Caruthers v. Leonard

• Decision Date: 10 October 1923
• Docket Number: (No. 396-3734.)
• Citation: 254 S.W. 779
• Parties: CARUTHERS v. LEONARD.
• Court: Texas Supreme Court

254 S.W. 779

CARUTHERS v. LEONARD.

(No. 396-3734.)

Commission of Appeals of Texas, Section B.

October 10, 1923.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by M. B. Leonard against O. A. Caruthers. From a judgment of the Court of Civil Appeals (236 S. W. 189), reversing a judgment for him, defendant brings error. Affirmed in part, and reversed and rendered in part.

Anderson & Upton, and Hill & Hill, all of San Angelo, for plaintiff in error.

Wardlaw & Elliott, of Sonora, for defendant in error.

HAMILTON, J.

M. B. Leonard brought this suit against O. A. Caruthers, partly in the form of trespass, but also to recover from Caruthers one-half of $1,152.90, which was one-half of 30 cents an acre on 3,843 acres of land, all situated in Menard county, and being a part of the land leased by Evans to Weir, as appears below; all of said money having been paid to Caruthers by the assignee of Weir.

Caruthers answered by general demurrer, special exceptions, general denial, and, as a cross-action, alleged that the written conveyances, wherein C. H. Evans and wife, Mary E. Evans, conveyed to plaintiff an undivided one-half interest in and to all the natural gas, oil, petroleum, coal, and other mineral substances in, on, and under the land as shown by the instruments, the form of which, excepting the description of the land, is set out below in full, were null and void from their inception, and that the record of those instruments in Menard county create and cast a cloud on his title to the lands. He prayed for judgment canceling, annulling, and holding for nought all of those instruments, and for removal of cloud cast upon his title to the lands by the record of those instruments.

On June 5, 1918, C. H. Evans and his wife, for and in consideration of $1,662.90 to them paid by James A. Weir, executed and delivered to him a lease on 5,543 acres of land, more or less, situated in Menard, Concho, and Tom Green counties —

"for the purpose of prospecting for oil, gas, sulphur, and other minerals and the production of same therefrom, together with the exclusive right of ingress and egress at any time to prospect, drill, mine, and otherwise operate hereunder, and the right to erect, maintain, and remove all necessary or proper structures and appliances, including the right to pull the piping from the wells, and to install, maintain, and remove all tanks and other means of storage and all pipes and other means of transportation; and subject to the royalties hereinafter mentioned, there is hereby granted and conveyed to said lessee all of the oil, gas, sulphur, and other minerals in and under said land." (Italics ours.)

The lease provided that, if operations for drilling an oil or gas well on the land were not begun before June 5, 1919, the lease should terminate as to both parties, unless the lessee, on or before that date, should pay or tender to the lessor $1,662.90; that the payment or tender of that amount should confer on the lessee the privilege of deferring the time limit for 12 months from that date; that, upon like payments of that amount, thereafter, the time limit might be deferred further for additional periods of 12 months successively, provided that the lease could not be kept in force by such payments, in the absence of drilling operations, for a longer period than five years from the date last above set forth; that after operations for drilling an oil or gas well shall have been begun on the leased land, it shall not be necessary for the lessee to make any further payments in lieu of drilling operations in order to keep the lease in force; that during the period of five years, drilling might be suspended from time to time without terminating the lease, provided the lessee shall have paid or tendered the amount thereinbefore mentioned for the then current year; and that, "if the estate of either party hereto is assigned, and the privilege of assigning in whole or in part is expressly allowed, the covenants hereof shall extend to the assigns and successive assigns, but no change in the ownership of the land or the rentals or royalties, by purchase or otherwise, shall be binding on the lessee until it shall have been furnished with notice and proper evidence of such change."

The instrument was signed, duly acknowledged, and was recorded in Menard county.

On February 3, 1919, Evans and his wife executed and delivered to M. B. Leonard seven written transfers, including the land involved in this suit, all of which were filed for record in Menard county on February 27, 1919, and duly recorded in the deed records of that county. The forms of these instruments, except the descriptions of the land, were identical and, with that exception, each was as follows:

"The State of Texas County of Sutton — ss.:

"Know all men by these presents: That C. H. Evans and wife, Mary E. Evans, of the county of Sutton, state of Texas, in consideration of $175 to us cash in hand paid by M. B Leonard, the receipt of which is hereby acknowledged, have granted, sold and conveyed, and by these presents do bargain, grant, sell, and convey, unto the said M. B. Leonard an equal one-half undivided interest in and to all the natural gas, oil, petroleum, coal, and other minerals and mineral substances in, on, and under the following described lot, tract, or parcel of land lying and being situated in Menard county, Tex., and being all of the north and east seven-eighths of section No. 5, certificate No. 1/304, original grantee, B. S. & F., containing 560 acres of land, more or less, together with the right to enter thereon, open mines, drill wells, lay pipes, and erect all structures and appliances necessary or convenient in searching for, procuring, caring for, storing, and removing any natural gas, oil, petroleum, or other minerals or mineral substances of whatever nature and kind whatsoever that may be found thereon, or thereunder, and to erect telephone and telegraph lines for use in the business thereon together with the right to remove any and all fixtures placed thereon.

"It is expressly understood and agreed that the surface of the above-described land is conveyed only for all purposes and uses above set forth. And this conveyance is subject to the terms and provisions of a lease (if valid) executed by C. H. Evans and wife, Mary E. Evans, to James A. Weir, on the 5th day of June, 1918, and recorded in book 32, page 42, of the Records of Menard county, Texas;

"To have and to hold the same unto the said M. B. Leonard his heirs, administrators, and assigns forever.

"We do hereby bind ourselves, heirs, executors, and administrators to warrant and forever defend all and singular said gas, oil, petroleum, coal, and mineral rights herein conveyed unto the said M. B. Leonard, his heirs and assigns against the lawful claim of every person claiming or to claim the same or any part thereof.

"Witness our hands, this 3d day of February, A. D. 1919.

                                           C. H. Evans
                                          "Mary E. Evans."
                

[Statutory acknowledgment.]

On January 3, 1919, James A. Weir executed a transfer or assignment, by the terms of which, "for and in consideration of the sum of $100 and other valuable considerations paid," he sold, assigned and set over unto W. H. Reid, his heirs, administrators, and assigns, all right, title, and interest of Weir in and to the oil, gas, and mineral lease and contract executed and delivered to Weir by C. H. Evans and wife on June 5, 1918, above described. This assignment or transfer was duly acknowledged and was filed for record May 31, 1919, and recorded in the deed records of Menard county.

The form of all the instruments referred to above are set out in full in the opinion of the Court of Civil Appeals in this case. 236 S. W. 189.

The trial court filed findings of fact, which are set out in full in the opinion of the Court of Civil Appeals, supra. The trial court's conclusions of law follow:

"(1) I find that the conveyance by said C. H. Evans and wife to plaintiff, M. B. Leonard, of their reversionary interest in the natural gas, oil, etc., in and under the lands in said transfer described, was and is null and void and inoperative, and vested in the plaintiff no interest or title to said natural gas, oil, etc.

"(2) I find that the plaintiff by his said transfer and conveyance from C. H. Evans and wife did not acquire any right, title, or interest in the moneys paid by the assignee of the Weir lease for the...