Condra v. Grogan Mfg. Co., 4625

• Decision Date: 22 December 1949
• Docket Number: No. 4625,4625
• Citation: 228 S.W.2d 588
• Parties: CONDRA et al. v. GROGAN MFG. CO. et al.
• Court: Texas Court of Appeals

Page 588

228 S.W.2d 588

CONDRA et al. v. GROGAN MFG. CO. et al.

No. 4625.

Court of Civil Appeals of Texas.

Dec. 22, 1949.

Rehearings Denied April 5, 1950.

Lane & Anderson, Center, for Condra et al.

Vinson, Elkins, Weems & Francis, Houston, for Grogan et al.

R. L. MURRAY, Justice.

Robert G. Condra and wife, Inez Condra, Pink E. Condra and wife, Bobbie Condra, Edris Lightner and husband, L. B. Lightner, Idinea Sirles and husband, Nolan Sirles, and Charles H. Condra, plaintiffs in the trial court, brought this suit, in the form of trespass to try title, seeking to recover title and possession of 49.5 acres of land situated in Liberty County, Texas, a part of the Daniel Donaho League, or else to establish as an alternative, their ownership of larger undivided interests therein than they were conceded to own. They also sought an accounting for oil and gas produced and sold from said land, and to recover from the producers and purchasers the one-eighth (1/8th) royalty alleged to be due thereon. Grogan Manufacturing Company, Shell Oil Company, Inc., Republic National Bank of Dallas, Second National Bank of Houston, Citizens State Bank of Houston, R. J. McBean, H. M. Seydler, A. V. Pace, Homer E. Henderson, Clarence A. Davenport, A. Davenport, Flores Davenport Hobbs and husband, J. E. Hobbs, Mrs. Ethel Janet Boyle and husband W. Stewart Boyle, George P. Mitchell, Joe Lundin, Morris Rauch, Harry Pulaski, Louis Pulaski and Floyd L. Karsten were all named as defendants. Excepting Grogan Manufacturing Company, Clarence A. Davenport, A. Davenport, and Flores Davenport Hobbs and husband, J. E. Hobbs, the various defendants were made parties because they were thought either to own or to claim interests in the leasehold estate or estate created by oil and gas leases covering the land in controversy, or else because they were alleged to have produced or purchased oil and gas from said land.

The plaintiffs specially plead their title, and, in addition to pleading facts which showed that they had jointly inherited an undivided 11/60 interest in a 239.5 acre tract of land that included the 49.5 acres sued for, they plead an oral partition of the larger tract, partition of the larger tract by estoppel as against Grogan Manufacturing Company, and that they had perfected title to the 49.5 acres under the tenyear statute of limitation. Vernon's Ann.Civ.St. art. 5510. As a basis for their alternative claim, they sought to show inheritance through a bachelor uncle, Willie Lee Smith, who was a non compos mentis, and who died intestate, alleging and undertaking to prove that a purported guardian's deed which ostensibly conveyed the interest of said uncle in the land to Grogan Manufacturing Company was void because the person who purported to act as guardian and to make said guardian's deed had never been legally appointed guardian of the estate of the said Willie Lee Smith, had never qualified or attempted to qualify as such, and had never made application for authority to sell the interest of the said Willie Lee Smith in said land. Plaintiffs admitted that prior to instituting this suit they had themselves executed and delivered oil and gas leases which covered and included the land in question, that such leases are still valid and subsisting leases, and that these leases and the leasehold estates thereby created are not owned by some of the defendants.

With the exception of Republic National Bank of Dallas and R. J. McBean, both of whom filed disclaimers, all of the defendants answered by both pleas of not guilty and general denials. Grogan Manufacturing Company, together with some of the other defendants, plead, in addition, laches and stale demand, estoppel, that they were innocent purchasers for value without notice of plaintiffs' claims, and that plaintiffs' cause of action was barred by the statutes of limitation of two, three, four, five, and ten years. Vernon's Ann.Civ.St. arts. 5507, 5509, 5510, 5526, 5527. Some of those who claimed interests in the oil and gas in and under the land also plead that since all persons claiming to own an interest in the land, both plaintiffs and defendants, had executed and delivered to them or to their predecessors in title oil and gas leases by which the lessors purported to lease to the lessees either the whole of the 239.5 acre tract of which the 49.5 acres in controversy was unquestionably at one time a part, or their entire interests in said 239.5 acre tract that 239.5 acres had been pooled or unitized for gas production purposes, and that by exeucting and delivering such leases, together with certain division orders regarding delay rentals the plaintiffs had estopped themselves from claiming the full one-eighth (1/8) royalty due on the oil and gas produced and purchased from the well situated on the 49.5 acres.

The trial was commenced before a jury, which the plaintiffs had demanded, but after the plaintiffs had rested their case, motions by defendants for an instructed verdict had been overruled, and the defendants had introduced a portion of their evidence, the Court, on motions of the defendants and over plaintiffs' objections, withdraw the case from the jury, discharged the jury, and thereafterwards rendered judgment without the benefit of jury fact findings. All parties to the suit had previously agreed that the question of the validity of the guardian's deed purported to have been made on behalf of Willie Lee Smith, as well as that of the amount of royalty due on oil and gas produced from the land, should be left to the determination of the Court.

Judgment was rendered that the defendants Republic National Bank of Dallas and R. J. McBean be discharged on their disclaimers, that plaintiffs jointly recover of the remaining defendants an undivided 55/240 interest in and to the 49.5 acres of land in controversy (a part of which interest was held to have been inherited by plaintiffs from Willie Lee Smith, the Court having held that the purported guardian's deed void), subject to specified oil and gas leases, and that the plaintiffs jointly recover of the defendants Morris Rauch, Harry Pulaski, Louis Pulaski and Floyd L. Karsten the sum of $4,290.75, and of Shell Oil Company, Incorporated, the sum of $380.93.

Both the plaintiffs and the defendants, with the exception of Republic National Bank of Dallas and R. J. McBean, seasonably excepted to the judgment, gave notice of appeal, and have perfected their appeals as provided by law.

Since all parties have appealed, they will be hereinafter designated as in the trial court.

Plaintiffs sued for title and possession of a 49.5 acre tract, described by metes and bounds, out of the East end of a larger tract, called in prior title papers to contain 207 acres, but which actually contains either 236.5 acres or 239.5 acres; or, in the alternative, to recover an undivided interest in the 207 acre tract greater than that which defendants conceded plaintiffs owned.

Plaintiffs claim as the children of Harriet Elizabeth Smith Condra, who was a daughter of Dan A. Smith and Nan E. Smith. For the purposes of this appeal, said Dan and Nan Smith are to be treated and considered as the record owners of the 207 acre tract at the time of their deaths. Dan and Nan Smith had six children. Defendant Grogan Manufacturing Company claims under deeds from three of such children and under deed from the guardian of one of such children, each of which purported on its face to convey a 'certain undivided 1/5th interest in and to 207 acres' of land, in two tracts, out of the D. Donaho League.

The Hobbs defendants claim an interest in the property under their mother, Jessie Smith Davenport, who such Hobbs defendants claim took an interest in the property as an heir of a child of W. J. Smith, one of the children of Dan and Nan Smith.

Plaintiffs plead title to, and claimed the 49.5 acre tract by an alleged oral partition of the larger tract, and also assert title to said 49.5 acre tract under the ten year statute of limitations, and partition of the larger tract by estoppel as against defendant Grogan. Defendant Grogan claims that it purchased and obtained the undivided interests of its grantors in the entire 207 acre tract (now known to contain 236.5 acres or 239.5 acres); that there has not been any partition of the property; that if there was an oral partition, Grogan had no notice of such partition; that if there was any such partition between some of the owners of undivided interests in the 207 acre tract, all of the owners of the tract did not join in such a partition and such partition is not binding upon any of the owners of the tract; that the plaintiffs, the children of one of the owners of the 207 acre tract, never had or held any designated, specified tract adverse to the other owners of the 207 acre tract; and that, if the Condras did ever attempt to hold any such designated, specified tract, no notice of such adverse claim was ever given Grogan.

Defendant Grogan further contends that it holds the interest of Willie Lee Smith, non compos mentis, and one of the children of Dan and Nan Smith, by and under a deed from the guardian of said Willie Lee Smith; that if it be correct in this contention, then plaintiffs are the owners of only a 44/240 interest. Plaintiffs further contend that Grogan did not secure the interest of the non compos mentis under the guardian's deed. If plaintiffs be correct, then they are the owners of a 55/240 interest in the property, it is contended by defendant Grogan.

The interests of the plaintiffs, the defendant Grogan Manufacturing Company and the Hobbs defendants are subject to oil, gas and mineral leases of the defendants Floyd L. Karsten, Shell Oil Company, Inc., and those defendants holding under such leases.

The trial court found that the plaintiffs had failed to make a case of partition or title by adverse possession or by estoppel and took that part of the case away from the jury. By agreement of the...