J. K. Hughes Oil Co. v. Mayflower Inv. Co.

• Decision Date: 12 March 1946
• Docket Number: No. 6196.,6196.
• Citation: 193 S.W.2d 971
• Parties: J. K. HUGHES OIL CO. v. MAYFLOWER INV. CO. et al.
• Court: Texas Court of Appeals

193 S.W.2d 971

J. K. HUGHES OIL CO. v. MAYFLOWER INV. CO. et al.

No. 6196.

Court of Civil Appeals of Texas. Texarkana.

March 12, 1946.

Rehearing Denied April 4, 1946.

Appeal from District Court, Wood County; Nat W. Brooks, Judge.

Suit in trespass to try title by the J. K. Hughes Oil Company against the Mayflower Investment Company and others. From the judgment, the plaintiff appeals.

Affirmed.

W. W. Mason, of Mexia, for appellant.

Jones & Jones, of Mineola, W. W. Harris, of Quitman, W. H. Barnes, of Terrell, V. A. Collins, of Livingston, Wynne & Wynne, of Wills Point, H. B. Houston, of Dallas, and Lasseter, Spruiell, Lowry & Lasater, of Tyler, for appellees.

HARVEY, Justice.

J. K. Hughes Oil Company filed suit in the District Court of Wood County, Texas, against Mayflower Investment Company, and others, in trespass to try title, claiming one-half the minerals under 43 acres of land in the Hazard Anderson Survey in Wood County. Pleading specially, plaintiff alleged that a sale under a certain deed of trust in the chain of title of defendants was defective, and that the purchaser thereunder, and those claiming under him, acquired no title, or at most were only mortgagees in possession. The various defendants filed answers including pleas of not guilty, general denial, innocent purchaser, and the several statutes of limitation, which defenses, in view of our disposition of the appeal, are not necessary to be detailed here. At the close of the evidence, all the defendants filed a motion for an instructed verdict against the plaintiff on the grounds that it had failed to show title in itself, but had shown an outstanding superior title in the defendants; that no irregularity had been shown in the sale under the deed of trust given Fidelity Fire Insurance Company by J. C. Plocher, the original vendee of the land in question, and in addition because there had been a rescission between such parties; that plaintiff's cause of action was barred by the several statutes of limitation; and because plaintiff's suit was inequitable and had been abandoned by reason of its failure seasonably to pay off and discharge the lien against the land involved. These motions were granted by the court and the jury instructed to return a verdict in favor of the defendants, and on a cross-action for J. C. Chrietzberg against J. K. Hughes Oil Company, et al., from which action of the court the J. K. Hughes Oil Company has perfected an appeal.

On October 14, 1925, the Fidelity Union Fire Insurance Company, which in 1930 changed its name to Fidelity Union Insurance Company, deeded the land herein involved to J. C. Plocher for a consideration of $100 cash, and the execution by Plocher, payable to the vendor or order, of fourteen promissory notes for $100 each, payable on November 1, in the years 1926 to 1939, each, respectively. The deed recites that said notes are secured by a deed of trust executed by Plocher, of the same date as the deed, to H. W. Gee, Trustee, and the notes themselves retain a vendor's lien in favor of the vendor and also refer to the deed of trust to H. W. Gee, Trustee. The deed of trust states that it was intended to secure the fourteen promissory notes executed by Plocher, bearing even date therewith, and fully describing them, but refers to them as being payable to the American Trust Company in a portion of the deed of trust, which was in printed form. In the latter part of the deed of trust, it is stated that the notes secured thereby are the same ones described in a deed from Fidelity Union Fire Insurance Company, and that said notes are payable to such company. In this latter paragraph where the printed form has the wording "having been transferred to the American Trust Company," the words in quotation are stricken out and the wording "being payable to Fidelity Union Fire Insurance Company," is inserted in typewriting just above the phrase that is marked out. On the trial it was proven that the American Trust Company at no time had any interest in the transaction and that the name of the American Trust Company inserted in the deed of trust and notices of sale was due purely to an error. H. W. Gee, Trustee, in 1931, having executed in writing his refusal to act under the terms of the deed of trust, C. H. Britton was appointed as substitute trustee, and he sold the land in question and executed a deed therefor on February 2, 1932, to Fidelity Union Insurance Company. The posted notices of sale under the deed of trust refer to the American Trust Company as payee of the notes, but also refer to the volume and page where the deed of trust is recorded.

After the deed of trust was executed by J. C. Plocher to H. W. Gee, Trustee, Plocher on October 5, 1929, sold one-half of the minerals under the land involved in this suit to Eighteen Petroleum Company, which in turn sold to the Neversuch Oil Company, which company subsequently amended its charter and became known as the J. K. Hughes Oil Company. On March 28, 1936, the Fidelity Union Insurance Company deeded all its mineral interest in the land in controversy to the Mayflower Investment Company. Prior thereto, on May 26, 1932, this insurance...