Jones v. Gibbs

• Decision Date: 05 July 1939
• Docket Number: No. 1800-7282.,1800-7282.
• Citation: 130 S.W.2d 274
• Parties: JONES v. GIBBS et al.
• Court: Texas Supreme Court

130 S.W.2d 274

JONES v. GIBBS et al.

No. 1800-7282.

Commission of Appeals of Texas, Section B.

July 5, 1939.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit in equity by J. P. Gibbs and others against J. B. Jones, as administrator of the estate of Helen M. Jones, deceased, for extension of time to cut and remove timber conveyed to plaintiffs by defendant and intestate. A judgment for plaintiffs was affirmed by the Court of Civil Appeals, 103 S.W.2d 1018, and defendant brings error.

Reversed and remanded.

C. A. Leddy and J. S. Bracewell, both of Houston, and E. R. Berry, of Huntsville, for plaintiff in error.

Baker, Botts, Andrews & Wharton and Walter H. Walne, all of Houston, and Dean & Humphrey, and J. G. Davis, all of Huntsville, for defendant in error.

SMEDLEY, Commissioner.

The application for writ of error herein was granted because of the granting of the application in cause No. 1799—7281, J. B. Jones, administrator, v. J. P. Gibbs et al., 130 S.W.2d 265, this day decided. In that case Jones, as administrator of the estate of his deceased wife, Helen M. Jones, sued Gibbs Brothers & Company to obtain a judgment for the cancellation of the rights of the defendants under a deed by which Jones and wife had conveyed to them the merchantable pine timber on a tract of land in Walker County. The trial court's judgment in that case that Jones take nothing by his suit, rendered on June 21, 1935, was affirmed by the Court of Civil Appeals and the judgment of both of said courts is today affirmed by this court, as shown by the opinion filed in said cause No. 1799—7281.

This suit, filed August 26, 1935, while said first case was pending on appeal in the Court of Civil Appeals, was brought by Gibbs Brothers & Company against J. B. Jones as administrator. The petition alleges the substance of the timber deed of date April 30, 1923, from J. B. Jones and wife to Gibbs Brothers & Company, and particularly that part of the same giving the grantees the privilege of extending the original ten year period for removal of the timber for an additional time of five years by making payment of fifteen cents per acre per year for each year of the five year period, and alleges that, although Gibbs Brothers & Company duly made the payments for the extension for each of the years 1933 and 1934, the administrator Jones, defendant, on June 21, 1934, repudiated the contract made by the deed, forbade Gibbs Brothers & Company to cut or remove any timber from the land, and on April 28, 1935, filed the suit for termination of the rights under the deed. It is further alleged that Gibbs Brothers & Company at the time of the filing of the said suit had about three years within which they were entitled to cut and remove the timber by making the payments, but were prevented from doing so by the filing and the pendency of the suit, and had refrained from cutting the timber because of fear that they would be held liable for its manufactured value in the event the suit should be decided against them. The prayer of the petition is that the period intervening between June 21, 1934, and the date when the judgment in said suit becomes final be adjudged and decreed to be not a portion of the five year extended term, that it be adjudged that plaintiffs are not required during said period to pay the renewal rentals, and that judgment be rendered "extending the five year additional period within which they may cut and remove the timber embraced in the timber deed hereinbefore referred to by as many months and days as elapse between the 21st day of June, 1934, and the date when the judgment in the suit filed by defendant against these plaintiffs hereinbefore referred to becomes final".

After trial before the court without a jury, judgment was rendered in this cause for the plaintiffs, Gibbs Brothers & Company, substantially in accordance with the prayer in their petition. The Court of Civil Appeals affirmed the trial court's judgment. 103 S.W.2d 1018.

It conclusively appears from the evidence set out in the statement of facts that the fulfillment of the conditions for the extension of the time for cutting the timber was prevented by the act of plaintiff in error as administrator in declaring the rights of defendants in error terminated and in instituting and prosecuting the suit for...