Gulf Production Co. v. Continental Oil Co.

Decision Date18 May 1933
Docket NumberNo. 4310.,4310.
Citation61 S.W.2d 185
PartiesGULF PRODUCTION CO. et al. v. CONTINENTAL OIL CO. et al.
CourtTexas Court of Appeals

Appeal from District Court, Rusk County; R. T. Brown, Judge.

Suit by the Continental Oil Company and others against the Gulf Production Company and others. Judgment for plaintiffs, and defendants appeal.

Affirmed.

H. L. Stone, of Pittsburg, Pa., John E. Green, Jr., and Claude McCaleb, both of Houston, C. L. Stone, of Henderson, and William L. Wise and Peveril O. Settle, both of Fort Worth, for appellant Gulf Production Co.

Brachfield & Wolfe, of Henderson, McKinney & Berry, of Cooper, and Wm. Pannill, of Fort Worth, for appellants G. G. Turner and wife.

Burney Braly, G. B. Smedley, and G. R. Pate, all of Fort Worth, for appellee Continental Oil Co.

Phillips, Trammell, Chizum, Price & Estes and Eugene Lary, all of Fort Worth, for appellee East Texas Refining Co.

McEntire, James & Clower, of Tyler, for appellees P. G. Lake and H. L. Hunt.

Reuben M. Roddie, of Oklahoma City, Okl., for appellee R. Q. Williams.

James & Conner, of Fort Worth, for appellees Wildman Petroleum Corporation and Frank M. Farley.

Edward R. Hudson, of Fort Worth, for appellees Minerals, Inc., Midland Oil Co., and B. D. Moore.

Wynne & Wynne, of Longview, for appellees Southland Royalty Co. and P. N. Wiggins, Jr.

JOHNSON, Chief Justice.

Appellees, Continental Oil Company, East Texas Refining Company, P. G. Lake, and H. L. Hunt, as plaintiffs, sued Gulf Production Company, G. G. Turner and wife, Sina A. Turner, and others, defendants in the trial court, to recover the leasehold mineral interests in and under a certain tract of land in Rusk county. From a judgment upon special findings of the jury in favor of plaintiffs, the defendants Gulf Production Company and G. G. Turner and wife, Sina A. Turner, have appealed to this court.

The appeal presents for determination which of two oil and gas leases executed by G. G. Turner and wife on the same land on different dates and to different lessees shall be held as the superior lease. Appellees claim under a lease executed April 7, 1927, by G. G. Turner and wife to C. M. Joiner, trustee, hereafter referred to as the Joiner lease filed for record April 15, 1927. The appellant Gulf Production Company claims under a lease executed by G. G. Turner and wife to J. W. Pevey, hereafter called the Pevey lease, bearing date July 25, 1930, filed for record August 5, 1930. Appellants contend (1) that the Joiner lease is void because G. P. Birdwell, the notary public taking the acknowledgments of G. G. Turner and wife thereto, was interested in the conveyance at the time the acknowledgments were taken; and (2) that the lease had terminated by failure to drill a well or pay the money rentals according to the terms of the lease. Appellees contend (1) that they were innocent purchasers for value and without notice, actual or constructive, of the interest, if any, of the notary public, Birdwell, in the lease; and (2) that syndicate interest certificates in the eighty-acre lease on which was being drilled the Joiner discovery well were issued in advance payment to and accepted by G. G. Turner in satisfaction of the "money rentals" provided for in the lease. In reply to which appellants contend (1) that the certificate of Birdwell as a notary public, by reason of his alleged interest in the Joiner lease, was "void" and could not operate to protect an innocent purchaser, nor for any purpose; and (2) that, by reason of the record of certain assignments hereafter referred to, the appellees had constructive notice at the time they purchased the Joiner lease that Birdwell was interested in it at the time he certified to the acknowledgments of Turner and wife, the lessors; and (3) that, since the land was a part of the homestead of Turner and wife, G. G. Turner, the husband, was without legal authority to accept anything other than "money" in satisfaction of the rentals provided for in the lease; and (4) that his attempt to do so, and the proof in support thereof, attempted to vary and did vary the terms of the written lease and violated the statutes of frauds. Relating to the contentions above stated, the jury found:

"That G. G. Turner and wife, Sina A. Turner, prior to April 7, 1928, accepted syndicate interest certificates purporting to cover the 80-acre Joiner discovery well tract in satisfaction of the rentals payable to G. G. Turner and wife on the Joiner lease for the three succeeding years commencing April 7, 1928."

"That appellees, at the time they purchased their several interests therein, did not know and by the exercise of ordinary inquiry could not have known of any defect or defects, if any, in the Joiner lease."

The Joiner lease, under which appellees claim title, is prior in point of time by more than three years to the Pevey lease under which the appellants claim title. It is for a term of five years, and so long thereafter as oil or gas is produced from said land, subject to termination at the expiration of each six months, if a well is not previously drilled, unless certain stipulated semiannual rentals are paid in advance. The acknowledgments of G. G. Turner and wife to the Joiner lease are regular in form, and the instrument does not disclose the interest, if any, the notary public Birdwell had in the conveyance. There is no finding by the jury that Birdwell was in fact interested in the Joiner lease, nor that the appellees had actual notice of his interest, if any he had. At the time the Joiner lease was executed, it does not appear that C. M. Joiner, lessee, or G. G. Turner or his wife, Sina A. Turner, lessors, had actual or constructive notice that Birdwell had any interest in or would receive any interest by the conveyance; and there does not appear to have been any imposition or fraud practiced on Turner or his wife by Birdwell. But, at the time appellees purchased under the Joiner lease, there was of record (1) an assignment by which Joiner, on March 29, 1927, prior to his purchase of the lease from Turner and wife, assigned to W. D. Tucker "a 1/4 undivided interest in all of the oil and gas leases now owned and controlled by me (C. M. Joiner) as Trustee, in Rusk County, Texas, * * * and all leases and royalties to be secured and taken in my name as Trustee in such County"; and (2) an assignment executed by W. D. Tucker, attached to the above assignment, reciting that he assigned a one-half interest to Sam Warren, trustee, for certain named persons, one of whom was G. P. Birdwell. The acknowledgment of Tucker, the assignor, to this assignment was taken by G. P. Birdwell, one of the assignees named in the instrument. These instruments were executed prior to the Joiner lease, but not filed for record until August 19, 1930, more than three years after the execution of the Joiner lease, though prior to the purchase by appellees under the Joiner lease. Appellants contend that the assignments above referred to from C. M. Joiner to W. D. Tucker and from Tucker to Sam Warren, trustee, for G. P. Birdwell and others, operated to vest in Birdwell an interest in all the leases subsequently taken in the name of C. M. Joiner, trustee, in Rusk county, that, the Joiner lease being subsequently taken, and in the name of C. M. Joiner, trustee, thereby Birdwell received an interest in it, and his certificate as notary public to the acknowledgment of G. G. Turner and wife thereto was void and of no effect and, if not void, that appellees had constructive notice of the same by reason of the assignments from Joiner to Tucker, and by Tucker to Sam Warren, trustee, for Birdwell and others, being of record at the time appellees purchased the Joiner lease. A notary public is disqualified to take the acknowledgment of the grantors to a conveyance in which he is interested. His disqualification is not statutory, but he is disqualified as a matter of public policy. And, as between the parties with knowledge or where his interest is apparent on the face of an instrument, it is held that the certificate of acknowledgment made by him thereto is ineffective for any purpose. Silcock v. Baker, 25 Tex. Civ. App. 508, 61 S. W. 939; Clements v. Texas Company (Tex. Civ. App.) 273 S. W. 993. And such instruments revealing the disqualification are not subject to registration, and, when recorded, do not import constructive notice. Appellants in support of their contention have cited a...

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8 cases
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