City of Beaumont v. Moore

• Decision Date: 30 April 1947
• Docket Number: No. A-1051.,A-1051.
• Citation: 202 S.W.2d 448
• Parties: CITY OF BEAUMONT v. MOORE.
• Court: Texas Supreme Court

202 S.W.2d 448

CITY OF BEAUMONT v. MOORE.

No. A-1051.

Supreme Court of Texas.

April 30, 1947.

Rehearing Denied June 18, 1947.

COPYRIGHT MATERIAL OMITTED

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

Action by R. A. Moore against the City of Beaumont to recover money paid by plaintiff to defendant for conveyance to plaintiff of a 1/16 royalty interest in land owned and used by defendant as an airport, and for cancellation of various instruments of conveyance. From a judgment of dismissal, the plaintiff appeals to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 195 S.W.2d 968, reversing the trial court's judgment and remanding the cause to the trial court, the defendant brings error.

Judgment of the Court of Civil Appeals affirmed.

George E. Murphy, Harriett A. Rasor, L. T. DeForest, and John L. Bell, all of Beaumont, for petitioner.

George Sonfield and J. B. Morris, both of Beaumont, and K. W. Stephenson, of Orange, for respondent.

FOLLEY, Justice.

The respondent, R. A. Moore, sued the petitioner, the City of Beaumont, to recover $13,772 which he had paid the city for a 1/16 royalty interest in 275.44 acres of land owned and used by the city as an airport. He also sought cancellation of various instruments of conveyance. The trial court sustained certain exceptions to his petition, and, upon his refusal to amend, dismissed the suit. The court of civil appeals reversed the judgment and remanded the cause to the trial court. 195 S.W.2d 968.

It therefore becomes necessary to review the pleadings of the respondent.

It appears from Moore's allegations that the City of Beaumont is a municipal corporation operating under the Home Rule Amendment. Vernon's Ann.St.Const. art. 11, § 5. The city purchased the fee simple title to the land in 1929. It was paid for from the proceeds of bonds voted and issued by the city for the purpose of acquiring an airport; and at all times material to this controversy the land in its entirety was incumbered and impressed with a public servitude for use of the surface as an airport.

Nevertheless, when in 1935 the land became valuable because of oil production and drilling activities upon adjacent lands, the city began negotiations with Moore for the sale to him of the 1/16 mineral royalty for the sum of $13,772, which Moore agreed to purchase at that price. The city had theretofore executed an oil and gas lease of the land to Joseph P. Landry, and the negotiations between Moore and the city were conducted and the agreements entered into under the mutual belief that the land involved was subject to the existing oil and gas lease. On October 17, 1935, the city tendered Moore a deed conveying him the royalty interest mentioned, which he refused to accept because the city had not properly authorized the sale. On November 12, 1935, the city council passed a resolution formerly authorizing the conveyance. On the following day, November 13, 1935, Moore paid the city the agreed consideration of $13,772, and the city delivered him the deed. The city appropriated the money for municipal purposes.

Thereupon Moore entered into negotiations with Julius M. Gordon to sell him a portion of the mineral estate he had acquired from the city. Gordon raised a question as to the necessity of an ordinance rather than a resolution authorizing the conveyance to Moore. The city agreed to obviate that objection, and on January 7, 1936, an ordinance was duly enacted by the city authorizing the sale. Pursuant thereto another general warranty deed dated January 14, 1936, was duly executed by the city and delivered to Moore which was substantially in the same language as the former deed. It purports to convey a 1/16 perpetual royalty in the minerals in the 275.44 acres of land out of the Ashel Savery League in Jefferson County, Texas, known as "the City of Beaumont Airport Tract," and stipulated that the provision for delivering payment of such royalty should constitute a covenant running with the land but that it should not be construed as obligating the grantor to drill or otherwise operate for oil, gas or other minerals against its will. It contained a general warranty clause in the usual terms. It further stipulated that the land was under an oil and gas lease originally executed in favor of Joseph P. Landry, and then held by the Humble Oil & Refining Company, and that the sale was subject to said lease but included one-half of all the oil royalty or other minerals due to be paid under the terms of the lease.

After the passage of the ordinance and the delivery of the second general warranty deed, Gordon still refused to carry out the terms of his agreement to purchase part of Moore's royalty because Gordon thought the city had no authority to convey the minerals since the land had been purchased with the proceeds of a bond issue voted for airport purposes. A lawsuit followed between Moore and Gordon in which the former sought specific performance of the purchase contract. Gordon defended the suit on the ground that the city was without authority to sell the land, or any portion thereof, for purposes inconsistent with its use as an airport, and that consequently Moore could not convey any title thereto. In that suit judgment was rendered for Gordon on February 26, 1937. That judgment was affirmed by the court of civil appeals on October 27, 1938. An application for writ of error by Moore was dismissed by this court on January 25, 1939, and a motion for rehearing was overruled February 15, 1939.

On March 21, 1939, Moore presented the city with his demand in writing requesting the city to comply with its contract of warranty in its deed and to reimburse him with the purchase price paid for the royalty interest. The city refused his claim. Thereafter, on September 29, 1939, his original petition was filed in the instant suit. Thus it appears the suit was filed more than two years, but less than four years, from the date of the conveyance.

In his second amended original petition, upon which the issues as to the pleadings were joined, Moore set out the facts above stated and pleaded a covenant of general warranty and an implied covenant against incumbrances under article 1297, Vernon's Ann.Civ.St., and sought recovery under such warranties on the theory that his title had failed because of the servitude. He also treated the conveyance as void and sought relief because of mutual mistake of the parties. In this connection he asked for cancellation and rescission of all the instruments executed by the city with the resultant return to him of the purchase price. He further asserted a cause of action, in the alternative, for money had and received.

By its special exceptions, which were sustained by the trial court, the city presented the following defenses: (1) That the conveyance was inconsistent with the use of the land as an airport and thus it was ultra vires and void because the land was burdened with such a servitude; (2) that since the city was without power to convey the royalty it was without authority to make the warranties; and (3) that Moore's cause of action was barred by the two-year statute of limitations.

The court of civil appeals held that the city's conveyance to Moore was not void; that the deeds vested Moore with a royalty interest burdened with a servitude which made enjoyment depend upon the contingency of the city's abandonment of the whole or a portion of the airport; and that this was not the interest with which he and the city purported to deal. That court further held that the former case of Moore v. Gordon, Tex.Civ.App., 122 S.W.2d 239, did not determine the issues in this suit. We agree with these conclusions.

Since the city had acquired the land with the proceeds of municipal bonds which had been voted and issued for the purpose of acquiring an airport, the land thus purchased became dedicated to that purpose and the land could not be used for any other purpose which would interfere with its use as an airport until such use in whole or in part was lawfully abandoned by the city. Clement v. City of Paris, 107 Tex. 200, 175 S.W. 672; City of Beaumont v. Matthew Cartwright Land & Improvement Co., Tex.Civ.App., 224 S.W. 589, writ refused; Sayles v. City of Abilene, Tex. Civ.App., 290 S.W. 239, affirmed Tex.Com. App., 295 S.W. 578.

The suit of Moore v. Gordon was one in which the only question was whether Moore could enforce specific performance of his contract with Gordon wherein he had obligated himself to furnish a good and merchantable title to a portion of the royalty which Gordon had purchased free of incumbrances. The court in that case correctly held that Moore was not entitled to the relief sought when he was tendering a royalty interest burdened with a servitude which made the enjoyment thereof contingent upon the abandonment of the airport which the city was not compelled to do. The questions presented in the instant suit were not before the court in Moore v. Gordon.

The court of civil appeals further held in this case (1) that the cause of action for money had and received was barred by the two-year statute of limitations, (2) that no recovery could be had upon the warranties, but (3) that Moore had the right to rescind his agreement and recover the consideration paid by him to the city. We agree with only the first of those conclusions.

The cause of action for money had and received came into existence at the time the purchase money was paid and was not affected by the specific performance suit between Moore and Gordon. More than two years elapsed between the payment of the consideration and the filing of Moore's original petition in this cause. In such situations, as stated by the court of civil appeals, the two-year statute has been rigorously applied. Merryfield v. Willson, 14 Tex. 224, 65 Am.Dec. 117; Rayner Cattle Co. v. Bedford, 91 Tex. 642, 44 S.W. 410, writ refused, 91 Tex. 642, 45 S.W. 554; Causeway...