Lake v. Reid

• Decision Date: 06 November 1952
• Docket Number: No. 6607,6607
• Citation: 252 S.W.2d 978
• Parties: LAKE et al. v. REID et al.
• Court: Texas Court of Appeals

Page 978

252 S.W.2d 978

LAKE et al. v. REID et al.

No. 6607.

Court of Civil Appeals of Texas, Texarkana.

Nov. 6, 1952.

Lasseter, Spruiell, Lowry, Potter & Lasater, Tyler, for appellant.

Falvey & Painter, Longview, for appellee.

LINCOLN, Justice.

This appeal is from an order of the District Court of Rusk County, overruling pleas of privilege separately filed by appellants P. G. Lake, Trustee, and F. M. (Frank) Reid. Appellants make the following statement of the nature of the suit which the appellees concede to be correct: 'Mrs. V. E. Reid was the owner of a 205-acre tract of land in Rusk County, Texas, and on her death such land descended to her heirs. Three of said heirs, viz: Frank (F. M.) Reid, Jim A. Reid and Lillie Mae Reid Wooley, (who owned an undivided 3/7ths interest in the property) executed a surface lease to the appellant, P. G. Lake, Trustee, covering the lessors' interest in 2 acres out of the 205-acre tract. This 2 acres adjoins a small tract of land known as the White cemetery tract, which is no part of the 205 acres and none of the Reid heirs own any interest in said cemetery lot, but P. G. Lake, Trustee, holds an oil and gas lease on said cemetery lot. P. G. Lake, Trustee, entered upon the 2-acre tract under the above-mentioned surface lease and drilled a directional oil well. The well is surfaced on the 2-acre tract but bottomed under the cemetery lot. P. G. Lake, Trustee, is not using all of the 2 acres covered by the surface lease.

'The plaintiffs in this case are some of the Mrs. V. E. Reid heirs who did not execute the surface lease and they sue the three lessors and P. G. Lake, Trustee, the Lessee, in Rusk County, Texas. P. G. Lake, Trustee, and F. M. Reid and wife, Lela Reid (two of the lessors in the surface lease) filed pleas of privilege to be sued in Smith County, Texas, and this appeal is from the trial court's order overruling both of these pleas of privilege.'

The nature of plaintiffs' suit is set forth in the following paragraphs of their petition:

'II. That heretofore on, to-wit, about the 6th day of March, A. D. 1950, the defendant, P. G. Lake, Trustee, wrongfully entered into possession of said property and ousted the plaintiffs therefrom, then and there claiming to be entitled to the exclusive possession thereof, openly asserting said claim, of all of which said defendant ever since said time has possessed and occupied said property exclusively and appropriated the rents and revenues and value thereof to his individual use, denying all rights therein to these plaintiffs; that the reasonable rental value of said property for said time is the sum of $350.00 per month; that the defendant, P. G. Lake, Trustee, though often requested has always refused and and yet refuses to pay the same or any part thereof, to these plaintiffs great damage.

'III. In the alternative, plaintiffs would show that on or about the 6th day of March, 1950, defendants Frank Reid, Jim A. Reid and Lillie Mae Wooley were then and there in lawful possession of said property as cotenants with plaintiffs and the other defendants as set out above, these plaintiffs not being in actual possession thereof and on said date the aforesaid three defendants entered into a lease agreement with defendants P. G. Lake, Trustee the above described two acres of land and collected from said defendant large sums of money the exact amount of which these plaintiffs do not know but which on information and belief, they allege to be as follows: $45.00 per month to be paid by P. G. Lake, Trustee, to Lessors as follows: F. M. Reid and wife, Lela Reid, $15.00, Jim A. Reid, $15.00, Lillie Mae Reid Wooley, $15.00. Plaintiffs are further informed that defendant Jim Reid received an advance rental of $800.00 upon the execution of such lease aforesaid; that said defendants aforesaid have appropriated to their individual use the said rents and the sums so received for same and have denied the plaintiffs rights therein and have refused to pay them the same or any part thereof, to their great damage.

'IV. Pleading further in the alternative, plaintiffs would show that defendant, P. G. Lake, Trustee, on or about March 6, 1950, entered into an agreement with Jim A. Reid, defendant herein, agreeing that he, the said P. G. Lake, Trustee, would secure a lease from plaintiffs as well as the remaining heirs of Mrs. V. E. Reid deceased, and pay them the same amount of monthly rental of $15.00 per month that F. M. Reid, Jim A. Reid and Lillie Mae Reid Wooley were to receive under the lease agreement entered into by said defendants, but that said defendant, P. G. Lake, Trustee, has wholly failed and refused to comply with such agreement aforesaid.'

The prayer of the plaintiff is for judgment 'against the defendants and each of them, jointly and severally, for such sums as may be found to be due and owing to plaintiffs and that plaintiffs have judgment establishing their title to said undivided interest in said land and establishing their rights of possession thereof as co-tenants, that they have personal judgment against the defendant P. G. Lake, Trustee, for the value of the use and rent of said property from and after March 6, 1950, and in the alternative that they have personal judgment against the defendants, F. M. Reid and wife, Lela Reid, Jim A. Reid and Lillie Mae Reid Wooley, jointly and severally, for their undivided interest in the value of the use and rent of said property from and after said date and for costs of court and such other relief at law and in equity to which plaintiffs may show themselves justly entitled and for which they will ever pray.'

The appellees, upon whom the burden rests, Rules 86-89, Texas Rules of Civil Procedure; Klein v. Sibley, Tex.Civ.App., 203 S.W.2d 239, assert venue is maintainable in Rusk County under Subdivisions 4, 9, 14 and 29a of Article 1995, R.S. of Texas, Vernon's Ann.Civ.St. art. 1995, subds. 4, 9, 14, 29a. It is always necessary in passing upon a plea of privilege to determine the nature or character of the suit. The pleadings must be examined in their entirety in order to determine the principal right asserted and the relief sought. The venue is determined by the facts of the transaction and not by the name given to it nor the form in which the plaintiff has cast his petition. 43 Tex.Jur., p. 707, Sec. 4. Conclusions may be expressed in pleadings, but they must be read in connection with all other allegations and examined in their entirety in order to find out what principal right or rights are asserted.

We will consider first whether plaintiffs below may maintain venue in Rusk County under Subd. 14 of Art. 1995, R.S. of Texas, providing that suit must be brought in the county where the land or a part thereof may lie, if such suit is (1) for the recovery of lands, or (2) damages thereto, or (3) to remove incumbrances upon the title to land, or (4) to quiet title to land, or (5) to prevent or stay waste on lands. To maintain venue in the county of suit under Exception 14 as against a plea of privilege, the plaintiffs must show that the nature of the suit concerns land in one or more of the five particulars set out above, and that the land or a part thereof is in the county. It is not necessary, as in some other exceptions to exclusive venue, to show by proof that a cause of action in fact exists. 43 Tex.Jur., p. 819, Sec. 90; Id. p. 852, Sec. 119; Allison v. Yarborough, Tex.Civ.App., 228 S.W.2d 930; Pickens v. Harrison, Tex.Civ.App., 231 S.W.2d 812; Cox v. Palacios, 188 S.W.2d 688; First Nat. Bank v. Guyer, Tex.Civ.App., 40 S.W.2d 212; Dees v. McDonald, Tex.Civ.App., 36 S.W.2d 301; Smith v. Abernathy, Tex.Civ.App., 6 S.W.2d 147 (C.C.A.). The court in such case may decline consideration of any question of liability by way of proof. Pickens v. Harrison, supra.

The nature of the suit must be determined solely from the petition, and is a question of law. Klein v. Sibley, supra; Smith v. Abernathy, supra; First Nat. Bank v. Guyer, supra; Dees v. McDonald, supra; 43 Tex.Jur., p. 862, Sec. 119. In this case the proof showed by stipulation that the land is in Rusk County. It remains to determine from the petition the nature of the suit.

Paragraph numbered II of the petition is claimed by appellees to be in trespass to try title. In a general way that may be true as to appellant Lake, Trustee, only. The allegations relate to his possession only. The date of his entry is alleged to have been March 6, 1950. By succeeding allegations appellees show the source of Lake's claim and the basis of appellant Reid's claim. It is clear that the primary purpose of plaintiff's suit was to require appellants to pay them rents for use of the 2 acres described. Lake's possession rests upon the allegations in the third and fourth paragraphs of the petition, which paragraphs amount to a pleading of Lake's title and the title of all the joint owners. This calls for a construction of the pleading in keeping with the well established rule that if the primary purpose of the suit is not for the recovery of land or for damages thereto, then venue cannot be maintained in the county where the land lies, under Exception 14 of the venue statute. Assuming that the second paragraph is complete as an action of trespass to try title, the specific allegations in other portions of the petition must control on the question. 41 Tex.Jur., p. 562, Sec. 83; Smith v. Hall, 147 Tex. 634, 219 S.W.2d 441; Allison v. Yarborough, Tex.Civ.App., 228 S.W.2d 930; Klein v. Sibley, Tex.Civ.App., 203 S.W.2d 239; Miller v. Howell, Tex.Civ.App., 234 S.W.2d 925.

The prayer for relief in plaintiffs' petition asks, among other things, for judgment establishing their title to an undivided interest in the land and their rights of possession as cotenants. 'The prayer, however, has no bearing on the question of whether the petition reveals an action for the recovery of land. The nature of plaintiff's action is not determined by the wording of...