Larrison v. Walker, 5677.

• Decision Date: 04 March 1941
• Docket Number: No. 5677.,5677.
• Citation: 149 S.W.2d 172
• Parties: LARRISON et al. v. WALKER et al.
• Court: Texas Court of Appeals

149 S.W.2d 172

LARRISON et al. v. WALKER et al.

No. 5677.

Court of Civil Appeals of Texas. Texarkana.

March 4, 1941.

Rehearing Denied March 13, 1941.

Appeal from District Court, Cass County; R. H. Harvey, Judge.

Suit by Hudson Larrison and others against W. B. Walker and others to recover an interest in land. From the judgment, plaintiffs appeal.

Judgment reversed and judgment directed.

Jones & Jones, of Marshall, and Bartlett & Patman, of Linden, for appellants.

Vinson, Elkins, Weems & Francis and Thomas Fletcher, all of Houston, Newland, Cornett & Whitworth, of Linden, Baker, Botts, Andrews & Wharton, of Houston, Carney & Carney, of Atlanta, and T. D. Sansing, of Linden, for appellees.

JOHNSON, Chief Justice.

In 1865 J. N. Stone, a widower with three children, married Amanda Taylor, a widow with two children. To this union three children were born. The eight children inherited, as community property of J. N. and Amanda Stone, the land here involved, consisting of 221.44 acres (referred to in the record as 230 acres) of the Wilson Robinson Survey in Cass County. Some of the children subsequently died without issue, whereby the inheritance of Mildred Taylor, a child of Amanda Stone by her first husband, was increased to 1/8 of the whole tract, amounting to 27.68 acres undivided interest. The inheritance of Sallie Stone, a child of J. N. and Amanda Stone, was 54 acres. Sallie Stone married W. B. Walker. In 1917 W. B. and Sallie Walker acquired by deeds so reciting "the inherited interest" of the remaining heirs, except Mildred Taylor. After purchasing the undivided interests above mentioned, W. B. and Sallie Walker conveyed specific tracts off the land by deeds purporting to convey the whole title to each tract described in said deeds. The aggregate of such tracts comprised all the land, except a tract of 31 acres remaining in possession of W. B. and Sallie Walker. Said 31-acre tract is referred to as the W. B. Walker 31-acre tract. By the first of said deeds W. B. and Sallie Walker conveyed to J. S. Hall a specific tract described by metes and bounds and referred to as containing 100 acres, more or less. The second deed conveyed to H. F. Walker a tract of 40 acres, more or less, described by metes and bounds. The third deed conveyed to said H. F. Walker two tracts described by metes and bounds and estimated to contain 21 acres, more or less, and 30 acres, more or less. In turn H. F. Walker conveyed 20 acres of the land to R. Q. Long. J. S. Hall, H. F. Walker and R. Q. Long executed separate oil and gas leases to R. W. Norton covering the tracts held by each. W. B. and Sallie Walker, joined other lessors in the execution of a unitized oil and gas lease to R. W. Norton, covering the 31 acres known as the W. B. Walker 31 acres and certain other lands of such other lessors not here involved. All the above oil and gas leases assigned to United Production Corporation. Subsequently appellants, Hudson Larrison et al. (heirs of Mildred Taylor, deceased), executed and delivered to said United Production Corporation instruments ratifying and confirming the above-mentioned oil and gas leases "as though they had joined in execution of the original instruments as lessor," except as to the statements contained in the original leases to the effect that the lessors therein were the sole owners of the property described, and said ratification agreements also leased for oil and gas purposes appellants' undivided interest in all the land to said United Production Corporation upon like terms and conditions as contained in the original leases, and reserving to appellants their undivided interest in the 1/8 royalty. W. B. and Sallie Walker conveyed by mineral deeds undivided mineral interests in the 31-acre tract to divers parties. Appellants Hudson Larrison et al., filed in the District Court of Cass County cause No. 11043, a partition suit, against all parties claiming an interest in the entire tract of 230 acres, more or less. The petition alleged the facts fully, giving a complete history of the descendents of J. N. and Amanda Stone and of the several transfers of the land from the common source, including the conveyances of the specific tracts by W. B. and Sallie Walker to J. S. Hall and to H. F. Walker. It alleged that the land was of equal and uniform value acre for acre and that the plaintiffs' interest therein could be satisfied out of the 31-acre tract, and that plaintiffs had elected to take their interest in all the land out of the 31 acres, and prayed that it be so partitioned; and in the alternative, that plaintiffs recover their interest out of the land in the inverse order of alienation by W. B. and Sallie Walker. Trial of the case was to a jury. At the close of plaintiffs' testimony the court instructed a verdict in favor of defendants claiming the specific tracts conveyed to J. S. Hall and H. F. Walker and entered a decree that plaintiffs take nothing as to said defendants, and thereupon proceed with the trial as between plaintiffs and the defendants claiming an interest in the 31 acres. At the close of all the evidence in the case, and while the court was preparing his charge to the jury on the issues as between plaintiffs and the defendants as to the 31-acre tract, plaintiffs moved to take a non-suit. The motion for non-suit was granted and the cause as between plaintiffs and said last-mentioned defendants was dismissed without prejudice, November 8, 1937. On the same day appellants, Hudson Larrison et al., filed the present suit, No. 11568, in the District Court of Cass County to recover the equivalent of their interest in all the 221.44 acres out of the 31-acre tract, naming as defendants W. B. and Sallie Walker and all parties claiming interests in the 31-acre tract. In trial of the case it was agreed that the 221.44 acres of land was of uniform value, acre for acre. The case was submitted to a jury upon special issues, in response to which they found in favor of plaintiffs with respect to their heirship and inherited interest in the land. They found against defendants on their pleas of limitation. They further found in response to a special issue that defendant Mrs. Sallie Walker at the time she and her husband, W. B. Walker, executed the deeds to J. S. Hall and H. F. Walker she "intended to reserve the 31 acres as the balance of her inherited interest in the property." Plaintiffs and defendants filed motions for judgment. The court sustained the motions of both sides in part and overruled same in part, and entered a judgment reading in part as follows:

"The court being of the opinion that plaintiffs, as a matter of law, have elected to take their undivided interest in each of the several tracts going to make up in the aggregate the tract of 223 acres, more or less, out of the Wilson Robinson Headright Survey in Cass County, Texas, and known in this record as the J. N. and Amanda Stone homeplace, and that out of the 31 acres involved in this cause, that plaintiffs by such election are limited to and not entitled to recover more than 3.85 acres, and, further, it appearing to the court that the plaintiffs have heretofore acquired an undivided 10-acre mineral interest in such 31-acre tract from North Central Texas Oil Company, Inc., William B. Weiner, Jacques L. Weiner, and Marion P. Weiner, as plead in Second Amended Original Petition, but that such 10-acre mineral interest should not be credited as plead by plaintiffs in such petition against the minerals on, in and under the 3.85 acre recovery herein awarded plaintiffs in such 31-acre tract but that such undivided 10-acre mineral interest should be held by plaintiffs under such acquisition in addition to the 3.85 acres in fee awarded plaintiffs herein, and, it further appearing to the court that there is more than sufficient mineral interest in such 31-acre tract at this time remaining in the defendants, W. B. Walker and wife, Sallie Walker, to protect the recovery of 3.85 acres herein awarded to plaintiffs without in any wise disturbing the mineral interest owned in such 31-acre tract by the defendants, Max Rude, M. Rude, Harry Greenburg, Phillip Blatt, Sandrock Royalty Company and A. J. McCook, so that the motion of such defendants for judgment should be sustained and that the motion of plaintiffs for judgment should be sustained as to the interest of 3.85 acres and that the motion of W. B. Walker and wife, Sallie Walker, for judgment should be overruled insofar as necessary to permit a recovery by plaintiffs of 3.85 acres, and sustained otherwise; it is accordingly ordered, adjudged and decreed:

"Paragraph I. That plaintiffs * * * recover of defendants W. B. Walker and wife, Sallie Walker, an undivided interest of 3.85 acres in and to * * * the 31-acres more or less.

"Paragraph II. That plaintiffs take nothing by reason of their suit against the defendants Max Rude, M. Rude, Harry Greenburg, Phillip Blatt, Sandrock Royalty Company and A. J. McCook. * * *

"Paragraph III. Except as decreed in paragraph I hereof, that plaintiffs * * * take nothing against defendant W. B. Walker and wife, Sallie Walker * * *.

"Paragraph IV. That the acquisition by plaintiffs of an undivided 10-acre interest in the oil, gas and other minerals on, in and under the above described (31 acres) from North Central Texas Oil Company, Inc., Wm. B. Weiner, Jacques L. Weiner, and Marion P. Weiner, be and the same is hereby ratified and confirmed in plaintiffs, to be held by them in addition to the interest awarded them by the decree in paragraph I hereof.

"Paragraph V. That the recoveries awarded plaintiffs * * * in paragraphs I and IV of this judgment shall not be in any manner affected by the decrees contained in paragraphs II and III of this judgment."

Expressed in other words, the judgment awards recovery by the several parties of undivided interests in the 31 acres as follows: To plaintiffs Hudson Larrison et al., 3.85 acres surface and minerals, and the...