Humphrey v. McCarty

• Court: Texas Court of Appeals
• Writing for the Court: Buck
• Citation: Humphrey v. McCarty, 251 S.W. 609 (Tex. App. 1923)
• Decision Date: 17 February 1923
• Docket Number: (No. 10110.)
• Parties: HUMPHREY et al. v. McCARTY et al.<SMALL><SUP>*</SUP></SMALL>

Page 609

251 S.W. 609

HUMPHREY et al. v. McCARTY et al.^*

(No. 10110.)

Court of Civil Appeals of Texas. Fort Worth.

February 17, 1923.

Rehearing Denied March 24, 1923.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Action by T. D. Humphrey and others against Mrs. Annie V. McCarty and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded for new trial.

Cook, Spencer & Bailey, of Wichita Falls, for appellants.

Harris & Martin, of Wichita Falls, for appellees.

BUCK, J.

T. D. Humphrey, O. W. Harvey, Roy I. Carter, C. C. Schumway, and Judge Chas. F. Spencer bought from S. H. McCarty, Jr., his mother, brothers, and sisters, an oil and gas lease on 217 acres of land in Wichita county, for $21,700. Some time after the purchase, the buyer had the land surveyed, and it was found that there were only 131.4 acres in the tract; there being a shortage of 85.6 acres. Efforts were made by the lessees to have the lessors return the $8,560, alleged to be due upon a valuation of $100 an acre, and finally the lessors did pay the lessees $6,420, or $75 an acre, for the shortage. This suit was filed by the lessees, except Judge Spencer, to recover the $25 an acre for the shortage. Judge Spencer stated that he personally waived his claim for any return, on account of the fact that he felt that some of his associates might blame him for not having the land surveyed when he leased it.

The cause was tried before the court without the intervention of a jury, and the trial court sustained the plea in abatement, interposed by Mrs. Annie McCarty, as guardian for five minor children, that the claim against the guardian of the minors had not been presented to her and payment refused before the filing of the suit, as required by law. The trial, as to the claims of the plaintiffs against the other defendants, resulted in a judgment for the defendants.

At the time the $6,420 was repaid by the lessors to the lessees, S. H. McCarty suggested that a lease be given to him of the 85.6 acres, and T. D. Humphrey, in whose name the title had been placed, executed a conveyance of the title to the 85.6 acres which, omitting formal parts and the recitation that a lease had been made by the McCartys to the plaintiffs theretofore, and omitting the description, reads as follows:

"Said lease being recorded in the deed records in and for said county, in Book 40, page 428, and

"Whereas, the said lease and all rights thereunder or incident thereto are now owned by the undersigned:

"Now, therefore, know all men by these presents, that I, T. D. Humphrey, for and in consideration of one dollar, and other good and valuable consideration to me paid, the receipt of which is hereby acknowledged, hereby bargain, sell, transfer, assign and convey unto the S. H. McCarty, the said lease and all rights thereunder in so far as it covers all of the 217 acres with exception of 131.4 acres adjoining the 100 acres heretofore leased by McCarty et al., as mentioned in above original lease (it being the intention of this assignment to convey all of my interest in said 217-acre lease, with exception of 131.4 acres as mentioned), together with all personal property used or obtained in connection therewith.

"To have and to hold unto the said S. H. McCarty, his heirs, and assigns.

"And, I, for myself, and my heirs, and legal representatives, do covenant with the said S. H. McCarty, his heirs and assigns, that I am the lawful owner of the said lease and rights and interest thereunder and of the personal property thereon or used in connection therewith, that the same are free and clear from all liens or other encumbrances, and that all rentals and royalties due and payable thereunder have been duly paid.

"In witness whereof, I, we, or ____ have signed and sealed this instrument, this 20th day of December, 1919.

                            T. D. Humphrey."
                

Judge Chas. F. Spencer, T. D. Humphrey, and O. W. Harvey were the only witnesses who testified in the trial. Judge Spencer testified that when the lessees made demand on Houston McCarty, representing himself and all the other defendants, for a return of the $100 per acre paid for the 85.6 acres which the tract was found to be short, at first McCarty seemed unwilling to return anything. Finally he consulted with Judge Harvey, and the result was they paid back $6,400 (which amount other evidence showed was really $6,400). That McCarty claimed that they had paid the agent who sold the lease $25 an acre in the way of commission, and that the plaintiffs ought to recover that amount from him. That the witness told McCarty that the plaintiffs had nothing to do with the agent, that McCarty had employed and paid him, and that only he could get the agent to pay back the $25 per acre. That under the understanding between the lessors and lessees at the time of the purchase of the lease on the 217 acres, the lessees were to pay no part of the commission, just to pay $100 per acre. That there were eleven children, and Mrs. McCarty owned 11.22, the minors 5.23, and the other six children, adults, owned 6.22. That he was positive that none of the lessees released their part of the $25 an acre, except himself. Humphrey testified that none of the lessees, except Judge Spencer, agreed to release their claim for the return of the $25 per acre on the shortage. They never agreed to take less than the full amount, and so told S. H. or Houston McCarty.

Mr. Harvey testified generally to the same effect as did Mr. Humphrey, and that McCarty said that he was paying taxes on the 217 acres of land, and he thought that if he had to refund any amount that he would like to have some paper so if the occasion ever arose he could get his money back, so that he might get the benefit of whatever there might be in it, and that he asked that the lessees make a conveyance of their interest, whatever that might be, in this shortage; that he wanted to protect himself in case it ever amounted to anything, so he could get his money out of it.

Houston McCarty, though it appears he was present at the trial, did not testify.

The trial court filed his findings of fact and conclusions of law. He finds that the defendants acting by and through the defendant S. H. McCarty, Jr., who was their duly authorized and acting agent, executed the lease to T. D. Humphrey, who was the duly authorized and acting agent for the plaintiffs, on 217 acres of land, more or less, out of a 317-acre tract of the Sam O. Fowler survey. That said lease was made, executed, and delivered, and the consideration of $21,700 was paid by the lessees to the lessors. That upon a survey of the said tract of land it was found that it contained...