Gilmore v. O'Neil

• Decision Date: 03 February 1915
• Docket Number: (No. 2344.)
• Citation: 173 S.W. 203
• Parties: GILMORE et al. v. O'NEIL et al.
• Court: Texas Supreme Court

173 S.W. 203

GILMORE et al. v. O'NEIL et al.

(No. 2344.)

Supreme Court of Texas.

February 3, 1915.

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

Trespass to try title by G. E. Gilmore and others against John O'Neil and another, wherein Lucy Jones and others intervened. A judgment for the defendant O'Neil was reversed by the Court of Civil Appeals (139 S. W. 1162), and such defendant and plaintiff Gilmore and others bring error. Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.

John Charles Harris and Harris & Harris, all of Houston, for plaintiffs in error. Lane, Wolters & Storey, Wm. A. Vinson, and S. H. Brashear, all of Houston, for defendants in error.

PHILLIPS, J.

This suit, brought as an action in trespass to try title by G. E. Gilmore, W. H. Nicholson, D. R. Beatty, and J. R. Cheek against John O'Neil and the Texas Company, is a controversy over about one-third of an acre of ground, and $29,563.85, the proceeds of the oil from an oil well sunk upon the tract by the defendant O'Neil; this amount being in the hands of the Texas Company, whose position in the case is merely that of a stakeholder. The land was originally owned by James Jones, under whom all parties claim as the common source of title, as a part of a 50-acre tract, the community property of himself and his wife, Lucy Jones. Interventions were filed by Lucy Jones and heirs of Thomas Jones, herein denominated for convenience as the Jones heirs, and the J. M. Guffey Petroleum Company, respectively, asserting title to the strip of ground and the proceeds of the oil. In the trial court the case was submitted to a jury on special issues, resulting in a judgment for O'Neil against all other parties. This judgment was reversed by the honorable Court of Civil Appeals; its determination being that O'Neil was not entitled to the land or the fund, but had the right to be reimbursed out of the latter for his expense incurred in the production of the oil — $11,000, the amount found by the jury — that the Guffey Petroleum Company should take nothing, and that the land and the balance of the fund belonged to those showing themselves entitled as heirs or assignees of Thomas Jones and wife, for the ascertainment of whom and their rights the case was remanded. The writ of error was granted by this court upon the respective petitions of Gilmore, the administratrix of Nicholson's estate, Cheek, and Beatty, and of O'Neil.

O'Neil's claim is based upon a sale, made in 1903, by Jones and wife to Nancy Duey of a tract out of the southeast corner of the Jones 50-acre tract, described in the deed executed by Jones and wife at the time, dated September 28, 1903, as:

"One and thirty-five hundredths acres of land out of the S. E. corner of the fifty-acre tract sold to us by John M. Young and wife by deed dated Oct. 22, 1895, and being a part of the John Browne Jones league," etc.

On August 1, 1908, Mrs. Duey conveyed an undivided one-half interest in this tract to Kuhn, executing, on the same date, a power of attorney in his favor, authorizing him to sell or lease her interest. On July 29, 1908, Kuhn, for himself and as attorney in fact for Mrs. Duey, executed an oil lease of the tract to Donahue, who on August 1, 1908, assigned the lease to O'Neil. In the deed and the power of attorney of Mrs. Duey to Kuhn, and in the lease to Donahue, the tract was described as in the deed from Jones and wife to Mrs. Duey. On September 17, 1908, for a recited consideration of $3,500, Mrs. Duey, acting through Kuhn as her attorney in fact, and Kuhn, for himself, executed and delivered to O'Neil a deed describing the tract as "1.662 acres of land," and by metes and bounds so as to constitute in the southeast corner of the Jones 50 acres a rectangular tract 347 feet long and 208.7 feet wide; that is, extending 347 feet east and west, and 208.7 feet north and south, which would include the strip of land in dispute.

According to the findings of the jury, which were in accordance with the contention of O'Neil upon the trial, on a special issue submitted by the court, the actual transaction between Nancy Duey and Jones and wife was the purchase by the former of $100 worth of land out of the southeast corner of the 50-acre tract at the price of $60 per acre, or 1 2/3 acres, and, by mutual mistake in the preparation and execution of the deed, the quantity of land sold and conveyed was therein described as 1.35 acres, when it should have been described as 1 2/3 acres. The jury further found that, after his conveyance to Nancy Duey, James Jones caused the 1 2/3-acre tract, claimed by O'Neil, to be surveyed and set apart as the tract sold and conveyed to Nancy Duey by himself and wife, and at all times thereafter to the time of his death recognized and treated it as such. It appears that the Jones heirs never asserted to the contrary until shortly before the institution of the suit.

On May 20, 1905, Jones and wife conveyed to the National Oil & Development Company, out of the 50-acre tract, 15 acres; the deed having been duly filed for record on May 22, 1905. The calls in this deed refer to the land theretofore conveyed by Jones and wife to Nancy Duey as "Mrs. Duey's one and two-thirds acre tract." One of the boundary lines of the 15 acres conveyed is given in the deed as the entire north line of the Duey tract, and another as the entire west line of the latter tract, which by the deed are revealed as being respectively 347 feet and 208.7 feet in length. In other words, the 15 acres is described in this deed as entirely bounding the Duey tract on the north and west, and the calls in the deed reveal the Duey tract to be rectangular in form, 347 feet long, to the east and west, and 208.7 feet wide, to the north and south. The J. M. Guffey Petroleum Company's claim is under this deed.

Prior to the execution of the conveyance to Nancy Duey, Jones and his wife had sold to Barrett a tract of three acres; and it appears that there had also been sold out of the 50 acres another small tract, to Dunnam, stated in the opinion of the Court of Civil Appeals to consist of about one-half of an acre. Counting the Duey tract as 1.35 acres after the conveyance of the 15 acres to the National Oil & Development Company on May 20, 1905, there remained unsold, of the 50-acre tract, 30.15 acres. Counting the Duey tract as 1 2/3 acres, the remainder of the 50-acre tract amounted to 29 5/6 acres.

The basis of the claim of Gilmore, Nicholson, Beatty, and Cheek, the plaintiffs in the suit, was an oil lease executed by Mrs. Lucy A. Jones on January 8, 1908, after the death of her husband James Jones, in 1906, to Beatty and Cheek, which described the land so leased as "thirty acres of land out of the John Brown Jones one-third league, said thirty acres being all of my remaining interest in the James Jones fifty-acre tract out of the said Jones league, said land being north of the Butler subdivision and south of the Bissonet tract in said one-third league"; and a renewal of that lease by Mrs. Jones and others, heirs of James Jones, dated May 6, 1908, in favor of Beatty and Cheek, describing the land as "thirty acres of land out of the John Brown Jones one-third league in Harris county, Texas, same being the unsold portion of the James Jones fifty-acre tract, and lying north of the Butler subdivision and south of the Bissonet tract in said one-third league." This lease was assigned to Gilmore and Nicholson by Beatty and Cheek on July 16, 1908.

If the Duey tract is reckoned as consisting of 1.35 acres, and as laid out in the form of a rectangle, 208.7 feet wide, north to south, the strip in dispute, which extends 66.1 feet east and west and 208.7 feet north and south, would not be included within its lines. If that tract be counted as containing 1 2/3 acres, and is laid out in the form of a square, the strip would likewise lie without its boundaries. As has been already noted, if the Duey tract consists of 1 2/3 acres, laid out in rectangular form, 347 feet east and west, and 208.7 feet north and south, as claimed by O'Neil, and as the jury found was recognized and treated by Jones to time of his death as constituting the tract sold by himself and wife to Nancy Duey, it would include the strip in controversy.

The position of Gilmore, Nicholson's administratrix, Beatty, and Cheek is that the sold portions of the 50-acre tract at the time of the execution of the leases under which they claim were the Barrett 3-acre tract, the Dunnam one-half acre tract, the Duey 1.35-acre tract, and the National Oil & Development Company 15-acre tract (the deeds to none of which included or conveyed the strip in dispute); that accordingly it, at that time, constituted a part of "the remaining interest" in, or "unsold portion" of, the original tract, and the descriptions of the land embraced in their leases, namely, "thirty acres of land out of the John Brown Jones one-third league, said thirty acres being all of my remaining interest in the James Jones fifty-acre tract out of the said Jones...