Clayton v. Humble Oil & Refining Co.

• Decision Date: 12 February 1927
• Docket Number: (No. 1461.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 291 S.W. 597
• Parties: CLAYTON et al. v. HUMBLE OIL & REFINING CO. et al.
• Court: Texas Court of Appeals

291 S.W. 597

CLAYTON et al. v. HUMBLE OIL & REFINING CO. et al.

(No. 1461.)^*

Court of Civil Appeals of Texas. Beaumont.

February 12, 1927.

Rehearing Denied February 23, 1927.

Appeal from District Court, Liberty County; Thos. B. Coe, Judge.

Suit in trespass to try title by Mrs. Rosa Clayton and others against the Humble Oil & Refining Company and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

W. D. Gordon and L. J. Benckenstein, both of Beaumont, and P. C. Matthews, of Liberty, for appellants.

John C. Townes, Jr., G. P. Dougherty, John E. Green, Jr., and C. F. Stevens, all of Houston, E. B. Pickett, Jr., and Llewellyn & Kayser, all of Liberty, C. R. Liskow, of Lake Charles, La., and T. L. Foster, of Dallas, for appellees.

WALKER, J.

This was a suit in trespass to try title, instituted by the heirs of Josephus Clayton, who was a son of Dan Clayton, against the Humble Oil & Refining Company, Sun Oil Company, Progressive Oil Company, Gulf Production Company, and O. A. Schade, to recover a one-third interest in a tract of 255¾ acres out of the David Minchey league in Liberty county, Tex. J. F. Weed and D. J. Harrison were also sued as defendants, but the suit as to Weed was dismissed, and a severance was granted as to Harrison. Dan Clayton owned the tract of land in controversy at the time of his death, leaving it to his three children, to wit, a son, Josephus, Sarah Jane, who married Henry Brown, and Mary Ellen, who married Ben Abshier. It was conceded that appellees are the owners of the two-thirds interest inherited by Mrs. Brown and Mrs. Abshier from their father. But appellants contend that the one-third interest in the land inherited by Josephus from his father was owned by Josephus at the time of his death, and that, as they, as such heirs, have never parted with the title, this suit was instituted by them to recover the Josephus one-third interest in the estate of their father. Appellees contend that Josephus, after reaching his majority, sold his interest in this land to his uncle, J. W. Clayton, in 1870. No such deed was offered in evidence or shown to be in existence, but appellees sought to show that it had been executed and delivered. On the theory that, in fact, they held under a deed from Josephus Clayton to his uncle, John W. Clayton, appellees offered the following chain of title:

(a) Deed from A. Steusoff and A. L. Steusoff, acting as administrators of the estate of John W. Clayton, to Sim De Blanc, who had previously acquired the interests of Mrs. Brown and Mrs. Abshier.

(b) By deed of trust, dated December 19, 1894, after he had acquired the interest of Mrs. Brown and Mrs. Abshier, and the interest of the estate of John W. Clayton in the tract of land in controversy, De Blanc mortgaged the entire tract to W. D. Cleveland & Co.

(c) By deed dated January 24, 1895, De Blanc sold the entire tract to Joseph F. Cannon, who, as part of the consideration, assumed and agreed to pay the mortgage to W. D. Cleveland & Co., but failed to do so.

(d) Afterwards W. D. Cleveland & Co. foreclosed the mortgage against both Cannon and De Blanc on the entire tract of 255¾ acres, and on proper order of sale the entire tract was sold to Cleveland & Co. by the sheriff on the 3d day of November, 1896.

(e) Cleveland & Co. sold the entire tract to J. F. Lasch by deed dated the 7th day of November, 1896.

(f) Lasch sold the entire tract to appellee O. A. Schade by deed dated November 24, 1897, filed for record November 25, 1897. This deed, as did all prior deeds, contained field notes definitely describing and embracing the entire tract of land.

It was agreed by the parties to this litigation that the appellees, other than Schade, deraigned title to the interest claimed by them from and under Schade. At the time Schade took his deed, all the deeds in his chain of title were of record. In addition to claiming the land from and under all three of the children of Dan Clayton, under the chain of title above given, appellees plead the different statutes of limitation. On the issue of limitation, appellants in their brief concede:

(a) O. A. Schade duly acquired his deed, which by its description conveyed to him all the land in controversy, on the 25th of November, 1897.

(b) Schade paid the taxes each year from 1897 to the filing of this suit in 1924, before the same became delinquent.

(c) He duly rendered the land for taxes.

(d) He claimed and exercised dominion over all the land in controversy from the date he bought it in 1897 to the institution of this suit, by selling oil leases on it, by selling small tracts out of it, by expelling trespassers, etc.

(e) In 1910, he placed a tenant in possession of all the land in controversy, who cultivated, used, and enjoyed a small farm of possibly 30 acres, which possession continued without interruption until the filing of this suit; subsequently he placed a second tenant on the land, which possession continued without interruption until the filing of this suit.

(f) In 1908, Schade's attorneys, without consulting him, filed suit in the district court of Liberty county against these appellants, for the purpose of perpetuating the testimony of certain witnesses to the effect that Josephus Clayton, in 1870, sold his interest in the land in controversy to John W. Clayton. Schade's petition fully set forth the purposes of the suit, the name of the witnesses, and the testimony he wanted perpetuated. The record shows that appellants were duly served with copies of this petition; that they were fully advised of the nature and extent of Schade's claim to the land, as reflected by this petition; that they consulted an attorney in relation to this suit, and Schade's claim to the land; that they had an attorney investigate the records to ascertain the character of deeds under which Schade held, and, after the report was made to them by their attorney, they took no further action until a short while before this suit was filed.

(g) The Schade suit that was filed in 1908 was dismissed without being prosecuted to judgment.

(h) In 1912 or 1914, the appellants testified that they had the following correspondence with Schade regarding their interest in the land in controversy:

"Appellants urge that Mr. and Mrs. Mansfield, two of the appellants, testified that about twelve years previous to the trial of this case in February, 1926, Mrs. Mansfield wrote to O. A. Schade, `asking him if he wanted to buy her interest in this property. She wrote and asked him if he cared to invest in her interest in the property that she had at Liberty, and we got a letter in a few days, saying he didn't care to invest, that at the time property wasn't worth anything over here, but might be later.' And, relative to the same alleged letter, Mrs. Mansfield testified that: `I remember about twelve years ago having some correspondence with O. A. Schade concerning this property. I wrote and asked him if he would be interested in buying my interest in the land, and he answered he did not care to invest right then as land wasn't valuable at the present time. I did not know that he was claiming the land against me at that time.'

"On cross-examination, Mrs. Mansfield said: `I don't remember whether it was 1912 or 1913; it was somewhere about twelve years ago. I don't remember whether it was 1910 or not.' Schade denied that he ever received such a letter and stated that he never wrote `either of said parties any letter about any land in Liberty county.' It is argued by appellants, on page 42 of their brief, that it was for the jury to determine whether Mr. and Mrs. Mansfield's testimony was true, and that, if it was true, then Schade `did not repudiate their claim and notify them that he was claiming it adversely,' and that `the effect of this evidence is to negative such adverse claim.'"

Appellants did not offer any evidence or chain of title from and under the original grantee, but rested their title on the theory that they had established a common source title from and under Dan Clayton. When appellants rested, they had not offered a complete common source title (it not being necessary to give the details of this omission); but before closing appellees fully offered all necessary links to establish a common source title from and under Dan Clayton, showing all the links by which each party sought to connect with Dan Clayton.

On the issue of his deed from Josephus to John W. Clayton, the following fairly reflects all the evidence offered:

(a) The inventory of the estate of John W. Clayton contains the following item:

"One-third interest in 255¼ acres of land a part of the David Mincha league fully described in deed bearing date the 6th day of May, 1870, signed by Josephus Clayton conveying the one-third interest to J. W. Clayton. Said deed was recorded on the 26th of May, 1870, by Geo. Ricks, Clk. Valued at $150.00."

(b) All deed records of Liberty county were destroyed by fire December 12, 1874.

(c) The testimony of a daughter of John W. Clayton that she was present and heard the contract between her father and Josephus Clayton, whereby he sold to her father the land in controversy, which she said was in 1874, and that a deed was executed. Contradicting the testimony of this witness, appellants showed that she had previously made an affidavit to the effect that she was present and heard the terms of the transaction, and that, in fact, no deed was executed.

(d) John W. Clayton died in 1878. During his lifetime he neither rendered the land for taxes nor paid taxes thereon. Josephus Clayton did not render the land for taxes, nor did he pay taxes thereon. After the death of John W. Clayton, the land was claimed by his administrators.

(e) In 1874, Josephus Clayton left Liberty county, and was gone for several years. He married while he was away, and his wife died before he returned. After returning to Liberty county, he married again, and asserted an active claim to his interest in...