Kirby v. Houston Oil Co. of Tex., 4668
| Decision Date | 26 April 1951 |
| Docket Number | No. 4668,4668 |
| Citation | 241 S.W.2d 198 |
| Parties | KIRBY et al. v. HOUSTON OIL CO. OF TEXAS et al. |
| Court | Texas Court of Appeals |
J. R. Beck, E. E. Easterling, Beaumont, for appellants.
Blades, Kennerly, Fisher & Whitworth, Houston, B. F. Whitworth, Houston, of counsel for appellees.
On September 28, 1944, the appellants brought suit against the appellees to recover the mineral estate in and to a certain 19 acre tract of land, a part of the George W. Brooks League in Hardin County, Texas, and being a part of the W. S. Frazier 80 acre tract out of said league, being the same mineral estate involved herein, and to recover for the value of oil produced from said mineral estate from the Houston Oil Company of Texas and American Republics Corporation, who are the appellees here. Said cause was numbered 8294 and styled Mary Wall Kirby et al. v. Houston Oil Company et al., on the docket of the district court of Hardin County. The defendants in the trial court, who are appellees here, in addition to their plea of not guilty, plead improvements in good faith. On May 14, 1945, the trial court severed the issues of title from the other issues raised by the pleadings and proceeded to try the issue of title first. At the conclusion of that trial, the trial court instructed a verdict in favor of the defendants, who are the appellees here, and entered judgment in favor of the appellees for the title and possession of the mineral estate in and to the 19 acres of land involved in this present suit. The appellants here appealed from that judgment to this court. By an opinion published in 200 S.W.2d 246 this court affirmed the judgment of the trial court in said cause No. 8294. Writ of error was refused by the Supreme Court of Texas and certiorari was denied by the Supreme Court of the United States, 332 U.S. 772, 68 S.Ct. 86, 152, 92 L.Ed. 357. That portion of the cause of action asserted by the parties in the original cause No. 8294, which was severed from the issue of title, was carried on the docket of the trial court under the same style and carried the No. 8294-A. Thereafter appellants filed in Cause No. 8294-A their first amended original petition which recites at length facts upon which plaintiffs base their right of action, further alleging that by reason of the matters and facts herebefore set out, each and all of the defendants herein have held and still hold such title as is apparent of record in them to the lands in controversy in trust for these plaintiffs (appellants here). The defendants who are the appellees here, in addition to pleading not guilty and other matters as a defense, plead the judgment in Cause No. 8294 as res judicata of the issue of title to the mineral estate herein involved, and as a bar to the prosecution of Cause No. 8294-A and as estoppel by judgment, estopping appellants herein from further prosecuting this cause against appellees and from asserting a claim of title to said mineral estate. Upon motion of appellees the trial court severed the issue of res judicata and estoppel by judgment from all other issues raised by the pleadings and at the conclusion of the hearing on this issue, entered its judgment sustaining appellees' plea of res judicata and estoppel by judgment, and entered judgment that the appellants take nothing as against the appellees. The appellees made additional parties defendant in their amended pleadings in Cause No. 8294-A, but no service was ever had upon such parties. The trial court found that such parties were not necessary parties and dismissed the cause as to them without prejudice. It is from this judgment that the appellants have perfected their appeal.
While the appellants have brought forth some 14 Points of Error in their brief, we feel that the disposition of their 4th point is controlling in the disposition of this cause. This point is as follows: 'The error of the Trial Court in sustaining defendants' plea of res judicata and rendering judgment that the judgment of this court rendered and entered on May 22, 1946, in Case No. 8294 is res judicata of the cause of action asserted by plaintiffs in this Cause No. 8294-A and plaintiffs herein are estopped by said judgment to further prosecute this cause against defendants Houston Oil Company of Texas and American Republics Corporation and are further estopped to assert a claim to title to the oil, gas and mineral estate in and to the above described land and premises by virtue of the facts set forth in this Cause No. 8294-A and that plaintiffs take and recover nothing as against defendants Houston Oil Company of Texas and American Republics Corporation by this suit and that said defendants go hence without day and recover of and from said plaintiffs all costs in this cause incurred.'
The appellees answered the appellants' 4th Point by their counter-point which reads as follows: 'The cause of action asserted by plaintiffs in this suit No. 8294-A, being one that could have been adjudicated, and, in fact, one that was adjudicated, in the trial of Cause No. 8294, the judgment in Cause No. 8294 is res judicata of the cause of action asserted in this suit and the trial court properly sustained defendants' plea of res judicata and estoppel by judgment and correctly entered judgment that plaintiffs take nothing.' It is conceded by all parties as is reflected by appellants' pleadings that in Cause No. 8294 the appellants sued the appellees for the recovery of the identical mineral estate as is involved in the present suit, and further conceded that such suit was decided against the appellants; that the judgment in Cause No. 8294 decreed that the plaintiffs, who are the appellants here, take nothing as against defendants, who are the appellees here, with respect to said mineral estate and that defendants (appellants) on their cross-action recover of and from plaintiffs (appellees) title to and possession of said mineral estate. Article 7391, R.C.S., of Texas provides that: 'Any final judgment rendered in any action for the recovery of real estate shall be conclusive as to the title or right of possession established in such action upon the party against whom it is recovered, and upon all persons claiming from, through or under such party, by title arising after the commencement of such action.' Our Supreme Court in the case of Permian Oil Company v. Smith et al., 129 Tex. 413, 73 S.W.2d 490, 107 S.W.2d 564, 569, 111 A.L.R. 1152, in construing the above article of the statutes, referred to the opinion of Justice Gaines in French v. Olive, 67 Tex. 400, 3 S.W. 568, and stated the following rule: '* * * That when the plaintiff failed for any reason, whether it be due to conflict with a senior survey, outstanding title in a third party, or other lack of title in himself, the judgment left the defendant in possession of the premises; and that such possession imported title; and that title was thereby established in the defendant.' It is the contention of the appellants that the relief sought by them in Cause No. 8294-A is purely equitable relief and therefore not such relief as could have been granted in Cause No. 8294 which was limited to the question of title and therefore the judgment in the trespass to try title suit is not res judicata or estoppel by judgment against these appellants in the prosecution of this suit. In support of their contention the appellants cite many cases, including Viduarri v. Bruni, Tex.Civ.App., 154 S.W.2d 498, 501; Wilkins v. Abercrombie, Tex.Civ.App., 162 S.W.2d 445; Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471, (8) 474; Federal Life Ins. v. Martin, Tex.Civ.App., 157 S.W.2d 149 at page 152; Olive-Sternenberg Lumber Co. v. Gordon, 138 Tex. 459, 159 S.W.2d 845, (4-6); Pegues v. Moss, Tex.Civ.App., 140 S.W.2d 461, (11) 471; Lane v. Kuehn, Tex.Civ.App., 141 S.W. 363, Id., 106 Tex. 440, 167 S.W. 804; Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025, 1031; Groesbeck v. Crow, 91 Tex. 74, 40 S.W. 1028; Moore v. Snowball, 98 Tex. 16, 81 S.W. 5, 66 L.R.A. 745.
As we view this record the question here to be determined is whether the appellants by their pleadings asserted an equitable right as distinguished from title, or whether the pleadings as a whole reflect that they are seeking to recover in this suit on an equitable title to the mineral estate involved. In passing upon this question we feel that it is advisable to set out a portion of plaintiffs' amended petition which we believe to be the basis of their...
To continue reading
Request your trial