Kendrick v. Tidewater Oil Co.

• Decision Date: 11 February 1965
• Docket Number: No. 109,109
• Citation: 387 S.W.2d 122
• Parties: Aline H. KENDRICK et al., Appellants, v. TIDEWATER OIL COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 122

387 S.W.2d 122

Aline H. KENDRICK et al., Appellants, v. TIDEWATER OIL COMPANY et al., Appellees.

No. 109.

Court of Civil Appeals of Texas, Tyler.

Feb. 11, 1965.

Rehearing Denied March 4, 1965.

Ross H. Hemphill and Michael H. Sebastian, McCulloch, Ray, Trotti & Hemphill, Dallas, for appellants.

Jack Brandon, Houston, for Tidewater Oil Co.

Wallace G. Malone, Dallas, for Texaco, Inc.

DUNAGAN, Justice.

This is a trespass to try title suit brought by appellants against Tidewater Oil Company and Texaco, Inc., appellees herein, and Nettie Hunt, A. E. Burgin, Lasca, Inc. and John J. Reynolds in which appellants sought to recover an undivided one-half mineral interest in a 73 1/2 acre tract of land in Anderson County, Texas. Appellees and the defendants, Nettie Hunt and A. E. Burgin, moved for summary judgment. The trial court granted all such motions and entered interlocutory decrees that appellants take nothing against appellees and the defendants, Nettie Hunt and A. E. Burgin. Appellants then took a voluntary non-suit against the defendants, Lasca, Inc. and John J. Reynolds, and thereupon the trial court entered a final judgment that appellants take nothing against appellees and the defendants, Nettie Hunt and A. E. Burgin. Appellants have appealed the final judgment of the trial court only insofar as it granted summary judgment in favor of appellees.

In the trial court appellants, in addition to the formal trespass to try title counts, pleaded their title specially, alleging that they were the owners of an undivided one-half mineral interest in a 73 1/2 acre tract of land in Anderson County, Texas, and that the mineral interest claimed by appellants was 'the undivided one-half (1/2) interest other than the undivided one-half (1/2) interest in said oil, gas and minerals in and under said land leased by Lou Ella Harton, Individually (and not as Community Survivor of the community estate of herself and deceased husband, Sidney Harton) to E. H. Van Patten on July 7, 1933, * * *' Appellants also alleged that the four defendants other than appellees claim to own a portion of the mineral interest in the 73 1/2 acre tract and that appellees claimed to own an oil and gas lease covering the undivided one-half mineral interest claimed by appellants 'by virtue of that certain oil and gas lease dated July 7th, 1933 from Lou Ella Harton, for herself individually and as Community Survivor of the community estate of herself and deceased husband Sidney Harton, * * *' Appellants further alleged that community administration taken out by Lou Ella Harton on the community estate of herself and her deceased husband, Sidney Harton, ceased to exist many years before Lou Ella Harton executed said oil, gas and mineral lease of July 7, 1933, because all debts of the community estate had long since been paid, and that the 73 1/2 acre tract in question was purchased with community funds.

At the hearing on the motions for summary judgment, the following undisputed facts were established:

Appellants, Aline H. Kendrick, Cecyl Harton Stanley, and Verlee S. Harton Fry, who, joined by the respective spouses of Cecyl and Verlee, were plaintiffs in the trial court, are the daughters of Sidney Harton and his wife, Lou Ella Harton. Sidney Harton died intestate on November 23, 1919, survived by his wife and these three daughters. On December 31, 1919, Lou Ella Harton, after having duly qualified, was appointed community administratrix of the community estate of herself and her deceased husband.

Both appellants and appellees claimed title to the 73 1/2 acre tract under the following conveyances and instruments emanating from R. A. Johnson and wife, Frances Johnson, who were stipulated to be the common source of title.

On or about December 6, 1919, R. A. Johnson and wife, Frances Johnson, executed a deed conveying the 73 1/2 acre tract in controversy to Alfred W. Johnson. In this deed R. A. Johnson and wife reserved a vendor's lien to secure payment of a $1,750.00 note given by Alfred W. Johnson, said note being payable one year after the date of the deed. On March 22, 1920, this note and the vendor's lien securing it were transferred to Mrs. Lou Ella Harton. At the same time the $1,750.00 note was extended to December 6, 1926. By deed dated January 30, 1927, A. W. Johnson (the same person as Alfred W. Johnson) and wife conveyed said 73 1/2 acre tract to Mrs. Lou Ella Harton. On July 7, 1933, 'Lou Ella Harton, for herself individually and as community survivor of the community estate of herself and deceased husband, Sidney Harton,' executed an oil and gas lease to E. H. Van Patten describing and purporting to cover said 73 1/2 acre tract and two other tracts of land in Anderson County, Texas. By mesne conveyances emanating from E. H. Van Patten, title to this lease became vested in appellees.

At the time said oil and gas lease of July 7, 1933, was executed, no partition or other action to terminate the powers of Lou Ella Harton had been asked for or had in the community administration proceedings.

On these undisputed facts appellees' motion for summary judgment was granted. On these same facts motions of the defendants, A. E. Burgin and Nettie Hunt, who claimed mineral interests in said 73 1/2 acre tract under mineral conveyances from Lou Ella Harton, executed in 1933 and 1934, respectively, also were granted.

Appellants' sole point of error presented to this court is that 'the trial court erred in rendering summary judgment in favor of appellees for the mineral leasehold estate in the land in this suit, because there was a genuine issue of fact raised in the pleadings, and because there were no affidavits as to payment of delay rentals or affidavits of royalty for mineral production which would keep said oil, gas and mineral lease in force after the primary term thereof.'

Appellees counter with the following points:

First, 'Appellants are barred from prosecuting this appeal because the portion of the trial court's judgment for which they took no appeal is now final, and the portion of such judgment which is now final determined that Appellants have no title to the mineral interest they are claiming in this suit.'

Second, 'The title pleaded by Appellants raised no issue as to whether Appellees' oil and gas lease remains in force, and therefore a showing that such lease remains in force was not required to sustain Appellees' motions for summary judgment.'

Third, 'The theory upon which this case was submitted in the trial court raised no issue as to whether Appellees' oil and gas lease has been maintained in force and Appellants cannot raise this issue for the first time on appeal.'

Fourth, 'The trial court was correct in granting Appellees' motion for summary judgment because the pleadings and evidence show that there is no genuine issue to any material fact and that, as a matter of law, Appellants are not entitled to recover in this suit.'

The oil, gas and mineral lease from Lou Ella Harton to E. H. Van Patten dated July 7, 1933, was for a primary term of 10 years from the date thereof.

Appellee's motion for summary judgment contained no supporting affidavit in connection with the payment of delay rentals or the payment of royalties for production under said oil, gas and mineral lease.

It is appellants' contention that the failure of appellees to attach such affidavit to their motion for summary judgment and there being no other evidence offered that the primary term of said oil, gas and mineral lease had not expired, that this became a fact issue to be determined by the trier of the facts. As hereinbefore stated, appellants brought this suit in trespass to try title to recover the undivided one-half mineral interest claimed by them in their petition. All defendants responded to appellants' petition with pleas of not guilty. Thus, there was put in issue the title to the entire one-half mineral interest claimed by appellants. In Halbert v. Green, 156 Tex. 223, 293 S.W.2d 848, the court said:

'Petitioner's general plea in trespass to try title and respondents' plea of not guilty put in issue the title to the entire 1/8th mineral interest, and the effect of the 'take nothing' judgment was, as between the parties, to divest all title to the entire interest out of petitioner, Halbert, and to vest the same in respondents Green. * * *' Also see Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226; Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490.

Appellants' petition affirmatively alleged that as between appellants and the defendants, Nettie Hunt, A. E. Burgin, Lasca, Inc. and John J. Reynolds, this one-half mineral interest was in issue and that as between appellants and appellees the mineral leasehold estate on such undivided one-half interest was in issue. The voluntary dismissal by appellants of the defendants, Lasca, Inc. and John J. Reynolds, from the suit left only appellees, Nettie Hunt and A. E. Burgin as defendants in the suit. On April 21, 1964, the trial court entered judgment that appellants take nothing by their suit against appellees and the defendants, Nettie Hunt and A. E Burgin. The effect of this judgment was to divest all title to the undivided one-half mineral interest in issue out of appellants and to vest it in the defendants, Nettie Hunt and A. E. Burgin, and to vest the oil and gas leasehold estate covering such undivided one-half mineral interest in appellees. Halbert v. Green, supra; Hejl v. Wirth, supra; Permian Oil Co. v. Smith, supra; Appellants did not appeal the trial court's judgment insofar as it adjudicated that they take nothing against the defendants, Nettie Hunt and A. E. Burgin, and such judgment that appellants take nothing against these two defendants, became final 30 days after its rendition. Rule 329b, Texas Rules of Civil Procedure. The portion of a judgment awarding a recovery to one party from which no appeal is taken is final on the appeal and all subsequent litigation. Speckels...