Empire Gas & Fuel Co. v. Albright

• Decision Date: 04 December 1935
• Docket Number: No. 1573-6702.,1573-6702.
• Citation: 87 S.W.2d 1092
• Parties: EMPIRE GAS & FUEL CO. et al. v. ALBRIGHT et al.
• Court: Texas Supreme Court

87 S.W.2d 1092

EMPIRE GAS & FUEL CO. et al. v. ALBRIGHT et al.

No. 1573-6702.

Commission of Appeals of Texas, Section B.

December 4, 1935.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by Mrs. Annie Albright and others against W. E. Collins and others. To review a judgment of the Court of Civil Appeals [Albright v. Collins, 64 S.W.(2d) 1096], affirming in part and reversing in part a judgment for defendants, defendant Empire Gas & Fuel Company and others bring error.

Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed.

James W. Finley, Hayes McCoy, and H. J. Patterson, all of Bartlesville, Okl., Cecil N. Cook, of Houston, Phillips, Trammell, Chizum, Estes & Edwards and Clayton L. Orn, all of Fort Worth, Andrews,

Streetman, Logue & Mobley and E. J. Fountain, Jr., all of Houston, T. B. Stinchcomb, W. H. Sanford, Saye, Smead & Saye, Bramlette & Meredith, and Edwin Lacy, all of Longview, Sam B. Hall, of Marshall, Ramey, Calhoun & Marsh, of Tyler, Thompson, Mitchell, Thompson & Young, W. K. Koerner, and P. G. McElwee, all of St. Louis, Mo., Hart Willis, of Houston, S. R. Arledge, Turner, Rodgers & Winn, and J. W. Timmins, all of Dallas, W. C. Hurst and J. T. Casey, both of Longview, and Vinson, Elkins, Sweeton & Weems, of Houston, for plaintiffs in error.

S. W. Marshall, of Dallas, and S. P. Jones, Franklin Jones, Hobart Key, and Barret Gibson, all of Marshall, for defendant in error.

RYAN, Commissioner.

Mrs. Annie Albright, her four children, as owners, with four certain other parties who claim under an oil and gas lease thereon, on June 15, 1931, brought this suit against W. E. Collins, W. C. Hurst, J. W. Akin and wife, and certain other parties, including several oil, gas, and pipe line companies, for the recovery of that portion of the Wm. H. Castleberry survey in Gregg county described as follows: Beginning at S. E. corner of a 47½-acre tract belonging to Marguerite Albright et al., same being 254 varas E. from the Castleberry S. W. corner; thence E. with the Castleberry south boundary line 5,913 feet to the S. E. corner of a 447½-acre tract; thence N. 3,453 feet to the southeast corner of the P. S. Harris tract in the Castleberry survey; thence S. 86 W. 5,956 feet to the N. E. corner of a 47½-acre tract, stake for corner; thence S. 1/2 E. 2,970 feet to the place of beginning—alleged to contain 447.5 acres of land, more or less.

By subsequent counts in the petition, plaintiffs sought in equity to set aside and have declared as void two certain judgments rendered against Mrs. Annie Albright and a sale under execution under one of the judgments, as a cloud upon title.

Judgment was rendered for the defendants upon special issues, which judgment was reversed by the Court of Civil Appeals, decreeing that plaintiffs take nothing as to approximately 400 acres in rectangular form 2,146 varas east and west and 1,052 varas north and south, but that plaintiffs recover the excess over said 400 acres, identified as a triangular tract lying north of a line running east and west 1,052 varas from and parallel with the south line of said tract, containing approximately 38 acres. Albright v. Collins, 64 S.W.(2d) 1096.

The Albright title originated in a conveyance from G. B. Turner and J. N. Campbell, to John Albright and T. A. Albright, dated November 5, 1907, the description being as follows: A part of the Wm. H. Castleberry survey, known as lot No. 2 of said survey, and beginning at P. S. Harris S. E. corner; thence W. with his S. line at 2,400 varas his S. W. corner, a stake on W. line of Castleberry league, from which a post oak bears N. 68 W. 9.4 varas, a maple S. 27 W. 5.4 varas; thence S. with said line at 1,052 varas the S. W. corner of said league; thence E. with S. line of same at 2,400 varas a stake on the S. W. corner of Bumpus tract from which a small pine bears N. 45 E. 2 varas; thence N. with W. line of said Bumpus tract to the beginning—containing 447½ acres of land.

T. A. Albright died on August 2, 1917. His widow, Mrs. Annie Albright, qualified as administratrix of the estate and sued John Albright and his children by a deceased wife, in the district court of Harrison county, for partition of the several tracts of land acquired by John and T. A. Albright. The so-called 447½-acre tract was awarded to Mrs. Annie Albright, as administratrix of her husband's estate, for and in behalf of said estate.

By deed dated February 21, 1918, R. A. Albright, a child, conveyed his interest in the property to his mother, Mrs. Annie Albright, thus placing in her (her community interest of one-half, plus his one-fifth of the father's community interest of one-half) a six-tenths interest.

On December 29, 1919, the district court of Gregg county approved report of commissioners in a partition suit between Mrs. Annie Albright and her four remaining children, which awarded to said children 47½ acres off of the west end of said tract, the lines to be run that the width shall be uniform, and awarded to Mrs. Annie Albright "the east 400 acres of said tract, described as follows: Beginning at S. E. corner of 47½-acre tract belonging to Marguerite Albright et al., same being 254 varas east from the Wm. Castleberry S. W. corner, thence E. with Castleberry South boundary line 2146 varas to the S. E. corner of a 447½-acre tract; thence N. 1,052 varas to stake for corner; thence W. 2146 varas to the N. E. corner of 47½-acre tract, stake for corner; thence S. 1,052 varas to the place of beginning—containing 400 acres."

The report of the commissioners in partition shows that they were dividing the entire tract, the beginning call of which is designated "the P. S. Harris S. E. corner," originally known as a 447½-acre tract, and when they awarded the 47½ acres to Mrs. Albright's children and the remaining east 400 acres to her, they intended to partition the entire tract and vest title in Mrs. Albright to what remained of the entire tract after segregating the 47½ acres awarded to the children. McCardell v. Lea, 111 Tex. 380, 235 S.W. 518; Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.(2d) 1080, 85 A.L. R. 391; Bearden v. Schenecker (Tex.Civ. App.) 240 S.W. 996.

A better understanding of issues in this case may be had from the annexed plat: default in the district court of Harrison county, against Mrs. Annie Albright, an assignment of which to W. E. Collins was filed among the papers in the case, on May 27, 1921, and an abstract thereof recorded (and indexed) in the judgment records of Harrison county on April 15, 1922.

For an unsatisfied balance due on said judgment, the constable of precinct No. 1, Gregg county, levied on, and on January 2, 1923, sold to W. E. Collins for a recited consideration of $280, all the estate, title, and interest and claim of the said Mrs. Annie Albright, a widow, in and to the following described premises, viz.:

Part of the W. H. Castleberry H. R. survey;

Beginning at the S. E. corner of 47½-acre tract, belonging to Marguerite Albright et al., same being 254 varas E. from the Wm. Castleberry S. W. corner;

Thence E. with Castleberry S. B. line

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The land awarded to Mrs. Albright's children is shown between the points A B E X, and that awarded to Mrs. Albright between the points B C D E; the latter at that time supposed to contain 400 acres, but now ascertained to contain in fact about 436 acres.

Point D designates the P. S. Harris S. E. corner.

On December 11, 1920, the Sanders-Overland Company recovered judgment by 2,146 varas to the S. E. corner of a 447½-acre tract of land;

Thence N. 1,052 varas to stake for corner;

Thence W. 2,146 varas to N. E. corner of the 47½-acre tract, stake for corner;

Thence S. 1052 varas to the place of beginning—containing 400 acres of land.

No reference is made to the P. S. Harris tract or its S. E. corner, or to any other deed or instrument of conveyance, in aid of the description.

Under an agreement with Mrs. Albright, Judge W. C. Hurst purchased the property from W. E. Collins, and by written instrument dated March 6, 1923, addressed to her, obligated himself to convey the property to her, if on or before November 15, 1923, she should pay him as much as $2,000 cash and give notes at 10 per cent. interest for the balance due allowing him a profit of $500; the property being the same recently purchased from Collins, being the 400 acres of the W. H. Castleberry survey.

Previously, on March 8, 1920, Mrs. Albright had executed a deed of trust to secure the Federal Land Bank of Houston on a loan of $4,000 and interest.

Mrs. Albright was unable to pay for the entire tract, and finally at her instance Judge Hurst by deed dated December 24, 1923, conveyed to her 100 acres out of the southeast corner. This deed recites a consideration of $3,000, of which $200 was in cash, one note for $300 due in 30 days, four notes for $325 each, due one, two, three, and four years from date, and assumption by grantee of $1,200 of loan No. 13216 due the Federal Land Bank of Houston.

The 100-acre tract is described in said deed as follows: "A part of the Wm. H. Castleberry H. R. survey, beginning at the S. W. corner of the John Bumpus tract; thence west 1,073 varas with the Wm. Castleberry south boundary line to triple gum for corner; thence north 526 varas sweet gum 12 in. dia. brs. S. 45 E. 8 varas, pine 5 in. brs. N. 10 E. 1 vara; thence east 1073 varas to point in Bumpus west line, post oak 2 ft. diameter brs. N. 60 W. 5 varas, pine S. 35 E. 2 varas for corner; thence south 526 varas with Bumpus west line to the place of beginning— containing 100 acres of land."

Mrs. Albright desired to sell certain other property, but the judgment having been abstracted, it was required that she obtain release of the judgment lien, and accordingly W. E. Collins on March 19, 1923, released unto her the said judgment and all judgment liens that may exist...