Humble Oil & Refining Co. v. Andrews
| Decision Date | 27 May 1926 |
| Docket Number | (No. 1880.)<SMALL><SUP>*</SUP></SMALL> |
| Parties | HUMBLE OIL & REFINING CO. v. ANDREWS. |
| Court | Texas Court of Appeals |
Suit by P. W. Andrews against the Humble Oil & Refining Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Scott W. Key, of Eastland, and Hines H. Baker and John C. Townes, Jr., both of Houston, for plaintiff in error.
Jerome P. Kearby, of Comanche, for defendant in error.
This suit was filed December 31, 1924, by the defendant in error, Andrews, against the plaintiff in error, Humble Oil & Refining Company, to recover damages in the sum of $5,000, the alleged value of seven-eighths of the oil produced from a five-acre oil and gas lease.
Judgment was rendered in favor of Andrews for $4,971.76, being the value of seven-eighths of the oil produced from the lease from November 21, 1921, to February 4, 1924.
The material facts are as follows: In May, 1921, Andrews sued the Manhattan Texas Petroleum Company to recover a debt, and sued out a writ of attachment, which was levied May 28, 1921, on said oil and gas lease. This suit was numbered 6456. Andrews in that case also caused to be issued and served a writ of garnishment upon the Humble Oil & Refining Company. In the garnishment suit the garnishee impleaded A. H. Woodfin, R. Q. Williams, and others, and tendered into court the value of the oil produced from the lease and theretofore purchased by it.
The garnishment suit was consolidated and tried with the main suit, and, upon November 21, 1921, judgment was rendered that Andrews take nothing, and title to the oil and gas lease was divested out of the Manhattan Texas Petroleum Company and vested in Woodfin on his cross-action for the use and benefit of R. Q. Williams, subject to liens in favor of Pat Arnold and Argonaut Oil Company, which liens were fixed upon the fund paid into court by the garnishee.
Andrews appealed from that judgment upon a cost bond.
On July 5, 1922, a writ of possession was issued in favor of Williams upon said judgment, which was executed the same day by the sheriff placing Williams in possession of the five acres. The appeal of Andrews was sustained, and the judgment reversed on April 26, 1923. 252 S. W. 878.
Upon retrial, judgment was rendered November 8, 1923, in favor of Andrews against the Manhattan Texas Petroleum Company for $4,799, with interest and foreclosure of the attachment lien. Under the foreclosure the lease was sold February 5, 1924, to Pat Arnold for $100, which was credited upon the judgment which Arnold had obtained in the suit. Upon the date of the levy of the attachment the lease was producing oil from wells theretofore drilled thereon, and thereafter continued to produce in the usual and customary manner and in the customary amount, and was continuously operated since the levy of said attachment up to the date of foreclosure; no new wells being drilled thereon subsequent to the date of said levy. During all of the time between the date of the first judgment in said cause No. 6456 and the date of the foreclosure sale under the second judgment in favor of P. W. Andrews the Humble Oil & Refining Company purchased the oil produced from said lease by A. H. Woodfin and his assigns, who were in possession of and operating said lease; the said oil being taken by the Humble Oil & Refining Company from the surface tanks maintained by such parties. Woodfin claimed the lease under a prior foreclosure sale, and upon the appeal in cause No. 6456 it was held he had no title. 252 S. W. 878.
The defendant in error has recovered judgment against the plaintiff in error for the value of the current oil production from the lease produced between the date of the first judgment rendered in cause No. 6456 on November 21, 1921, and the foreclosure sale under the second judgment. The plaintiff in error purchased this oil from R. Q. Williams and his assigns. Williams claims under Woodfin.
It is first contended by the plaintiff in error that the lien of the attachment upon the lease did not attach to the current oil production between the date of the levy and sale from wells upon the premises at the date of the levy.
In support of this position it asserts that an attachment lien is of no higher dignity or rank than a mortgage or other lien, and cites authorities holding that the mortgagor is entitled to the rents and profits to the date of foreclosure; that the purchaser at a mortgage foreclosure is not entitled to the rents and profits accruing before foreclosure or during the pendency of the foreclosure proceedings; that, unless restrained by the terms of the mortgage, the mortgagor in possession may work mines or quarries upon the mortgaged properties, and whatever he severs from the realty becomes unincumbered personalty and his own property; that the holder of a mechanic's lien is not entitled to satisfaction out of the rents and profits (Pratt v. Tudor, 14 Tex. 37); also a case in this state (Crowley v. Adams & Prince, 262 S. W. 883) and cases from other states holding that a mechanic's and laborer's lien upon an oil and gas lease and the oil well located thereon does not cover nor enhance the oil and gas currently produced therefrom. These authorities and the rule which they announce have no present application.
In the first place, the lienors in those cases owned the incumbered property, and were rightfully in possession, whereas in this case the parties from whom the plaintiff in error purchased the oil were not the owners of the lease and wells, nor were they rightfully in possession under the final judgment rendered in cause No. 6456. The Manhattan Texas Petroleum Company owned the same until the foreclosure sale. It is true Woodfin and his assigns were in possession from July 5, 1922, under color of legal process issued upon the first judgment in cause No. 6456, but this judgment was set aside upon appeal.
Oil in place is a part of the realty. The lease upon the five acres operated to sever the oil from the balance of the realty. Stephens County v. Mid-Kansas, etc., 113 Tex. 160, 254 S. W. 290, 29 A. L. R. 566; Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S. W. 299, 29 A. L. R. 607. The levy of the attachment attached a lien to the oil in place as thus severed. Woodfin and his assigns without right have removed the oil, thereby investing it with the character of personalty. They and plaintiff in error, who purchased the same, thereby became liable as for waste and conversion of the only property which the plaintiff's attachment lien covered. Pittsburg, etc., v. Pentress, 84 W. Va. 449, 100 S. E. 296, 7 A. L. R. 901; Gaskins v. Davis, 115 N. C. 85, 20...
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