Crews v. General Crude Oil Co.
| Decision Date | 19 May 1955 |
| Docket Number | No. 5054,5054 |
| Citation | 287 S.W.2d 243 |
| Parties | Robert F. CREWS et ux., Appellants, v. GENERAL CRUDE OIL COMPANY et al., Appellees. |
| Court | Texas Court of Appeals |
W. G. Walley, Beaumont, for appellants.
Andrews, Kurth, Campbell & Bradley, Houston, James F. Parker, Beaumont, for appellees.
The suit is in trespass to try title to recover interests purportedly conveyed by a mineral lease, the ground of suit being that the land leased was the homestead of the lessors, namely, the plaintiffs, R. F. Crews and wife, C. A. Crews, and that the wife never made any acknowledgment of the lease.
This lease was dated February 11, 1948, and, subject to royalties reserved by lessors, it purportedly conveyed the oil, gas and other minerals in a number of lots, totaling 1.8 acres, in Kountze, in Hardin County, for a primary term of five years and as long thereafter as production of minerals was made under said lease. It was an 'unless' lease, and it provided for annual delay rentals.
The lease was signed by both lessors. The lessee was the defendant S. P. Benckenstein. Subject to a reservation of royalties in his behalf, the defendant Benckenstein assigned this lease to the defendant General Crude Oil Company by an instrument dated February 16, 1948 (the stipulation at S.F. 46 seems in conflict with this paper); and by an instrument dated January 17, 1950, he assigned a part of his reserved royalty to the defendant James F. Parker. The defendant General Crude assigned one-half of its interest to the defendant Shohio Petroleum Corporation by an instrument dated July 27, 1950.
It appears from allegations of the petition that in March, 1952, the defendants General Crude and Sohio began the drilling of a well on one of the lots leased and subsequently completed the well as a producer, and that they have continuously produced minerals from the well since a date in April, 1952.
This suit was filed on February 23, 1954, about twenty-two months after production began. The lessors were the plaintiffs, as we have stated, and the defendants were the lessee and the other three parties named above, claiming under him. The cause was tried to a jury, and in response to the only special issue submitted, the jury returned a finding in behalf of the plaintiff lessors, namely, that the wife did not appear before the notary and acknowledge her execution of the lease. Defendants then moved for judgment non obstante veredicto, and this motion was granted and judgment was rendered in behalf of the defendants jointly, awarding them the interests purportedly conveyed by the lease. That is, the judgment established the validity of the lease as respects all of the land leased, in behalf of all persons claiming under it. From this judgment the plaintiffs have appealed.
Opinion(1) It is not denied that the plaintiffs were married and were maintaining a home together at all times material to the questions to be determined.
(2) No question as to what constituted the plaintiffs' homestead on the date of the lease and since was submitted to the jury; but we think that the evidence shows as a matter of law that at least a part of the land leased, namely, lots 8 and 7 and probably lot 6, of Block 4 of the J. J. Allums 2nd Addition, was homestead on the date of the lease, for this was the site of the residence. Defendants do not contend that plaintiffs ever abandoned the homestead right as to any part of these residential lots except in the minerals, but it does seem clear from all of the circumstances in evidence that the plaintiffs have continuously maintained their home in this residence since the date of this lease. The defendants say that they did so while the well was being drilled, and circumstances show that this was the same residence the plaintiffs had when the lease was made.
The well is not on this part of the land leased. It is 136 feet north of the residence, on lot 3 of said Block 4, and lot 3 is one of a group of four lots (numbered from 1 to 4, inclusive) forming one tract, which face or abut on the same street as do the residence and the three residential lots but which are separated from the three residential lots by a lot 5 which apparently does not belong to the plaintiffs. At least there is no evidence that plaintiffs own it. The dimensions of these various lots were not proved, but Mr. Sawyer's map shows them to be rectangular, and of the same size.
For evidence that the lot on which the well is located was a part of the homestead at the date of the lease (and also that lots leased other than the three residential lots were, too), the plaintiffs must depend on testimony of Mr. Coe and of the plaintiff Mrs. C. A. Crews, but the map and other testimony of Mr. Sawyer, the surveyor, must also be considered. It is not necessary to discuss the testimony of Mrs. Crews. As regards Mr. Coe, he testified on cross-examination that he 'was away during that time,' referring to the year 1948 in which the lease was signed. The statement is general, but it indicates that at least some of Mr. Coe's testimony about the year 1948 was hearsay. This would not be true of his testimony respecting other years. Further, Mr. Coe's testimony is too indefinite and in terms too general to show as a matter of law, if at all, that the homestead extends beyond the three residential lots (Nos. 8, 7 and 6), when it is considered with Mr. Sawyer's map and testimony showing how the property leased was divided into non-contiguous tracts. Mr. Sawyer's map was not questioned and his testimony about the separation and location of the various tracts was not contradicted. The photograph, defendants' exhibit 1, does not show as a matter of law that the site of the well was a part of plaintiffs' yard when it was taken. It must be considered with defendants' exhibit 12, and both photographs taken together indicate that the area near the well is not cared for as a part of the yard and that the lots, Nos. 1 and 2, on the side away from the residence, are not used for any purpose. As regards lot 3, on which the well is situated, and the other three lots which with it form a single tract, namely, lots 1, 2 and 4, it seems to us that the plaintiffs have done no more, if they got that far, than make an issue for the jury, whether this property was a part of the homestead at the date of the lease. It is not necessary for us to determine whether the evidence actually did make this issue, for the question was not submitted to the jury and so was waived.
The lease covered our other lots in said Block 4, which we have not mentioned, namely, lots 9, 11, 13 and 15; but there is no evidence that these were a part of the homestead on the date of the lease, and there is no evidence that any of the other lots leased which are not in said Block 4 were ever a part of the homestead.
(3) Mrs. C. A. Crews testified that she never appeared before the notary whose certificate of acknowledgment is appended to the lease, or before any other notary. She said that the lessee's agent came to her house, procured her signature to the lease, and took the lease away with him, and 'I believe they told me that it was carried up to Mr. Englin's office and fixed up' When she got this information the evidence does not show. The agent, Pipkin, and the notary, Englin, both testified that they went together to Mrs. Crews' house and that she signed the lease there and then acknowledged her execution of the lease to the notary as the law requires.
This testimony made the issue for the jury, whether Mrs. Crews appeared before the notary or not. It was not necessary that Mrs. Crews' testimony be corroborated to make this issue for the jury. Ward v. Weaver, Tex.Com.App., 34 S.W.2d 1093; Robertson v. Vernon, Tex.Com.App., 12 S.W.2d 991; Keller v. Downey, 143 Tex. 171, 183 S.W.2d 426, at pages 428, 429. We are not now concerned with the question, whether the evidence of non-appearance before the notary is sufficient in fact as well as in law, because the judgment was rendered non obstante veredicto; but conclusions stated elsewhere in this opinion show that we do not agree that circumstances support the agent's and the notary's testimony to the extent contended for by the defendants. For the court's duty concerning the sufficiency of evidence, see: In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, and decisions cited therein.
(4) The issue submitted to the jury, with the jury's answer, was as follows: 'Do you find from a preponderance of the evidence that Mrs. Cora A. Crews did not, on the occasion in question, appear before Frederick L. Englin in her home and acknowledge the instrument in question to him?' Answer: 'She did not appear and acknowledge said instrument.'
Defendants make this counterpoint: 'The jury finding that Cora Crews did not appear and acknowledge the lease is not a finding that she did not appear or acknowledge the lease; and, under Rule 279 (Texas Rules of Civil Procedure), a finding that she did appear is presumed in support of the judgment.'
We construe the finding as meaning that Mrs. Crews did not appear before the notary. The issue made by the evidence has been stated and this makes plain the finding of the jury. There was no evidence that Mrs. Crews did appear before the notary but did not acknowledge her execution of the lease, or did not fully acknowledge it, and the trial court obviously was attempting to submit the only issue made by the evidence. Further, special issues considered in Robertson v. Vernon, Tex.Com.App., 12 S.W.2d 991, were in analogous form and were so construed.
(5) There was no evidence that Mrs. C. A. Crews ever ratified the lease so that it became effective. After the lease was made the marriage...
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