Kirby Petroleum Co. v. Houk

• Decision Date: 12 February 1932
• Docket Number: No. 9623.,9623.
• Citation: 51 S.W.2d 416
• Parties: KIRBY PETROLEUM CO. v. HOUK et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

51 S.W.2d 416

KIRBY PETROLEUM CO. v. HOUK et al.^*

No. 9623.

Court of Civil Appeals of Texas. Galveston.

February 12, 1932.

Dissenting Opinion February 23, 1932.

Rehearing Denied May 26, 1932.

On Motion to Correct Opinion and for Rehearing June 14, 1932.

Error from District Court, Chambers County; Thomas B. Coe, Judge.

Action by R. W. Houk and others against the Kirby Petroleum Company. Judgment for plaintiffs, and defendant brings error.

Reversed and rendered.

Pleasant F. Graves, of Houston, for plaintiff in error.

A. D. Dyess, of Houston, E. B. Pickett, Jr., of Liberty, and Stewart & De Lange and A. J. De Lange, all of Houston, for defendants in error.

PLEASANTS, C. J.

This is an action of trespass to try title brought by appellees, defendants in error, against appellant, plaintiff in error, to recover title and possession of a tract of 5 acres of land, a part of the Henry Griffith league in Chambers county. Plaintiffs' petition is in the statutory form for action of trespass to try title, and sufficiently describes the 5 acres of land for which they sue. The defendant answered by a general demurrer, general denial, and plea of not guilty, and specially pleaded limitation of three, five, ten, and twenty-five years. Upon the trial in the court below with a jury the court only submitted five questions to the jury, which will be hereafter shown, and upon return of the verdict in response to these questions, judgment was rendered in favor of the appellees for the 5 acres of land claimed by them.

The following facts are disclosed by the record: D. J. Lawrence and wife, A. M. Lawrence, are the common source of the title under which both parties claim the land. On January 16, 1905, D. J. and A. M. Lawrence conveyed to appellee R. W. Houk, for a recited consideration of $1, a tract of land described as follows: "Beginning at the southwest corner of the Daniel J. Lawrence 350-acre home tract in the Henry Griffith league in said Chambers County, Texas, being the same land conveyed to Daniel Lawrence by B. F. Wilburn and H. Wilburn; thence, easterly along the south line of said 350-acre tract to a point south of the southwest corner of the C. E. Lawrence 50-acre tract in said 350-acre tract; thence, north far enough so that a line run westerly parallel with the south line of said 350-acre tract to the west line of same; thence, to place of beginning, will contain five acres of land; thence, westerly parallel with the south line of said 350-acre tract to the west line of same; thence, southerly along the west line of same to the place of beginning, containing five acres of land."

This deed was filed for record in the office of the county clerk of Chambers county on September 6, 1909, and was duly recorded in the deed records of the county. Thereafter by direct or mesne conveyance from Houk, the other appellees acquired certain undivided interests in this land, and together with R. W. Houk have and hold the title so acquired from Lawrence unless such title has been lost by the adverse possession and claim of appellant. The Old River Company, a rice farming corporation, on December 29, 1921, conveyed to appellant "all the mineral rights and estates (less a reserved 1/32 royalty)" in several tracts of land in the Henry Griffith league, one of which, a tract of 150 acres, includes the 5 acres in controversy. This deed was filed for record on February 27, 1922, and duly recorded in the deed records of Chambers county.

On December 6, 1923, the Old River Company, by deed filed for record on December 17, 1923, and recorded in the deed records of the county, conveyed to appellant Kirby Petroleum Company the 150-acre tract described in the mineral deed above mentioned and also the 1/32 royalty interest reserved in the mineral deed. After its purchase from the Old River Company the appellant in January, 1924, took possession of the 150-acre tract of land and has since that time held exclusive adverse possession, using, occupying, and cultivating the same and paying all taxes thereon as they became due for the five years next succeeding its purchase of the land. This suit was filed October 25, 1929. Mr. R. W. Houk testifies in substance that after he was informed in 1921 that the Old River Company was in possession of the 5-acre tract of land or at least a part of it and might be claiming it by limitation, he went to Dr. Collier, the president of the Old River Company, to learn if the company would claim the land, and that Dr. Collier stated to him that the Old River Company had not and would not claim the 5 acres by limitation, and that he (Houk) then told Dr. Collier that it would be agreeable for the Old River Company to continue to use the land if it would not claim it by limitation and Collier agreed to hold the land with that understanding, and would send Houk a written memorandum of the agreement, and Houk left his deed with Collier to enable him to prepare the written memorandum. Dr. Collier fully corroborated Mr. Houk as to the substance of this verbal agreement. He further testified:

"I have seen Mr. Houk frequently all these years, occasionally, but I never had any other conversation with him about it until since they have been drilling down there. From the time he left that deed with me until the actual controversy arose about the rights there some time last year, I had never indicated that my attitude toward him and his title was any different than what I said in that conversation. Whatever I said in that conversation expressed my attitude, and that remained my attitude towards him until now."

"Nothing occurred that indicated that the Old River Company's attitude with reference to this claim was different from what I said my personal attitude was; there has been nothing occurred because I just put the deed away and forgot about it. I was president of the Old River Company. * * * I am sure that he knew I was president of the company. I am the man that he would have gone to to find out about an affair of this kind."

The trial court submitted the following special issues to the jury, which were answered as shown under each issue:

"Question No. 1. Did D. J. Lawrence ever claim as his own the five-acre tract of land in controversy after he executed the deed of date January 16, 1905, whereby he conveyed to R. W. Houk said tract of land? (Answer `Yes' or `No,' as you find the fact to be.) Answer: `No.'"

"Question No. 2. If you answer `No' to the foregoing question, then you need not answer the next succeeding question No. 2, but if you answered `Yes' to said question No. 1, and only in that event, then answer the following question: During what period of time did D. J. Lawrence claim as his own the said five-acre tract of land? (In answering this question, you will give the date when such claim, if any, began and when it ended.) Answer: Not answered."

"Question No. 3. Did George W. Collier, on the occasion of Houk's visit to his office, say substantially to Houk that he (George W. Collier) and the Old River Company had not claimed and would not claim by limitation the said five-acre tract of land? (Answer `Yes' or `No,' as you find the fact to be.) Answer: `Yes.'"

"Question No. 4. Did R. W. Houk, on the same occasion, say substantially to George W. Collier that it would be agreeable to Houk for the Old River Company to continue to use the said five-acre tract of land if said company would not claim the land, and did George W. Collier, upon that occasion, agree to act in accord with that understanding and say that he would send Mr. Houk a written memorandum or statement to that effect? (Answer `Yes' or `No,' as you find the fact to be.) Answer: `Yes.'"

"If you have answered `Yes' to either special issues No. 3 or 4, and only in that event, you will answer the following:

"Question No. 5. Did the conversation referred to in the preceding questions Nos. 3 and 4, between Mr. Houk and Dr. Collier, occur in 1921 or 1923? (Answer by naming the year.) Answer: `1921.'"

At the request of plaintiff in error the trial court filed the following findings of fact and conclusions of law:

"Findings of Fact.

"(1) I find from the undisputed evidence that the defendant, Kirby Petroleum Company, did not have any actual notice or knowledge of the alleged tenancy relationship or of the conversation or agreement inquired about in this question until some time in the latter part of the fall of 1929.

"(2) In answer to question No. 2, I find from the undisputed evidence that the defendant first had actual notice or knowledge that plaintiffs were claiming the land sued for herein, or an interest therein, in the latter part of the fall of 1929, and that at the same time defendant first received actual notice of the deed in question. I further find from the undisputed evidence that the abstracts of title examined by the defendant in connection with the conveyance to it of said property by Old River Company in 1923, as well as supplemental abstracts thereafter obtained and examined by it covering said property, did not contain the said deed from D. J. Lawrence and wife to R. W. Houk, or any of the other instruments in plaintiffs' chain of title, although said deed to Houk, executed and delivered in 1905, was duly filed for record in the Deed Records of Chambers County, Texas, in 1909, and that, therefore, defendant had constructive notice of said deed notwithstanding the failure of the abstractor to include the same in defendant's abstract of title.

"(3) I find from the undisputed evidence that the defendant established five years limitation title under the statute to the land in controversy by virtue of its own acts following said deed to it from Old River Company, but for the fact that the jury found in answer to special issues No. 3 and No. 4 in the main charge of the court that the possession of Old River Company, the defendant's grantor, was that of a tenant and was permissive and not adverse to plaintiffs, such finding...