Hunt Production Co. v. Burrage

• Decision Date: 06 March 1937
• Docket Number: No. 12400.,12400.
• Citation: 104 S.W.2d 84
• Parties: HUNT PRODUCTION CO. v. BURRAGE.
• Court: Texas Court of Appeals

104 S.W.2d 84

HUNT PRODUCTION CO. v. BURRAGE.

No. 12400.

Court of Civil Appeals of Texas. Dallas.

March 6, 1937.

Rehearing Denied April 10, 1937.

Appeal from District Court, Dallas County; Towne Young, Judge.

Proceeding by Richard W. Burrage against H. L. Hunt, individually and as trustee, and the Hunt Production Company. From an adverse judgment, the company appeals.

Affirmed.

McEntire, James & Shank, of Tyler, for appellant.

John W. Pope, Sr., and J. Lee Zumwalt, both of Dallas, for appellee.

LOONEY, Justice.

In order that the matter under consideration may appear in its proper setting, the following statement is made: During the year 1925, C. M. Joiner owned certain oil and gas leases in Rusk county, Tex. He divided the acreage into three groups or syndicates, sold and issued to purchasers certain certificates, each evidencing an undivided interest in the acreage composing the syndicate against which the certificate was issued. On October 27, 1930, C. R. Adkins and other certificate holders instituted suit in the Forty-Fourth judicial district court of Dallas county against Joiner, seeking the establishment of their respective titles to undivided interests in the syndicates, as evidenced by their certificates, for an accounting, etc., and praying for the appointment of a receiver to take charge of the properties and administer same under the orders of court. Answering the suit, Joiner filed a cross-action and also prayed for the appointment of a receiver. Accordingly, on October 31, 1930, the court appointed Ernest H. Tennant receiver, who qualified and took possession of all Joiner leasehold properties, including the 500 acres involved in the present controversy. DeBogory v. Chapman (Tex.Civ.App.) 75 S.W.(2d) 186. Richard W. Burrage purchased and held a certificate issued by Joiner against syndicate No. 3, composed largely of the 500-acre tract here involved, and on April 7, 1931, filed his plea of intervention in the receivership suit, seeking to have his title established to an undivided 2-acre interest in the 500-acre tract, as evidenced by the certificate, and his plea of intervention was referred to the master in chancery. While the claim of Burrage was pending, H. L. Hunt, individually and as trustee, filed a motion in the original suit, alleging that they were sole owners of the 500 acres, and prayed that same be dismissed from the receivership. Burrage was not a party to this proceeding, nor did he know or have notice of its pendency prior to April 18, 1931, the date of the order of court dismissing the 500-acre tract from the receivership. The order dismissing the land from the receivership contains the following, to wit: "* * * the right of possession thereto shall revert to and vest in the various owners thereof as their interests might appear, and said owners of said property shall be entitled to receive any and all oil taken from said land, now in storage tanks, and all oil and proceeds of oil run from said property since March 31, 1931, said dismissal being without prejudice to the rights of the various owners and/or claimants to said property, as among themselves or with other parties."

Hunt, individually and as trustee, was a party to the original suit; Burrage became a party later by his plea of intervention. After the 500-acre tract was dismissed from the receivership, the master in chancery, after a hearing on Burrage's plea of intervention, filed his report, finding that Burrage was owner of an undivided 2-acre interest in the 500-acre tract. This report being approved, the court, on April 4, 1932, rendered judgment in favor of Burrage, establishing his title to the 2-acre interest. While the record fails to disclose that Hunt was served with notice of the hearing by the court on the master's report, we think it is disclosed with reasonable certainty that Hunt knew of Burrage's claim and plea of intervention. The testimony of Harry B. Harter, employee of Hunt and Hunt Production Company, having charge of their office and office files, testified in substance that Mr. Hunt fully understood matters pertaining to the receivership and was conversant therewith. Tom C. Clark, master in chancery, who held the hearing on Burrage's plea of intervention and approved his claim to a 2-acre undivided interest in the 500-acre tract, testified, in substance, that at the time he knew H. L. Hunt, individually and as trustee, was interested in the matter; that notice of the hearing was advertised in newspapers in Dallas, Dallas county, Henderson, in Rusk county, and Tyler in Smith county, and personal notices of the hearing were addressed to all interested parties; the witness testifying that it was his custom to notify all interested parties of hearings to be had on claims pending before him. From this testimony we are of opinion, and so conclude, that Mr. Hunt knew of the pendency of Burrage's plea of intervention, and had notice of the hearing thereon by the master.

On May 1, 1932, subsequent to the rendition of judgment in favor of Burrage, Hunt and others organized and procured a charter for Hunt Production Company, and thereafter Hunt conveyed the 500-acre tract to the company, of which he personally owned four-fifths and as trustee held one-fifth, and received in lieu approximately four-fifths of the stock of the company for himself, and one-fifth in his capacity as trustee.

On May 25, 1932 (after the above-recited transactions), Hunt, individually and as trustee, filed in the receivership suit a pleading in the nature of a bill of review, praying that the judgment of April 4, 1932, establishing Burrage's claim to a 2-acre undivided interest in the 500 acres, be set aside. On trial of the bill of review, the court, on June 10, 1933, rendered judgment against Hunt individually and as trustee, denying the relief sought, reciting that: "The court further finds that, after the granting and entering of judgment in favor of Richard W. Burrage, intervenor, H. L. Hunt, individually and as trustee, caused to be filed herein his motion to set aside said judgment and hold the same for naught, to which motion filed, the claimant, Richard W. Burrage, filed his answer, and thereupon, all parties re-introduced on May 6, 1933, all evidence heard before the Master in Chancery, as well as additional oral testimony and documentary evidence, and the court, after hearing and considering all pleadings herein, and after hearing and considering all evidence adduced upon hearings on said motion and answers, and after reviewing briefs filed by counsel for all parties herein, is of the opinion that the relief sought by the said H. L. Hunt, individually and as trustee, should, in all respects, be denied, and that the judgment entered by this court on April 4, 1932, in favor of the intervenor, Richard W. Burrage, should, in all respects, stand in full force and effect * * *."

On refusal by the court to set aside the judgment in favor of Burrage, Hunt appealed, individually and as trustee; no other interested party complained of the judgment.

We dismissed the appeal on the idea that as Hunt, individually and as trustee, had parted with title to said leasehold (having conveyed same to the corporation), he was not an aggrieved party and had no right to an appeal. Hunt v. Burrage (Tex.Civ. App.) 84 S.W.(2d) 1098. In due time, the Supreme Court dismissed an application for writ by Hunt, thus the judgment in favor of Burrage against Hunt, individually and as trustee, became final and, under the facts disclosed, we think, was also binding upon the Hunt Production Company. The appeal by Hunt, as just stated, was on a cost bond, and while same was pending Burrage filed a motion in the original receivership suit, requesting the enforcement of his judgment, to which proceeding he made Hunt, individually and as trustee, also Hunt Production Company, parties — that is, they were served with notice of the motion. Burrage based his right to have the judgment enforced on the ground that the same had not been superseded (at that time the supersedeas bond had not been filed), alleging that he was entitled to his proportionate share of oil runs from the wells on the 500-acre leasehold, which had been denied him by Hunt; wherefore, he prayed the court to resume possession of the land through the receiver theretofore appointed, and to cause the receiver to take into his possession the oil runs from the land, and pay petitioner his proportionate part thereof, this being the specific method adopted by Burrage to secure enforcement of the judgment. To this motion Hunt, individually and as trustee, also Hunt Production Company, filed pleas of privilege to be sued in Smith, the county of their residence, contending that the motion, in effect, was a new and independent suit. Burrage duly controverted these pleas, contending that the motion was not subject to pleas of privilege, for the reason that the court rendering judgment was the only proper jurisdiction for its enforcement. These pleas being overruled, an appeal was prosecuted to this court, which we dismissed for the reason that the filing of the supersedeas bond (on the appeal from the order denying Hunt a review of the judgment in favor of Burrage) had the effect of destroying the motion filed for the enforcement of the judgment, thus leaving nothing upon which a plea of privilege could be based. Hunt v. Burrage (Tex.Civ.App.) 95 S.W.(2d) 202.

After all these proceedings became final, Hunt Production Company on November 16, 1935, instituted suit against Burrage in form of trespass to try title in the district court of Rusk county, seeking recovery of the 500-acre leasehold (although as disclosed by the record, Burrage had never asserted, and was not then asserting, title to any part of the 500 acres, save and except an undivided 2-acre interest therein). After being cited to answer the trespass to try title suit, Burrage, on December 9, 1935, filed a second motion in the...