in suit, subject to a vendor's lien.

(4) On the date of this deed, G. W. Wright was married to T. W. Wright. G. W. Wright died in November, 1918, and his wife died in February, 1942. No administration was had of their estates and none was necessary. The persons referred to by us as the Wright heirs are all of the heirs of Mr. and Mrs. Wright, with the possible exception of one Will Whatley, the surviving husband of a daughter of Mr. and Mrs. Wright.

(5) General warranty deed, dated August 2, 1919, from Mrs. T. E. Wright, widow of G. W. Wright, and ten of the twelve children and Mr. and Mrs. Wright, to P. M. Hines, conveying the land in suit and a 55 acre tract as well. This is the deed attacked by the Wright heirs; and it described grantors as the widow and sole heirs at law of G. W. Wright. There is independent proof that the two Wright children who did not sign this deed, namely, Nora and Georgia Wright, who married Will Whatley, were dead when the cause was tried, but none as to when they died.

(6) General warranty deed, dated February 23, 1923, from P. M. Hines and wife, Ellen Hines, to V. W. McMurrey, conveying the land in suit.

(7) General warranty deed, dated June 27, 1924, from V. W. McMurrey to Wm. McMurrey, conveying the land in suit and other lands as well.

(8) Deed of exchange containing general warranties of title, dated September 19, 1931, entered into by Wm. McMurrey and N. R. Dobson, whereby McMurrey conveyed the land in suit to Dobson, and Dobson conveyed to McMurrey a 30 acre tract in another Survey.

(9) General warranty deed, also dated September 19, 1931, from N. R. Dobson and wife, M. R. Dobson, to W. S. Childerss, conveying the land in suit and other lands, subject to a vendor's lien. The consideration recited is grantee's assumption of unpaid taxes, and of a debt owed by grantors to the Federal Land Bank of Houston, which is described as amounting to $962.54 and as being secured by a lien.

(10) Oil, gas and mineral lease dated February 2, 1945, from W. D. Childerss (Defendant Childerss) and wife, Verna Childerss, to DeWitt Gordon, covering the land in suit. This lease is in force, through production.

(11) Title to the leasehold interest under the aforesaid lease is vested in Butcher-Arthur, Inc., subject to oil payments reserved in various assignments under which Butcher-Arthur, Inc. claims title. The owners of these oil payments are among the defendants but need not be named.

The trial court submitted numerous special issues to the jury but the findings may be summarized in general terms as follows: (1) The preponderance of the evidence did not show that defendant Childerss had either actual or constructive notice of the community interest asserted by the Buckalew heirs when he took title to the land or (2) that Childerss' lessee Gordon had such notice when he took his lease, or that Gordon's assignee Berry, or that Butcher-Arthur, Inc., had such notice when these parties acquired their interests in the land. (3) Concerning the claim of the Wright heirs, the jury found that Mrs. T. E. Wright executed and acknowledged the deed to P. M. Hines on the date of said deed, to wit, August 2, 1919, at the same time as did her children Mark, Hosea, Ruth and Ruby. They found further that the description of the land in suit had been inserted in said deed before that deed was executed and acknowledged by said persons and that Mrs. T. E. Wright, Hosea Wright, Mark Wright, Ruth Wright McPherson and Ruby Wright Lilley did agree to sell the 40 acre Buckalew tract to P. M. Hines. (4) They found under Issue 30 that defendant Childerss had been in peaceable and adverse possession, etc., of a part of the land in suit, claiming the whole, for a period of 10 consecutive years prior to January 3, 1947, and found under Issue 31 that the preponderance of the evidence did not show that Childerss' use of a part of the land in suit was "subsidiary and incidental to the improvements" of Childerss on an adjoining tract.

These findings, thus summarized, also reflect theories upon which defendants Childerss, Butcher-Arthur, Inc., and the oil payment claimants founded their claim to the judgment rendered.

Each of the two groups of app...