Clayton v. Ancell

• Citation: 159 S.W.2d 962
• Decision Date: 02 February 1942
• Docket Number: No. 5385.,5385.
• Parties: CLAYTON et al. v. ANCELL et al.
• Court: Texas Court of Appeals

159 S.W.2d 962

CLAYTON et al. v. ANCELL et al.

No. 5385.

Court of Civil Appeals of Texas. Amarillo.

February 2, 1942.

Rehearing Denied March 16, 1942.

Appeal from District Court, Wilbarger County; C. Y. Welch, Judge.

Suit in trespass to try title by George B. Ancell, Jr., and others against Hattie G. Clayton and others, C. L. Apple, and others, and the Consolidated Oil Company, wherein Hattie G. Clayton and others filed a cross-action asserting title and seeking judgment for title and possession, and for cancellation of a power of attorney obtained by C. L. Apple and others, wherein the Consolidated Oil Company filed a disclaimer on which it was discharged, and wherein C. L. Apple and others filed a cross-action. From a judgment in favor of the plaintiffs, Hattie G. Clayton and others appeal.

Judgment reversed, and cause remanded.

Royston & Rayzor, Robert Eikel, Jr., Stewart & De Lange, and Albert J. De Lange, all of Houston, for appellants.

R. B. Anderson and M. G. Poteet, both of Vernon, and Heyser & Hicks, Otis E. Nelson, and Rush H. Record, all of Wichita Falls, for appellees.

JACKSON, Chief Justice.

This suit was instituted by the plaintiffs, George B. Ancell, Jr., Mrs. Lute Ancell, a widow, Mrs. Myrtle Richardson and husband, W. C. Richardson, Mrs. Ethel Marie Barnes and husband, J. B. Barnes, hereinafter called the Ancells, complaining of the defendants, Hattie G. Clayton, a widow, Irene Clayton Uthoff and husband, H. C. Uthoff, and R. L. Clayton, Jr., hereinafter called the Claytons, C. L. Apple, W. H. Rogers, J. A. Chase, J. O. Ammons and E. C. Jordan, hereinafter called Apple et al., and the Consolidated Oil Company, a corporation.

The Ancells sought to recover the northwest quarter of Section 3 in Block 7, H. & T. C. Ry. Co. Survey of land in Wilbarger County, hereinafter called property, from the Claytons and Apple et al. in an action of trespass to try title.

In addition the Ancells alleged that on May 8, 1918 George B. Ancell, Sr., deeded to R. L. Clayton an undivided one-eighth interest in the oil, gas and other minerals on the property; that prior to August 14, 1923 George B. Ancell, Sr., made an agreement with W. H. Peaden to purchase the property from R. L. Clayton for the use and benefit of the Senior Ancell who agreed to reimburse Peaden for the consideration he was required to pay for the property; that in compliance with this agreement Peaden bought the property from Clayton and received a deed therefor and held the title thereto in trust for George B. Ancell, Sr.; that thereafter the legatees and devisees of the Senior Ancell, who died on March 17, 1933, paid to W. H. Peaden $240, obtained a deed from him and thereby acquired title to the property. They also alleged that the Claytons had obtained a quitclaim deed from W. H. Peaden on false and fraudulent representations which was void and asked the cancellation thereof.

The Claytons answered by general demurrer, general denial and a plea of not guilty. In addition they asserted title and sought judgment for title and possession to the royalty by way of a cross-action. They also pleaded that Apple et al. had obtained from them by false and fraudulent representations a power of attorney which they prayed to have cancelled.

The Consolidated Oil Company filed a disclaimer on which it was discharged. Apple et al. filed an answer and a cross-action but failed to perfect an appeal from the judgment, hence, it is unnecessary to set out the pleadings or facts pertaining to the claim of Apple et al.

At the close of the testimony the court peremptorily instructed the jury to return a verdict in favor of the Ancells and on the verdict so returned he rendered judgment that the Ancells have and recover the title and possession to the property with their writ of restitution together with their costs except that incurred by reason of the Consolidated Oil Company having been made a party.

The Claytons are the only defendants who perfected an appeal to this court.

They challenge the action of the court in directing a verdict against them and rendering the judgment thereon inasmuch as the record discloses that the legal title to the one-eighth royalty interest was vested in them and the evidence was insufficient to show as a matter of law that W. H. Peaden held the title of the property in trust for George B. Ancell, Sr., or that the Claytons had obtained their deed by false and fraudulent representations.

The record shows that George B. Ancell, Sr., who died March 17, 1933, is the common source of title. He left a will that was duly probated in which he devised and bequeathed all of his property to his wife, Lute Ancell, or Mrs. George B. Ancell, his two daughters, Myrtle, who married W. C. Richardson, and Ethel Marie, who married J. B. Barnes, and his son, George B. Ancell, Jr.

Mrs. Hattie G. Clayton is the surviving wife of Dr. R. L. Clayton, who died December 1, 1933, and the others called Claytons are their children. He left a will that was duly probated and bequeathed and devised all of his property to his surviving wife, Hattie G. Clayton.

George B. Ancell, Sr., on May 8, 1918 conveyed to Dr. R. L. Clayton a one-eighth undivided interest in the oil, gas and minerals in and under the property and expressed his intention thus: "It being my intention to convey unto the said R. L. Clayton, all of my rights, title and interest in and to the above described premises, viz: a one-eighth (1/8th) royalty, including rentals and bonuses that may be paid on above described land, except rentals and bonuses on lease now in force."

On August 14, 1923 Dr. R. L. Clayton sold and conveyed to W. H. Peaden for the recited consideration of $1 his royalty interest in the property. On this instrument written in pencil following the acknowledgment of Dr. Clayton is this notation: "May 26-25 This it to certify that lease contract is hereby cancelled and of no further force and effect. (Signed) W. H. Peaden Witness: J. C. Eatherly."

This deed was filed and recorded in the office of the county clerk of Wilbarger County on August 8, 1939.

On August 9, 1939 W. H. Peaden by quitclaim deed bargained and sold the royalty interest in the property to Hattie G. Clayton and this quitclaim deed was duly filed in the deed records of Wilbarger County on August 14, 1939.

On September 15, 1939 W. H. Peaden by an instrument in writing, after giving the date of the sale from George B. Ancell, Sr., to R. L. Clayton of a one-eighth royalty interest in the property, the record of the instrument, that on August 14, 1923 Clayton conveyed the royalty interest to W. H. Peaden and on May 26, 1925 he sold for a valuable consideration the same mineral interest by the note penciled on the Clayton deed to George B. Ancell, Sr., and delivered the original assignment from Clayton, he states some question has arisen about the sufficiency of the penciled assignment and recites for and in consideration of $1 he ratifies the former assignment in pencil and sells, transfers and conveys such royalty interest to the Ancells.

On March 1, 1941 W. H. Peaden assigned to the Ancells all claims and causes of action had by him against the Claytons which "were connected with and arose out of my having an interest in the land", which we have designated the property; authorized suit to be brought by the Ancells to recover the land or damages but provided that he should be held harmless from any claims for court costs,...