Johnson v. Stickney

• Decision Date: 30 April 1941
• Docket Number: No. 10830.,10830.
• Citation: 152 S.W.2d 921
• Parties: JOHNSON et al. v. STICKNEY.
• Court: Texas Court of Appeals

Page 921

152 S.W.2d 921

JOHNSON et al. v. STICKNEY.

No. 10830.

Court of Civil Appeals of Texas. San Antonio.

April 30, 1941.

Rehearing Denied July 2, 1941.

Appeal from District Court, Zapata County, Forty-ninth District; John A. Valls, Judge.

Action in trespass to try title by E. H. Stickney against Roque Gonzales, George W. Johnson, and others, to recover an undivided one-fourth mineral interest in certain realty, and an undivided one-eighth mineral interest in other realty, wherein Roque Gonzales filed a cross-action against the plaintiff and George W. Johnson. E. H. Stickney recovered on a jury verdict, and Roque Gonzales and George W. Johnson appeal.

Judgment reversed, and cause remanded.

Richard T. Davis, Boyle, Wheeler, Gresham & Terrell, and Neil E. Beaton, all of San Antonio, for appellants.

Raymond, Algee & Alvarado and Herbert G. Davis, all of Laredo, for appellee.

SMITH, Chief Justice.

This action in trespass to try title was brought by E. H. Stickney against Roque Gonzales (joined by his mother and sister) and George W. Johnson to recover an undivided one-fourth mineral interest in Surveys 9, 11 and 125, and an undivided one-eighth mineral interest in Survey 12, in certain grants of land in Webb and Zapata Counties. For convenience, the first named group of defendants will be hereinafter referred to as "Gonzales." Gonzales filed a cross-action against his co-defendant and Stickney. Stickney recovered on a jury verdict, and Gonzales and Johnson have prosecuted appeals jointly in part, and separately in part as to Johnson. The Gonzales appeal will be first considered.

It appears from the record that on March 19, 1919, Gonzales' ancestors executed and delivered to one Vaughn B. Jones a mineral lease on the land here involved, which constituted a part of a 5,000-acre block included in the same lease. The owners of the land covered by the lease concluded to seek its cancellation. Its present status is not apparent from the record here.

On February 17, 1934, Gonzales entered into a contract with appellee, Stickney, whereby the latter became obligated, at his own expense, to institute within a reasonable time, and prosecute to a successful conclusion, such suit or suits as were necessary to effect a cancellation of the Jones lease on their half of the 5,000-acre tract covered by the lease. Stickney, not being an attorney, was authorized and obligated to employ and himself pay attorneys to prosecute such suit. It was provided in said contract that as consideration for Stickney's services in the undertaking, Gonzales would immediately execute in appellee's favor an oil and gas lease upon a one-half interest in said lands, which lease was to be deposited in escrow until Stickney filed said suit, when it should be delivered to him. Gonzales further agreed in said contract to execute a second and similar lease upon the remaining interest in said lands, to be placed in escrow until the successful conclusion of said litigation and then delivered to Stickney; and, further, it was stipulated that neither of said two leases should take effect until the original Jones lease had been set aside. Said contract between Stickney and Gonzales and the two leases therein provided for were executed and deposited in escrow as agreed.

Shortly afterwards, on April 23, 1934, Stickney procured the filing of the proposed suit to cancel the Jones lease, employing therefor Messrs. Pope and Pope, a firm of attorneys consisting of John A. Pope, Jr., and Bismark Pope, the latter being then and for two years theretofore attorney for Gonzales in other but related matters.

It appears, however, that Stickney purposely refrained from procuring issuance and service of process or otherwise taking any steps towards prosecuting said suit, as he was obligated to do, and the same was actually dismissed for want of prosecution on May 7, 1938.

On May 22, 1935, Gonzales entered into a further contract with Stickney, supplementing the prior agreement of February 17, 1934. It was recited in the supplemental agreement that although Stickney had instituted the suit, which he was obligated in the original agreement to file and prosecute to a successful conclusion, at his own expense and through attorneys of his own selection, he had been obliged to go to a greater expense in the matter than was at first contemplated; that he was "still desirous of prosecuting said suit to its determination," and, further, that all the parties were desirous of protecting their minerals under said land, and having same developed under a valid lease, wherefore, the original agreement of February 7, 1934, between the same parties was "re-affirmed" and "ratified," and thereby amended to provide that Gonzales execute to Stickney another lease covering the entire four surveys, instead of one-half thereof, as in the original lease. It is not deemed necessary to further describe said supplemental contract. Gonzales did thereupon execute and deliver such lease to Stickney.

The foregoing historical statement may be simplified with relation to the matters involved in this suit by pointing out at this juncture that in the trial court Stickney expressly disclaimed any and all rights which might have accrued to him under the above described original and supplemental contracts and the two mineral leases given to him upon the land by Gonzales. The disclaimer was well taken, for Stickney flagrantly defaulted in every obligation assumed by him in those contracts, and his conduct in the premises was such as to raise serious doubt of his good faith in any of his transactions with Gonzales and his associates.

Stickney's claim is for mineral interest in the land, under deeds from John A. Pope, Jr., and from Gonzales, respectively. On November 26, 1934, Gonzales conveyed to Pope an undivided one-fourth interest in the minerals in Surveys 9, 11 and 125, and thereafter, on April 20, 1935, John A. Pope, Jr., through Bismark Pope, his partner and attorney-in-fact, in turn conveyed an undivided one-eighth interest in the minerals to Stickney. Also, on May 22, 1935, Gonzales conveyed to Stickney an undivided one-eighth interest in the minerals in Surveys 9, 11, 12 and 125, through two deeds. By those conveyances Stickney acquired, and sought to recover in this suit, an undivided one-fourth interest in the minerals in Surveys 9, 11 and 125, and an undivided one-eighth interest in the minerals in Survey 12.

With reference to those conveyances, the jury found in response to special issues:

First: That in 1932 Gonzales employed Bismark Pope, law partner of John A. Pope, Jr., as attorney for Gonzales in estate matters, agreeing to pay for his services by conveyance of mineral interests in the lands involved here; that in pursuance of that agreement and in consideration of those services Gonzales did, by deed of November 26, 1934, convey to Bismark Pope's partner, John A. Pope, Jr., an undivided one-fourth interest in the minerals in Surveys 9, 11 and 125, as hereinabove stated.

Second: That on May 22, 1935, Gonzales conveyed to Stickney an undivided one-eighth interest in Surveys 9, 11, 12 and 125, for a money consideration.

Appellants have not questioned any of the specific jury findings, by direct assignment of error, but they insist by numerous assignments of error that the court erred in not directing a verdict in their favor and for judgment non obstante veredicto, upon their motions therefor. We have concluded that the trial judge properly overruled those motions, for this was essentially a jury case, and a jury being demanded, the court properly submitted the issues of fact for their determination.

Appellants Gonzales present their appeal on five propositions of law, but those propositions encompass only two ultimate contentions, the first, stated generally, being that the contract by which appellants employed appellee to file and prosecute the suit to cancel the Vaughn B. Jones lease was fraudulent on its face, and was barratrous and in violation of Art. 430, P.C., and for these reasons unenforceable; and, second, that these transactions being between attorney and clients, the conveyances to Stickney were presumed to have been procured by his fraud, which he failed to disprove, and were therefore void and unenforceable.

In their first proposition appellants assert that the contract by which Stickney became obligated to file and prosecute the suit to cancel the Vaughn B. Jones lease was void and unenforceable as in violation of the Texas Barratry Act (Art. 430, P. C.), because Stickney solicited the contract and obtained it by promise of payment of a consideration therefor to the Gonzaleses. The proposition does not present reversible error, since appellants did not discharge their burden to elicit jury findings that Stickney solicited or promised to pay for the employment contracted for. The testimony at the most was conflicting upon those issues, and in the absence of jury findings it must be presumed that the trial court found against appellants thereon. Wichita Falls & O. Ry. v. Pepper, 134 Tex. 360, 135 S.W.2d 79.

The complaint is without force for the further reason that Stickney did not assert any right, or recover any judgment, under the objectionable contracts or upon the several leases, or either of them, executed in pursuance of the contracts; on the contrary, Stickney disclaimed as to all said rights and leases. That being so, it does not matter how or by what means or representation or devices Stickney procured the contracts, or the leases executed in pursuance thereof, for Stickney claims nothing, and disclaims everything, under those writings.

It is true that under their attack upon those contracts appellants claim that the deeds by which John A. Pope, Jr., and Gonzales conveyed certain...