Ehlinger v. Clark

• Citation: 284 S.W. 974
• Decision Date: 15 April 1926
• Docket Number: (No. 8750.)
• Parties: EHLINGER, County Judge, et al. v. CLARK.
• Court: Court of Appeals of Texas

284 S.W. 974

EHLINGER, County Judge, et al. v. CLARK.

(No. 8750.)

Court of Civil Appeals of Texas. Galveston.

April 15, 1926.

Rehearing Denied May 13, 1926.

Error from District Court, Fayette County; M. C. Jeffery, Judge.

Suit by John P. Ehlinger, County Judge, and others against I. E. Clark. Judgment for defendant, and plaintiffs bring error. Affirmed.

John P. Ehlinger, of La Grange, for plaintiffs in error.

H. R. Clark, of La Grange, and H. W. Wallace, of Cuero, for defendant in error.

PLEASANTS, C. J.

This suit was brought by plaintiffs in error against the defendant in error to recover the amount due upon two notes for the sum of $2,000 each, executed by the defendant in favor of plaintiff Ehlinger, county judge of Fayette county.

The answer of defendant contains exceptions to plaintiffs' petition, on the ground that it shows upon its face the lease contract, in consideration of which the notes sued on were executed, was illegal and void, and therefore said notes were without consideration and their payment unenforceable. These exceptions are followed by the following special plea:

"Defendant shows that he made and entered into said transaction in good faith, believing that said transaction was legal and valid, and that the oil and gas lease so executed to him was authorized by law, and that by it he was vested with the rights and interests expressed in said lease, and that said transaction would result to the material advantage and benefit of the permanent school fund of Fayette county as well as to this defendant. But subsequently this defendant was advised, and he now upon information and belief charges and alleges the fact to be, that the commissioners' court of Fayette county, Tex., was and is forbidden by law to make and enter into said contracts and agreement, and to execute and deliver said oil and gas lease, and had and has no authority or legal power to make, execute, and deliver said oil and gas lease, or to authorize the same to be done by the county judge or any one else, and that same were and are illegal and totally void, and were ineffectual to pass and did not pass any such right or interest in or in regard to the oil and gas in said land as are described in said lease and attempted therein to be leased or conveyed to defendant.

"Defendant alleges, upon his own knowledge, that there was no other consideration of any sort whatever for the execution and delivery by this defendant to Fayette county of the notes, or either of them, described in plaintiffs' petition, than the said oil and gas lease hereto attached and marked as an exhibit, and defendant alleges that said lease was and is utterly worthless and of no value to defendant. Defendant has heretofore offered and does now offer to cancel all of said lease and contract, and has frequently demanded of Fayette county that it cancel and return to him both the promissory notes described in plaintiffs' petition.

"Wherefore defendant says that there was not and has never been any consideration whatever for the two notes which are sued upon in this cause, and that all pretended or apparent consideration therefor was and is totally null and void, and defendant has received nothing for said notes, or either of them, and the consideration shown or recited in said lease, contracts, and documents for said notes wholly failed, and this he is ready to verify."

The trial in the court below without a jury resulted in a judgment in favor of defendant.

The oil lease contract, in consideration of which the notes sued on were executed, is evidenced by written instruments containing many stipulations and agreements which are not material to the question presented by this appeal and need not be set out in detail.

The instrument leases to appellee, for a consideration of $5 cash and the two notes for $2,000 described in plaintiffs' petition, 4,000 acres of school lands of Fayette county, situated in Baylor county, for the purpose of mining and operating for oil and gas. The lease is for a term of five years, and as long thereafter as active drilling operations are carried on by the lessee, or oil or gas is produced from the land by the lessee. The lessee agrees to deliver to the lessor one-eighth of all the oil produced from the land, and to pay an agreed price for the gas that he might produce therefrom not used in carrying on the drilling operations on the property.

Drilling operations were to begin in one year, but might be deferred from year to year during the five-year period of the lease by the payment by the lessee, in advance, of the sum of $200. The lessee is also given the right to transfer the lease or to sublease the land or any part thereof, and agrees to pay to the county a portion of the bonus or royalty he might receive from such assignment or sublease.

We think the trial court correctly held that the commissioners' court was not authorized to make the lease because it was in effect a conveyance of an interest in the school lands of Fayette county for a consideration which in part was not money, and because it gives the lessee the right to sell and dispose of the oil and gas in said lands upon such terms as he might deem proper, thus in substance and effect delegating to the lessee an authority and discretion in the disposition of the county school lands which the law vests in the commissioners' court, and which is nondelegable.

The contract of lease gives the appellee the right to take the oil from the school lands of Fayette county for a consideration of one-eighth of such oil to be...