Colvin v. Tomlinson

• Decision Date: 18 March 1927
• Docket Number: (No. 284.)
• Citation: 293 S.W. 313
• Parties: COLVIN v. TOMLINSON et al.
• Court: Texas Court of Appeals

293 S.W. 313

COLVIN v. TOMLINSON et al.

(No. 284.)

Court of Civil Appeals of Texas. Eastland.

March 18, 1927.

Rehearing Denied April 15, 1927.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Action by Mollie Lee Tomlinson and husband against J. D. Colvin and another. Judgment for plaintiffs, and defendant J. D. Colvin appeals. Affirmed.

Scott & Holloway, of Cisco, for appellant.

Chastain & Judkins, of Eastland, for appellees.

LESLIE, J.

Appellees, plaintiffs below, sued the defendants, M. D. Paschall and J. D. Colvin, for $833.33, alleged to be the value of a one-third interest owned by appellee, Mollie Lee Tomlinson, in certain oil well machinery, tools, and equipment, which was further alleged to have been converted by the defendants to her damage in the above sum. The defendants entered general and special denial of these allegations.

The ownership of Mollie Lee Tomlinson in said machinery and equipment is alleged in general terms, that is, that she was the "legal and equitable owner" of the one-third interest therein. In a transaction, the details of which need not be stated, said Paschall sold and conveyed, on June 29, 1923, his right, title, and interest in said machinery, tools, and equipment, to said J. D. Colvin, and in the same instrument of conveyance stipulated:

"It is further agreed that if said Paschall shall, on or before October 15th, 1923, begin operations for marketing of gas from said Laney Well No. 2, or begin operations for the drilling of a well for oil or gas, either in said Laney Well No. 2, or some other location, within a radius of two miles of said Laney Well No. 2 in Erath county, Texas, then said tools and property described in said bill of sale from said Colvin to Paschall * * * shall become the property of said Paschall and full title thereto shall be vested in said Paschall."

A further provision of the contract provided:

"If said Paschall, within the time above specified shall procure a contract with a responsible party to drill a well on another location other than Laney Well No. 2, to a depth of 3,500 feet, unless oil or gas is found in paying quantities at a less depth, said contracting parties contracting to use the gas from said Laney No. 2 and who actually begins the drilling of a well on such location within said time, then said Paschall shall have title to said tools."

In answer to a special issue propounded by the court, the jury found that said Paschall actually began operations for the drilling of Laney Well No. 2 before October 15, 1923. Upon the happening of this event, the title to said tools and machinery vested in the defendant, Paschall, as may be seen from the provisions of the contract quoted. The commencement of operations was a condition precedent upon the performance of which the title to the machinery, etc., vested in said Paschall, as per the terms of the original agreement between him and Colvin. The title to said property thus vested in said Paschall remained so vested until divested out of him by reason of his failure to comply with a further term of the contract, wherein it was provided:

"Failure to prosecute operations hereunder with due diligence, shall forfeit the right granted to said Paschall hereunder."

If the title thus vested in Paschall was never divested out of him under the terms of the contract, then it must be concluded that the bill of sale from himself to Mollie Lee Tomlinson, of date October 4, 1923, conveyed to her a good and sufficient title to the one-third...