Chancellor v. Brachman

• Decision Date: 11 July 1931
• Docket Number: No. 12534.,12534.
• Citation: 41 S.W.2d 1015
• Parties: CHANCELLOR v. BRACHMAN.
• Court: Texas Court of Appeals

41 S.W.2d 1015

CHANCELLOR v. BRACHMAN.

No. 12534.

Court of Civil Appeals of Texas. Fort Worth.

July 11, 1931.

Rehearing Denied September 19, 1931.

Appeal from District Court, Young County; Allan D. Montgomery, Judge.

Suit by W. P. Chancellor against S. Brachman. From a judgment for part of amount claimed, plaintiff appeals.

Affirmed.

C. W. Johnson, Jr., of Graham, and Marvin H. Brown and Walter D. Nicholson, both of Fort Worth, for appellant.

E. L. Gilbert, of Fort Worth, and Fred T. Arnold, of Graham, for appellee.

BUCK, J.

W. P. Chancellor, of Young county, sued S. Brachman, of Tarrant county, and for cause of complaint, as shown in the third amended original petition, he alleged that on August 18, 1930, plaintiff was lawfully seized and possessed of certain described lands situated in Young county; that, on the day and year last mentioned, defendant unlawfully entered upon said premises and ejected defendant therefrom, and unlawfully withholds from him the possession thereof, to his damage in the sum of $25,000. That plaintiff and defendant entered into a written contract, which will be hereinafter set out, and in pursuance of said contract defendant took in trust said lease in his own name for the plaintiff. That defendant has collected and is collecting the consideration for the various sales of said lease and interests therein, and has repudiated said trust set out in said contract, and is denying plaintiff's interest in said leasehold estate.

The contract referred to is as follows:

"State of Texas, County of Young:

"This contract and agreement made and entered into this the 9th day of July, A. D. 1930, by and between S. Brachman as Party of the first part, and W. P. Chancellor, as party of the second part.

"Witnesseth

"Whereas, first party is the owner and holder of an oil and gas lease on the following described land, situated in Young County, Texas, towit:

"First tract: The north 240 acres of T. E. & L. Company Survey No. 31, Abstract No. 307;

"Second tract: The South 120 acres of the East one half of T. E. & L. Company Survey No. 40, Abstract No. 316, and

"Whereas, first party is desirous of having a well drilled for oil and gas purposes on some portion of said land, and of having second party sell acreage around said well.

"Therefore, it is agreed by and between the parties hereto as follows, towit:

"1. That first party will furnish $2200.00 in purchasing said oil and gas leasehold estate on the above described land, and second party will furnish the sum of $500.00 for the purchase of said oil and gas lease, and that second party will give his time and best efforts in an effort to sell acreage and interests in said well so as to take care of the consideration to be paid for said lease, and the cost incident to the drilling of a well on said land.

"2. First party shall accept and approve all of the sales of acreage to be made and to that end will have to sign all contracts and assignments for the sale or looking to the sale of said acreage of interests in said well to be drilled.

"3. All monies collected from the sale or acreage or interest in said well shall be divided between first and second parties in the following proportions; that is to say, in the proportion that each party has put up for the purchase price of said lease, and the cost of drilling said well. For example, first party is to have and receive 2200/2700 of each dollar so received, and second party is to have 500/2700 of each dollar so collected until the purchase price of said lease shall have been repaid and in like manner until the cost of the drilling of said well has been paid.

"4. In the event second party has failed at the time the well is completed, to sell oil and gas leasehold estate on the above described land, or interest in said well, or a sufficient amount to pay off the $2700.00 and the cost of drilling said well, then and in that event second party shall then be entitled to have and receive as his part and portion in said block of acreage an undivided 1/4 interest, in and to the leases remaining unsold at the time of said completion of said well.

"5. It is contemplated that second party shall pay towards the purchase price of said lease, the sum of $500.00 and that he will give his time and best efforts to sell off acreage in payment of said consideration for said lease and the expense of drilling said well. And in the event second party should fail or refuse to pay in his $500.00 to be applied on the purchase price of said lease as herein stipulated, on or before the time that the title to the above described land is accepted, then second party shall only have and be entitled to receive an undivided 1/8 interest in and to the remaining acreage on hand and undisposed of at the date of the completion of the said well. The well contemplated by this contract is to be commenced on or before 45 days from the date the title to the above described land is accepted as merchantable, and said well is to be drilled to the 750 foot depth, unless oil or gas is found in paying quantities at lesser depth.

"6. In the event second party has, at the time of the completion of the well contemplated in this contract, cleared said acreage by raising the cost of said acreage in the amount of $2700.00, and the cost of drilling said well, then and in that event second party is to have and receive as his share and portion of said oil and gas leasehold estate, an undivided 1/2 interest in and to the then remaining unsold portion or portions of said oil and gas lease.

"7. In the event oil or gas is found in paying quantities on said lease, first party shall have charge of all future development and operation and the future costs of development and operation shall be borne proportionately by the parties hereto. That is to say, each party will own a working interest in said lease, subject to first party's right of development and operation as aforesaid.

The terms and provisions of this contract shall extend to and be binding upon the heirs and assigns of all parties hereto.

"Witness our hands this the 9th day of July, A. D. 1930.

                                        "S. Brachman
                                        "W. P. Chancellor
                

"State of Texas, County of Young:

"Before me, the undersigned authority, a notary public in and for Young County, Texas, on this day personally appeared S. Brachman and W. P. Chancellor, known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed.

"Given under my hand and seal of office, this the 9th day of July, _____.

                "B. W. King, Notary Public, Young County
                                                   Texas."
                

Defendant answered by a general demurrer and a general denial, and specially pleaded that he was not guilty of the wrongs, injuries, and trespasses set out in plaintiff's petition.

Upon a trial before the court without the intervention of a jury, the trial court gave judgment for plaintiff for an undivided one-sixteenth interest in the oil and gas leases covering the west 160 acres of the north 240 acres of the T. E. & L. Co. survey No. 31, abstract No. 307, Young county, Tex., and an undivided one-sixteenth interest in the oil and gas leases covering the east 80 acres of the north 240 acres of the T. E. & L. Co. survey No. 31, abstract No. 307, Young county, Tex., less a 20-acre lease in the form of a square, carved out of the northeast corner and previously sold to ...