Jordan v. Texas Pac. Coal & Oil Co., 5313.

• Decision Date: 02 June 1941
• Docket Number: No. 5313.,5313.
• Citation: 152 S.W.2d 875
• Parties: JORDAN v. TEXAS PAC. COAL & OIL CO. et al.
• Court: Texas Court of Appeals

152 S.W.2d 875

JORDAN v. TEXAS PAC. COAL & OIL CO. et al.

No. 5313.

Court of Civil Appeals of Texas. Amarillo.

June 2, 1941.

Rehearing Denied June 23, 1941.

Appeal from District Court, Yoakum County; Louis B. Reed, Judge.

Action by H. C. Jordan against the Texas Pacific Coal & Oil Company and others, in trespass to try title, wherein plaintiff sought to recover title and possession of an interest in certain land and for cancellation of a sheriff's deed as a cloud on title. Certain of the defendants filed disclaimers. Certain other of the defendants set up cross-actions seeking affirmative relief. From an adverse judgment, plaintiff appeals.

Affirmed.

Lawrence L. Barber, of Seagraves, and Vickers & Campbell, of Lubbock, for appellant.

Carl Rountree, of Lamesa, and Verne H. Maxwell and Watkins & Mays, all of Dallas, for appellees, Wofford Cain, Toddie L. Waynne, trustee, Rushton L. Ardrey, Fred Golding, Walter O. Caldwell, J. W. (John) Murchison, Aloco Pipe Line Co., and Producers Supply & Tool Co.

Bromberg, Leftwich, Carrington & Gowan, of Dallas, for appellee Atlantic Refining Co.

Carl Rountree, of Lamesa, and Barksdale Stevens and Vernon Coe, both of Houston, for appellees Shell Oil Co., Inc., and Shell Pipe Line Corporation.

Joe E. Childers, of Abilene, for appellees E. T. Hall, Mattie L. Payne and husband, R. L. Payne, Lurtie Hall Smith, Eula Kirtley Sanders and husband, E. A. Sanders, Miss Vera Collins, Guynemer Giguere, Chas. C. Hildebrand, Lillian L. Hildebrand, Inter-State Royalty Corporation, Ltd., Lewis T. Lohman, Montex Petroleum Corporation, George A. Nash, Alice D. Osborn, Donald C. Poussette, Rotex Oil Company, H. B. Stone, Vernon I. Weisbrod, Kendrick V. Weisbrod, Alfred J. Williams, Ruth S. Agey, H. H. Durston, Lillian S. Durston, Sabine Royalty Corporation, Mrs. Keith Newman, and Joe E. Childers.

Carl Rountree, of Lamesa, and Wm. K. Hall, of Fort Worth, for appellee Texas Pacific Coal & Oil Co.

JACKSON, Chief Justice.

This suit was instituted on April 8, 1940, by the plaintiff, H. C. Jordan, against the Texas Pacific Coal and Oil Company, the Producers Supply and Tool Company, Aloco Oil Company, Aloco Pipe Line Company, Atlantic Refining Company, Montex Petroleum Corporation, Rotex Oil Company, the Great Southern Life Insurance Company, Montecito Corporation, Shell Oil Company, Shell Pipe Line Company, Sabine Royalty Corporation and the Interstate Royalty Corporation, all of which are corporate defendants. The following individuals were also made defendants: E. T. Hall, Ethel Hall, Mattie L. Payne and husband, R. L. Payne, Lurtie Smith, a feme sole, Eula Sanders and husband, E. A. Sanders, Joe Childers, H. A. Hedberg, H. H. Durston, Lillian Durston, H. B. Stone, Ruth S. Agey, Wofford Cain, Toddy L. Waynne, Rushton L. Ardrey, Fred Golding, Walter O. Caldwell, S. E. Cone, John Murchison, J. W. Murchison, Wayne Cleveland, Donald C. Poussette, Alfred J. Williams, Alice D. Osborn, Kendrick V. Weisbrod, Vernon Weisbrod, Guynemer Giguere and Lewis T. Lohman.

On June 7, 1940, the plaintiff filed what is designated as his amended original petition, pleads an action in trespass to try title and asks to recover title and possession of an undivided one-half interest in the West Half of Section 800, Block D, Yoakum County, Texas. In addition, he pleads that a judgment obtained by W. E. Head in Cause No. 513, styled W. E. Head v. H. C. Jordan, in the County Court of Scurry County, under which the lands in question were seized and sold under execution November 4, 1913, was a nullity and that all the defendants except Ethel Hall hold title under and by virtue of the sheriff's deed made by reason of such execution sale; that such deed is void, casts a cloud on his title and should be cancelled because the County Court of Scurry County never acquired jurisdiction over H. C. Jordan, one of the alleged defendants in said Cause 513; that he was a non-resident of the State and the affidavit for citation by publication against him did not comply with the statute and the publication thereof did not constitute service that would authorize the judgment against him or the sale of his property thereunder.

The defendants the Great Southern Life Insurance Company, Wayne Cleveland, H. A. Hedberg and the Aloco Oil Company each filed disclaimers.

Ethel Hall answered, but inasmuch as she makes no complaint of the judgment rendered against her we deem it unnecessary to state her pleadings.

The other defendants, hereinafter called appellees, whether they claimed title to the surface, to the minerals or to royalties, answered by a plea of not guilty, pleaded their title specially, urged certain defenses including that of good faith purchaser for value without notice, limitation and laches. Several of the appellees also set up cross-actions seeking affirmative relief.

At the close of the testimony in compliance with a peremptory instruction the jury returned a verdict in favor of the appellees and against the plaintiff. Judgment was rendered that plaintiff, H. C. Jordan, take nothing by his suit against the defendants; that Ethel Hall take nothing by her suit and that the appellees who pleaded a cross-action recover thereon and from this judgment the appellant appeals.

W. E. Head, plaintiff, filed Cause No. 513 in the County Court of Scurry County, Texas, on November 14, 1912, against H. C. Jordan and J. B. Jordan, the defendants, on a promissory note executed by them seeking to recover a balance of $317.85 evidenced by said note. On the same day W. E. Head caused a writ of attachment to issue to Scurry County which was returned nulla bona. He thereafter caused an alias writ of attachment to be issued to the sheriff or any constable of Yoakum County and levied on Section No. 764, Block D in Yoakum County and all of Section No. 800 in Block D in said county except 200 acres out of the southeast corner thereof.

On July 10, 1913, the plaintiff obtained a judgment against the defendants for the sum of $317.85 with interest decreeing a valid attachment lien had been fixed against Section 800, Block D in Yoakum County and directing that the plaintiff have his execution subjecting the above described lands to sale in satisfaction of said judgment.

An execution was issued by the Clerk of the County Court of Scurry County and returned nulla bona and thereafter on September 17, 1913, an alias execution was issued to the sheriff or any constable of Yoakum County commanding that the officer make or cause to be made of the goods, chattels, lands and tenements of H. C. Jordan the sum of $337.85 with interest. The Sheriff of Yoakum County recites in his return on the writ that the execution reached him on the 22nd day of September, 1913; that he levied the writ on the land above described as the property of H. C. Jordan; that after properly advertising the property for sale at the court house door on the 4th day of November, A. D. 1913, the same being the first Tuesday of the month, during the legal hours he sold the property to R. H. Looney for the sum of $477.23 and executed to the purchaser of said land a sheriff's deed therefor; that after satisfying the cost he paid the balance thereof, $405.19, to W. E. Head and accepted his receipt therefor.

H. C. Jordan was married on December 11, 1907, and he and his wife, Mrs. H. C. Jordan, from whom he was divorced in 1916, occupied the South Half of Section 891 as their homestead and on August 19, 1908, acquired as additional land Section 800, Block D, the title to the West Half of which is in controversy. This section was patented to H. C. Jordan, his heirs and assigns, on March 24, 1938. Mrs. H. C. Jordan, the divorced wife of the plaintiff, appears in this record as Ethel Hall.

The appellees deraign their title from R. H. Looney, the purchaser at the execution sale under the Head judgment in Cause No. 513.

Oil was discovered on the land here involved in November, 1938, and the appellee, Texas Pacific Coal and Oil Company, holding under a lease has drilled three producing wells on the land.

The appellant, H. C. Jordan, by several assignments in his brief attacks the validity of the judgment against him in Cause No. 513 rendered on July 10, 1913, and says it is null and void inasmuch as no service was ever had on him; that the attempted service by publication was invalid, was without effect and hence the sale under such judgment and the sheriff's deed in virtue thereof passed no title to the purchaser at such sale and the appellees acquired and have no title to the property.

The judgment on the question of service contains the following recitation:

"On this the 10th day of July, A. D. 1913 came on to be heard the above entitled and numbered cause for trial and came the parties, the plaintiff in person and by his attorney, the defendant, J. B. Jordan, in person and by his attorney, and the defendant, H. C. Jordan, the duly and legally cited in terms of the law, appeared not but wholly made default, the court having appointed a- attorney ad litem to represent his interests in the subject matter of this suit and said guardian ad litem, to wit, V. M. Tyler, having filed an answer herein, came all the parties and announced ready for trial, a jury being waived all matters of fact as well as of law were submitted to the court, who after having heard the pleadings of the parties, and the evidence adduced, the argument of counsel thereon, the court finds the following facts, to-wit:

"That all parties are duly and legally cited herein to appear and answer the plaintiff's petition * * *."

In order to prove that no service of process in Cause No. 513 was had on him, the appellant offered in evidence an affidavit which was filed in said cause to secure the issuance and service of citation by publication. He claims the affidavit was insufficient to authorize the clerk to issue or the sheriff to publish such citation. He also offered in evidence the petition in No. 513, the answer...