Drummond v. Benson

• Decision Date: 04 October 1939
• Docket Number: No. 10519.,10519.
• Citation: 133 S.W.2d 154
• Parties: DRUMMOND et al. v. BENSON et al.
• Court: Texas Court of Appeals

133 S.W.2d 154

DRUMMOND et al. v. BENSON et al.

No. 10519.

Court of Civil Appeals of Texas. San Antonio.

October 4, 1939.

Rehearing Denied November 15, 1939.

Appeal from District Court, Duval County; L. Broeter, Judge.

Action by Amy Benson, as next friend of her minor child, joined by her four other children and her deceased husband's four brothers, against James Newton Drummond and others, to recover certain land. From judgment for Amy Benson and her children, the defendants appeal.

Reversed and rendered.

Swearingen & Miller and John J. Cox, all of San Antonio, Perkins & Floyd, of Alice, and Spafford & Spafford, of Dallas, for appellants.

John T. Spann, of Crystal City, and D. A. McAskill, Ball, Seeligson & Trueheart, and Morriss & Morriss, all of San Antonio, for appellees.

SLATTON, Justice.

Amy Benson, as next friend of her minor child, joined by her four other children and her deceased husband's four brothers, brought this suit against James Newton Drummond, et al., to recover certain lands situated in Duval County, Texas. Drummond and his coparties moved to amend the judgment rendered by the District Court of Duval County in the year 1928. After notice and hearing the court entered the amendment "nunc pro tunc." Amy Benson and her coparties attacked the judgment as amended. The ground of attack of Amy Benson and her children against the amended judgment was that they did not authorize the institution and prosecution of the suit in which the amended judgment was rendered.

The theories of recovery were upon an alleged common law marriage between C. O. Drummond and Mary Benson, and that the Benson boys were the sole heirs of said C. O. Drummond and Mary Benson, both deceased, and a parol trust under which C. O. Drummond held title for the Bensons. The trial court directed a verdict against four of the Bensons; viz., Zachariah, Otto, Alvin and Joseph. Evidently upon the ground that the amended judgment was a bar to a recovery in their behalf.

The cause between the remaining parties was submitted to the jury in the form of special issues. The jury found the following:

Amy Benson did not authorize anyone to enter her appearance as an individual in suit No. 3178, styled Amye Benson et al. vs. E. H. Drummond et al., in the District Court of Duval County, Texas.

Amy Benson did not authorize anyone to enter her appearance as next friend of the minor children, Charles O. Benson, T. W. Benson. Idabel Evans (nee Benson) and Elizabeth Broxton (nee Benson) in suit No. 3178, styled Amye Benson et al. vs. E. H. Drummond et al., in the District Court of Duval County, Texas.

Amy Benson did not have notice of the filing of Cause No. 3178 at the time thereof or within six months after June 18, 1928.

Nell Benson Baker is the daughter of Tom Benson, deceased, and Amy Benson.

After the death of Katherine Tennessee Drummond, C. O. Drummond and Mary Benson entered into a mutual agreement to live together as husband and wife.

Pursuant to such agreement C. O. Drummond and Mary Benson thereafter lived and cohabited together as husband and wife.

Pursuant to such agreement C. O. Drummond and Mary Benson held each other out thereafter to the public generally as husband and wife.

Part of the money with which C. O. Drummond acquired land belonged to Tom Benson.

All of the land involved in this case was so acquired by C. O. Drummond.

One-third of the land involved in this case was acquired with money belonging to Tom Benson.

Part of the money with which C. O. Drummond acquired land belonged to Mary E. Benson.

All the land involved in this case was so acquired by C. O. Drummond.

One-third of the land involved in this case was acquired with money belonging to Mary E. Benson.

C. O. Drummond agreed with Mary E. (Betty) Benson, Tom Benson, Zachariah Benson, Otto Benson, Alvin Benson and/or Joseph Benson, or either of them, that the said Mary E. Benson and her sons should labor and furnish money to be turned over to and used by C. O. Drummond in the purchase of land in his name and held by him during his natural life for the benefit of Mary E. Benson and her sons.

Mary E. Benson and her sons complied with their part of said agreement.

All the land involved in this case was acquired by C. O. Drummond in pursuance of said agreement.

The defendants H. H. Henderson, W. W. Harvey, Reliance Oil & Royalty Corporation, Foster Petroleum Corporation, Foster Minerals Corporation, The Alamo National Bank of San Antonio, Texas, Sid Katz, A. H. Richardson, J. H. Reynolds and Mrs. J. H. Reynolds, or either of them, at the time of their, or either of their purchase of their respective oil and gas leases and oil and gas royalties in the land in controversy, had notice of the existence of such agreement.

All of the defendants involved in this case had such notice.

Defendants H. H. Henderson, W. W. Harvey, Reliance Oil & Royalty Corporation, Foster Petroleum Corporation, Foster Minerals Corporation, The Alamo National Bank of San Antonio, Texas, Sid Katz, A. H. Richardson, J. H. Reynolds and Mrs. J. H. Reynolds, or either of them, at the time of their, or either of their purchase of their respective oil and gas leases and oil and gas royalties in the land in controversy had notice that such lands had been bought by C. O. Drummond with money earned by Tom Benson.

All the defendants involved in this case had such notice.

The defendants H. H. Henderson, W. W. Harvey, Reliance Oil & Royalty Corporation, Foster Petroleum Corporation, Foster Minerals Corporation, The Alamo National Bank of San Antonio, Texas, Sid Katz, A. H. Richardson, J. H. Reynolds and Mrs. J. H. Reynolds, or either of them, at the time of their, or either of their purchase of their respective oil and gas leases and oil and gas royalties in the land in controversy had notice that such lands had been bought by C. O. Drummond with money belonging to Mary E. Benson.

All the defendants involved in this case had such notice.

The defendants H. H. Henderson, W. W. Harvey, Reliance Oil & Royalty Corporation, Foster Petroleum Corporation, Foster Minerals Corporation, The Alamo National Bank of San Antonio, Texas, Sid Katz, A. H. Richardson, J. H. Reynolds and Mrs. J. H. Reynolds, or either of them, at the time of their, or either of their purchase of their respective oil and gas leases and oil and gas royalties in the land in controversy had notice that Amy Benson did not authorize any one to enter her appearance as an individual in said suit No. 3178.

All the defendants involved in this case had such notice.

The defendants H. H. Henderson, W. W. Harvey, Reliance Oil & Royalty Corporation, Foster Petroleum Corporation, Foster Minerals Corporation, The Alamo National Bank of San Antonio, Texas, Sid Katz, A. H. Richardson, J. H. Reynolds and Mrs. J. H. Reynolds, or either of them, at the time of their, or either of their purchase of their respective oil and gas leases and oil and gas royalties in the land in controversy had notice that Amy Benson did not authorize anyone to enter her appearance as next friend of the minor children Charles O. Benson, T. W. Benson, Idabel Evans (nee Benson) and Elizabeth Broxton (nee Benson) in suit No. 3178.

All the defendants involved in this case had such notice.

The defendants H. H. Henderson, W. W. Harvey, Reliance Oil Corporation, and the Alamo National Bank at the time they erected the improvements upon the land in controversy and drilled the wells thereon and equipped the property for oil production and in producing oil therefrom did so in good faith under an honest and reasonable belief that their title to the mineral leasehold estate in said land was superior to the claim of title, if any, made by the plaintiffs.

The trial court rendered judgment in favor of Amy Benson and her children for the title to an undivided one-fifth interest in and to the land in suit and for the value of one-fifth of the oil produced in excess of the cost of production.

The aggrieved parties have appealed.

The appellants contend that the evidence does not show a common law marriage between C. O. Drummond and Mary Benson. That the parol trust alleged is illegal and unenforceable, in that it is contrary to public policy.

Our discussion will be limited to the contentions stated, because we consider them controlling on this appeal.

C. O. Drummond, the common source of title, was born January 11, 1840. He married Katherine Tennessee Drummond October 9, 1873. The family moved to the Loma Alta community, along the line between Duval and McMullen Counties, in the year 1887. The Drummonds moved to the community in a farm wagon and brought with them a milk cow and some goats. Mary Benson, a niece of Mrs. Drummond, and her four boys accompanied the Drummonds to the community and lived with them for about one year. Thereafter they moved to a farm north of San Diego which was rented for about two years. Thereafter C. O. Drummond bought a 240 acre tract of land, about ten miles north of San Diego, and he and his wife and Mary Benson and her boys moved and lived together for three or four years, in a small frame house, until about 1894 or 1895. About that time Mary Benson and her four sons, whose ages were then 18, 15, 12 and 7 years, moved away from C. O. Drummond and his wife and leased a part of the public land in the Loma Alta Community, on which they built a frame house and dug two wells.

In 1898 or 1899 Mary Benson and her four boys took another lease from the State of Texas and moved upon the land, after which time C. O. Drummond and wife moved on the place that Mary and her boys had previously occupied.

While Mary Benson and her boys were living on the last lease another son was born to her. In 1903 and 1904 Tom Benson, Zachariah Benson and Otto Benson made the down payment and obligated themselves for the remainder of the purchase price to the State, as settlers, on the land where Mary Benson and her five boys lived.

In 1906 Tom Benson, the oldest...