Johnson v. Russell

• Decision Date: 07 February 1920
• Docket Number: (No. 9224.)
• Citation: 220 S.W. 352
• Parties: JOHNSON v. RUSSELL et ux.
• Court: Texas Court of Appeals

220 S.W. 352

JOHNSON v. RUSSELL et ux.

(No. 9224.)

Court of Civil Appeals of Texas. Ft. Worth.

February 7, 1920.

Rehearing Denied March 27, 1920.

Appeal from District Court, Erath County; J. B. Keith, Judge.

Suit by W. E. Russell and wife against B. J. Johnson and others. From a judgment for plaintiffs, the named defendant appeals. Reversed and remanded.

J. A. Johnson and R. L. Thompson, both of Stephenville, for appellant.

Chandler & Pannill, of Stephenville, for appellees.

BUCK, J.

W. E. Russell and wife filed suit in the district court of Erath county against B. J. Johnson, B. S. Millner, and A. M. Burden to cancel a certain oil and gas lease executed by Russell and wife to B. J. Johnson July 26, 1918. Plaintiffs alleged that at the time said lease was given the defendant Johnson represented to the plaintiff W. E. Russell that he was going to drill a well on a block of leased land, of which plaintiffs' property would be a part if he should lease it within 90 days, and would begin the actual drilling of a well for oil and gas within three miles of plaintiffs' land; that Johnson represented that he was not a speculator in oil and gas leases for commercial purposes, but took the same with the intent of drilling for oil and gas; that only $1 was paid plaintiffs for the execution of this lease, which nominal payment did not constitute the true consideration, but that the true consideration was the promise on Johnson's part to drill the well, etc. Plaintiffs further alleged that the premises described in said lease constituted the homestead of plaintiffs, and that the notary taking the acknowledgment of both plaintiffs was the nephew of W. E. Russell, and hence the lease was void. Other allegations were made, but the above statement will suffice for the present.

B. S. Millner was discharged with his costs, and a judgment was rendered for plaintiffs under a peremptory instruction. Johnson alone appeals. Appellees urge that the judgment cannot be disturbed for the following reasons to wit: (1) That it appears that the lease was dated July 16, 1918, and executed July 26, 1918, and that the lease provides that, "if no well be commenced on said land on or before the 16th of July, 1918, this lease shall terminate as to both parties," etc.; (2) that the evidence shows that the premises were the homestead of plaintiffs, and that the acknowledgment of plaintiffs were taken by W. P. Russell, a nephew of Dr. Russell.

Plaintiffs attached a copy of the lease to their petition, in which the date when the lease should expire unless rental should be paid for another year was given as July 16, 1919. No pretense was made in the testimony to show that the last-named date was not the true date, while the statement of facts does show that the lease would expire July 16, 1918, in the event no rental was paid. In fact, no reference is made as to the date. Hence it is evidence that the date given in the statement of facts is a mistake in copying the lease, and we will so hold.

If the premises covered by the lease were not a homestead, the deed, without an acknowledgment, would convey title to the premises. The acknowledgment is only necessary for registration and notice. McLane v. Canales, 25 S. W. 29. Dr. Russell testified incidentally that the land conveyed was his homestead, but from the evidence it is patent that in so stating he was merely stating his conclusion. He testified upon this point as follows:

"All the property that is owned by myself and wife is this farm and the home on which we live in Duffau — my house and lot. I have lived at Duffau 22 years. Duffau is not an incorporated town or village. There are 2 acres of land, more or less, in the lot on which I live and 150 acres in this other tract. The two pieces of property are approximately one-half of a mile apart. * * * A part of it [my contention] is because the land is a part of my homestead."

These two bits of evidence seem to be all of the evidence on the question as to the leased premises being a part of the homestead. It is true that a piece of land separated from the tract of land on which the dwelling is situated may be so used as to make it a part of the homestead, but the evidence in this case does not establish that fact so as to justify a peremptory instruction. Effinger v. Cates, 61 Tex. 590; Andrews v. Hagadon, 54 Tex. 571; Peregoy v. Kottwitz, 54 Tex. 497; Mikael v. Equitable Securities Co., 32 Tex. Civ. App. 182, 74 S. W. 67; Brooks v. Chatham, 57 Tex. 31.

Appellees in their brief set out the four grounds alleged in their petition for cancellation of the lease, and they are as follows: (1) The same was procured by fraud; (2) that the same was without consideration; (3) that the consideration, if any there was, for the execution of the lease, had wholly failed; (4) that the lease was void because the acknowledgment of appellee Mollie Russell was taken by a notary public related to her within the third degree. We have discussed the fourth ground alleged and relied on, and in view of what we have heretofore said as to the condition of evidence relating to the...