Gulf Production Co. v. Palmer

Decision Date22 April 1921
Docket Number(No. 573.)
Citation230 S.W. 1017
PartiesGULF PRODUCTION CO. et al. v. PALMER et ux.
CourtTexas Court of Appeals

Appeal from District Court, Liberty County; J. L. Manry, Judge.

Action by L. P. Palmer and wife against the Gulf Production Company and others. Judgment for plaintiffs, and the defendant Company and some of the other defendants appeal. Reversed, and judgment rendered for the appellants.

Jno. E. Green, G. W. Tharp, and T. J. Lawhon, all of Houston, J. Llewellyn and Dan Harrison, both of Liberty, and Orgain & Carroll, of Beaumont, for appellants.

E. B. Pickett, Jr., of Liberty, and Jno. C. Townes, Jr., E. E. Townes, and Hugh F. Montgomery, all of Houston, for appellees.


This suit involves 20 acres of the Chas. Underton survey in Liberty county. L. P. Palmer and wife were the plaintiffs. The other appellees and all the appellants were defendants. On the 22d day of July, 1885, one J. J. Moore conveyed to plaintiff Palmer 60 acres of land, part on the Chas. Underton, and the balance on the Jesse Devore, which lies immediately south of the Underton. On February 1, 1894, Moore conveyed to W. S. Swilley all the Underton survey "less 20 acres heretofore conveyed to L. P. Palmer by myself." This deed was filed for record February 21, 1894. Though referred to by Moore in that deed as "20 acres," by actual survey the tract he had conveyed to Palmer off the Underton contained only 13.28 acres. On the 4th day of January, 1908, Moore executed and delivered to Palmer another deed conveying him by metes and bounds another tract of land on the Underton, containing 5.2 acres of land. This deed recited that it was "for the purpose of correcting a deed heretofore executed by me [J. J. Moore] to L. P. Palmer on the 14th day of March 1894. * * * It is understood that the intention of this deed is to correct that certain deed given by J. J. Moore to L. P. Palmer attempting to convey the land conveyed herein, wherein a mistake was made in the description of said land." Palmer entered upon that part of the Underton survey conveyed to him by Moore in his first deed about the date of his purchase, improved, cultivated, used, and enjoyed it as his home. Also he used and enjoyed the 5.2 acres, and also had under fence a few acres of the Underton, in addition to these two tracts. On June 1st, after he had bought the Underton survey from Moore, Swilley leased it to Palmer, describing it as being "all that certain piece or parcel of land situated in Liberty county, Tex., being 300 acres out of a 320-acre survey originally granted to Chas. Underton, * * * the other 20 acres in this survey already owned by the said L. P. Palmer." Palmer testified that he held this land for Swilley under this lease from its date until 1913. On the 28th day of January, 1905, Mrs. Mattie B. Phillips, joined by her husband, filed suit in Liberty county against Palmer and Swilley, in the form of trespass to try title, to recover the entire 320 acres Underton survey. This suit was styled Phillips v. Palmer, No. 1328. Palmer answered, disclaiming as to all of the survey except that part conveyed to him by Moore in the deed dated the 22d day of July, 1885, describing the land claimed under this deed by metes and bounds, and as containing 20 acres of land, though in fact, as above stated it contained only 13.28 acres. Swilley answered, disclaiming as to that particular tract claimed by Palmer, also describing by metes and bounds the Palmer tract just as Palmer described it in his disclaimer, and referring to it as containing 20 acres of land. Palmer and Swilley each further answered by cross-actions for affirmative relief as to the lands claimed by them. These answers were filed on March 5, 1905. On trial of this cause, No. 1328, judgment was rendered for the defendants. The plaintiffs appealed, and the cause was reversed and remanded for a new trial. See Phillips v. Palmer, 56 Tex. Civ. App. 91, 120 S. W. 911. Without an amendment of the pleadings by these defendants, this cause came on again for trial on the 11th day of June, 1913. On that day Palmer settled his part of the controversy with L. A. Kottwitz, attorney for Mrs. Phillips and her husband. As setting forth the terms of the agreed settlement between Mrs. Phillips and Palmer, Judge Llewellyn, before whom the case was being tried, entered the following order on his docket:

"6/11/13. Interlocutory agreement in favor of L. P. Palmer for the 20 acres claimed by him and described in his cross-bill."

The cause then came on for trial between the plaintiffs and Swilley, and final judgment was entered on the 12th day of June, 1913. As an adjudication of the rights of Palmer, the judgment so entered recited:

"On this 12th day of June, 1913, came on the plaintiffs, Mrs. Mattie B. Phillips, and her husband, Morris Phillips, and the defendant, L. P. Palmer, into open court and made the court understand that by settlement, adjustment, and agreement the said L. P. Palmer, a party defendant, should have judgment for the land sued for on his plea in reconvention, which land is fully described in his said plea in reconvention. It is therefore ordered, adjudged, and decreed by the court that the plaintiffs take nothing by their suit against the said L. P. Palmer, on the following described land, and that said L. P. Palmer does have and recover of plaintiffs the following described tract of land, to wit: 20 acres out of the Chas. Underton survey in Liberty county, Tex., and described more particularly as follows. * * *"

But the land adjudged to Palmer by metes and bounds was not the land claimed by him in his answer and conceded to him by Kottwitz in the agreed settlement and by Swilley in his disclaimer, but was an entirely different tract of land. This error, however, was occasioned by a pure mistake, and was in no way induced by fraud. There is no question as to the mistake in the entry of the judgment on the minutes of the court. It is the contention of appellants that the entry on the judge's trial docket correctly stated the agreement between Kottwitz and Palmer, but, in deference to the verdict of the jury, we find that the real agreement was that Palmer should recover 20 acres of land, to include the two tracts theretofore deeded to him by Moore, and enough additional land lying north of these two tracts to make exactly the 20 acres. His petition sets forth, by metes and bounds, the land claimed by him under the agreement with Kottwitz, and we find that the land so described in plaintiffs' petition was the land that Mrs. Phillips, through her attorney, agreed should be awarded to Palmer. As grounds for tolling the statute of limitation, plaintiffs plead:

"That there had been such a serious mistake made in the drafting and entry of said judgment plaintiffs did not discover until about the month of December, 1918, and the fact that such mistake was not sooner discovered cannot be charged to and was not due to any failure on the part of plaintiffs, or either of them, to use ordinary care or reasonable diligence to discover the same, but in this connection the facts are, and plaintiffs further allege, that at the time said cause No. 3812 was compromised and settled as above alleged no definite time was set or agreed upon within which the said 20 acres to be decreed to plaintiffs in accordance with said agreement and settlement was to be surveyed and its actual location thereby definitely determined, nor in making such settlement was it agreed who should survey the land nor that such survey should be made promptly or without delay; but at the time of making such agreement it was known, as above alleged, by all the parties to said agreement, that the plaintiffs herein at that time were actually occupying and had inclosed with a fence not only a part of the 20 acres which was to be decreed to them, but also an additional portion of said Underton survey which would adjoin such 20 acres when its location was definitely determined by a survey of same, and further the understanding of plaintiffs at that time with the said Mrs. Mattie B. Phillips and Morris Phillips, acting by their said attorney, L. A. Kottwitz, was that plaintiffs might continue to use such additional portion of the Underton survey so occupied and inclosed by plaintiffs' fence until the lines of plaintiffs' 20 acres were actually run and located by a survey thereof; and the plaintiffs herein, preferring to have the said 20 acres surveyed by the county surveyor of Liberty county, Tex., did on various occasions apply to H. O. Compton, then and now county surveyor of Liberty county, to make a survey of said 20 acres, but, being engaged with other duties, the said Compton from time to time postponed making such survey for plaintiffs, and again on different occasions they would call his attention to the matter and request him to make the survey at his first opportunity, and upon every occasion when they so requested him to make such survey the said Compton promised plaintiffs to do so, and they relied upon his assurance that he would at his first opportunity make such survey; and at no time did the said Mrs. Mattie B. Phillips and Morris Phillips, or their said attorney, L. A. Kottwitz, or any person whomsoever, request plaintiffs to have said survey sooner made or request of plaintiffs that they withdraw their fences from that portion of the Underton survey surveyed for plaintiffs as above alleged, nor did the said Mrs. Mattie B. Phillips, Morris Phillips, or L. A. Kottwitz, or any one whomsoever, at any time complain to plaintiffs that the actual location of said 20 acres definitely should be determined without further postponement, or that there was any need or reason why the actual survey and location of said 20 acres ought to be immediately, or within any stated time, made and the lines of said 20 acres definitely determined and marked upon the ground, and plaintiffs during all...

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