Humble Oil & Refining Co. v. Luckel

• Decision Date: 22 April 1943
• Docket Number: No. 11516.,11516.
• Citation: 171 S.W.2d 902
• Parties: HUMBLE OIL & REFINING CO. et al. v. LUCKEL et al.
• Court: Texas Court of Appeals

Page 902

171 S.W.2d 902

HUMBLE OIL & REFINING CO. et al. v. LUCKEL et al.

No. 11516.

Court of Civil Appeals of Texas. Galveston.

April 22, 1943.

Rehearing Denied May 27, 1943.

Appeal from District Court, Brazoria County; M. S. Munson, Judge.

Suit by Louis Luckel, Jr., and others against the Humble Oil & Refining Company and others, including a statutory suit in trespass to try title, an action for damages for alleged slander of title, and an action for damages for wrongful acts by defendants in causing the expiration of the plaintiffs' mineral lease. Judgment for the plaintiffs, and the defendants appeal.

Judgment reversed and rendered.

Carlos B. Masterson and Floyd Enlow, both of Angleton, and R. E. Seagler, Dillard Baker, and Ralph B. Lee, all of Houston (E. E. Townes and Felix A. Raymer, both of Houston, of counsel), for appellants.

A. R. Rucks, of Angleton, and Cook, Blake, McCormick & Dickson, Cecil N. Cook, and Kirby Fitzpatrick, all of Houston, for appellees.

MONTEITH, Chief Justice.

This suit was brought by appellees, Louis Luckel, Jr., et al. against Humble Oil & Refining Company, Fred L. Wisch, Leo H. Wisch, Carlos B. Masterson and Mrs. Hazel Saint, individually and as executrix of the estate of Mrs. Louisa Wisch, deceased, and her husband, J. A. Saint, on three counts: (1) A statutory suit in trespass to try title for the recovery of the title to and possession of a 7/8 working interest in the minerals in 500 acres of land out of the David McNeel Survey in Brazoria County, Texas; (2) an action for damages for alleged slander of appellees' title to their interest in the above-described land; and (3) an action for damages because of alleged wrongful acts by appellants in causing the expiration of appellees' mineral lease on the above-described land in the event said lease was found to have expired.

Appellants answered by general and special denials and pleas of not guilty.

In a trial before the court judgment was rendered that appellees recover of and from all defendants the 7/8 working interest in the minerals under the 500 acres of land in controversy and that the 90 day period provided for in the lease agreement under which appellees claimed title be extended to 95 days from the date the judgment of the trial court became final. The judgment provided that the mineral lease from Fred Wisch and Leo Wisch to Carlos B. Masterson, for the benefit of Humble Oil & Refining Company, be cancelled in so far as it conflicted with appellees' lease. The judgment also awarded damages in favor of appellees against Humble Oil & Refining Company in the sum of $50,000. Notice of appeal from said judgment was given by Humble Oil & Refining Company, Leo H. Wisch, Fred L. Wisch and Carlos B. Masterson.

Findings of fact and conclusions of law were filed by the trial court. They were duly excepted to by appellants.

Mrs. Louisa Wisch died testate on October 11, 1925, leaving surviving her, her husband, W. H. Wisch, and three children, Mrs. Hazel Saint, Leo H. Wisch, and Fred L. Wisch. At the time of her death, she owned approximately 1100 acres of land in the Daniel McNeel Survey in Brazoria County, Texas, 500 acres of which is involved in this suit.

The sections of the will of Mrs. Louisa Wisch which relate to said 1100 acres of land and are material to this appeal read as follows:

"Item 3: I will and direct that my place in Brazoria County, Texas, being a tract of approximately 1100 acres shall be handled and the title thereto shall vest in the manner following:

"(a) Out of the net proceeds or returns from said tract by way of rent or otherwise there shall be paid to my beloved husband, W. H. Wisch, for and during his natural life or until the sale of said tract conformable to the terms hereof, the sum of $600.00 per year, or so much thereof as shall be available from said net proceeds. If said net proceeds amount to more than $600.00 in any year, then the excess above $600.00 shall be set aside to make up any possible deficiency in some subsequent year.

"(b) I believe that said tract is in the line of probable oil development and is probably valuable oil property. My son, Fred, has been doing some work in an effort to negotiate a mineral lease upon said property with a responsible oil company on a basis which would provide an initial payment of $5.00 per acre. If my son, Fred, be successful in negotiating said lease and my three children, Fred Wisch, Leo Wisch and Mrs. Hazel Saint, agree that it is desirable to make said lease, then I direct that said lease be made, provided that the terms thereof shall be agreeable and acceptable to all three of said children. * * *." (Subparagraph "b" of said will next provided for the disbursement of the proceeds of said rental payment if and when made.

"(c) Said Brazoria County tract may not be sold during the lifetime of my beloved husband, W. H. Wisch, except with unanimous consent and acquiescense of said husband and my said three children; but with said unanimous consent said tract may be sold during the lifetime of my said husband and in such event the proceeds of sale shall be divided into four equal parts, three of said equal parts shall go to and become the property of respectively, one to each of my said children, Fred Wisch, Leo Wisch and Mrs. Hazel Saint; the fourth equal part of said proceeds shall be so handled, reserved and used that there shall be paid to my beloved husband for and during his natural life out of the income of said one-fourth * * *.

"(d) If said Brazoria County tract be not sold during the lifetime of my said beloved husband, then upon the death of my said husband, the title to said tract shall descend to and vest in my said three children, Fred, Leo and Hazel, share and share alike, and said three children shall own said tract in fee simple absolutely in equal undivided interests."

Item 6 of said will provided for the appointment of Mrs. Hazel Saint as independent executrix, without bond, and with full power of sale. She duly qualified as such executrix. The will was probated in Harris County, Texas, on January 6, 1926.

The mineral lease on said 1100 acres of land referred to in subsection "b" of "Item 3" of said will was never consummated. However, other mineral leases involving the land were made by Mrs. Hazel Saint, as independent executrix under the will, subsequent to its probate and prior to the date of the execution of the lease involved herein. In no instance during that period was any mineral lease executed affecting said land in which W. H., Fred and Leo Wisch did not either join her in the execution thereof or consent and acquiesce thereto.

On February 16, 1940, Mrs. Hazel Saint, as independent executrix, for an expressed consideration of $10 paid, executed the oil and gas lease on the 500 acres involved herein in favor of Louis Luckel, Jr., trustee, under which appellees claim title. This lease was for a primary term of three years. It provided for the usual 1/8 royalty and delay rentals of $5,000 per year. On the same date and as a part of the lease agreement, appellee Luckel and Mrs. Saint executed a supplementary contract under which the lessee obligated himself, within 90 days from the date of the contract, to commence a 7500-foot well on said 500 acres of land, and in the event of his failure to do so to pay $25,000 to the lessor, and that in the event of lessee's failure to either drill said well or to pay said forfeit it was agreed that the lease would terminate as to all parties thereto. Mrs. Saint did not consult with Fred or Leo Wisch concerning the execution of this lease or said supplemental contract prior to their execution, but notified them of her action after the instruments had been executed.

On February 21, 1940, Fred Wisch and Leo Wisch entered into an escrow agreement and a mineral lease with Carlos B. Masterson covering their undivided 2/3 interest in the 600 acres out of the southwest portion of the Louisa Wisch 1100-acre tract. This lease included the 500-acre tract leased by Mrs. Hazel Saint, as independent executrix, to appellee, Louis Luckel, Jr. Carlos B. Masterson took this lease in his name for the benefit of the Humble Oil & Refining Company.

On March 19, 1940, appellee, Louis Luckel, Jr., entered into a drilling contract with the Harry L. Edward Drilling Company, wherein the Drilling Company agreed to drill a well on the northeast 250 acres of the 500 acres of land in controversy within 45 days after the date of the execution of the drilling contract, provided appellee could furnish a merchantable title to said 250 acres of land. Later the time within which this well was to be drilled was extended by agreement for a period of 120 days. In this extension agreement the Drilling Company obligated itself to begin the drilling of a well 45 days after the approval of appellees' title to said land. The record shows that no well has been drilled on said land under said contract; that appellees have never paid or tendered payment of the $25,000 required to be paid under the terms of said supplemental agreement, and that no agreement was made between appellees and Mrs. Hazel Saint, as such executrix, extending their time for the performance under said mineral lease or supplemental agreement or waiving any of the requirements or conditions thereof.

The controlling questions presented in the appeal are whether the action of the Humble Oil & Refining Company in taking, under assignment from Carlos B. Masterson, the mineral lease on the land in controversy from Leo and Fred Wisch, devisees under the will of their mother, Mrs. Louisa Wisch, amounted to a slander of appellees' title in and to said land, and, if so, whether appellees have suffered damages by reason thereof for which Humble Oil & Refining Company may be charged.

It is settled in this State that, in order for a plaintiff to recover in an action for defamation or slander of title, he must allege and prove: (1) the uttering and...