Luckel v. Barnsdall Oil Co., 4460.

• Decision Date: 14 June 1934
• Docket Number: No. 4460.,4460.
• Citation: 74 S.W.2d 127
• Parties: LUCKEL et al. v. BARNSDALL OIL CO. et al.
• Court: Texas Court of Appeals

Page 127

74 S.W.2d 127

LUCKEL et al. v. BARNSDALL OIL CO. et al.

No. 4460.

Court of Civil Appeals of Texas. Texarkana.

June 14, 1934.

Rehearing Denied July 19, 1934.

Appeal from District Court, Gregg County; Reuben A. Hall, Judge.

Suit by the Barnsdall Oil Company and another against G. E. Hubbard and others, wherein F. L. Luckel intervened and was made a defendant. From the adverse part of the judgment, defendants appeal.

Reversed and rendered.

Wynne & Wynne and W. A. Ray, all of Longview, and Vinson, Elkins, Sweeton & Weems and J. Hart Willis, all of Houston, for appellants.

Bramlette & Meredith, of Longview, F. V. Phipps and M. D. Kirk, both of Tulsa, Okl., Williams, Lee, Sears & Kennerly, of Houston, and Wm. Hodges, of Texarkana, for appellees.

SELLERS, Justice.

On December 18, 1918, J. G. McGrede purchased from H. C. McGrede 220 acres of land, less 1/2 acre out of the south end thereof known as the "graveyard lot," out of the Dolores Sanches H. R. survey in Gregg county, Tex. He was married at the time he acquired said land and had been married for some years prior thereto to Quessie McGrede. Of this marriage the following children were born: G. E. McGrede, Lodella McGrede, Quessie McGrede, J. R. McGrede, Walter McGrede, and J. H. McGrede. Immediately after the purchase of said land, J. G. McGrede and his wife moved on said land and continuously occupied and used the same as their homestead until the death of Mrs. McGrede, which occurred in June, 1922. After her death, J. G. McGrede and some of his children continued to live on said land and to use the same as their homestead until the spring of 1931.

By virtue of an agreement with his father, G. E. McGrede, the eldest son, remained out of school, assisted his father in working said farm and paying the balance due thereon. For his service his father agreed to give him a deed to 36 acres out of the southeast corner of said tract. This agreement was made prior to the death of Mrs. McGrede, but the deed was not executed by J. G. McGrede and delivered to G. E. McGrede until June 27, 1925, which was about three years after her death. The trial court held this agreement constituted an obligation against the community estate of J. G. McGrede and his wife, and not an obligation against the interest of J. G. McGrede solely. No complaint was made by any of the parties as to said ruling.

On May 9, 1930, J. G. McGrede, while a widower, executed and delivered to B. A. Skipper an oil, gas, and mineral lease covering the 220-acre tract, less the 1/2-acre cemetery lot and the 36-acre tract deeded to G. E. McGrede. At the time of the execution of said lease, J. G. McGrede and two of his children were living together in a house on said farm, using and cultivating the major portion of it; the remaining portion not cultivated by them being cultivated by tenants of J. G. McGrede. When Skipper obtained the lease he was well acquainted with the J. G. McGrede family, knew of Mrs. McGrede's death, that she left surviving her a large family of children, and that at least one of the children was living in the home with his father.

On September 11, 1930, Skipper assigned said lease to W. W. Lechner. Said assignment was taken in the name of Lechner, but Ray E. Hubbard had an interest therein. At the time of the delivery of said assignment to Lechner and Hubbard, Skipper advised them of the condition of the title thereto, told them that J. G. McGrede had been married, that his wife was dead and had left children surviving her. They accepted the assignment knowing the title was questionable.

On January 5, 1931, Lechner assigned to appellee Barnsdall Oil Company 84 acres of said lease off the west side of said 220 acres, and on January 24, 1931, he assigned to Houston Oil Company 25 acres of said lease described as follows: "Beginning at the S. E. corner of the West 84 acres of said tract described in assignment of lease to Barnsdall Oil Company dated January 5, 1931; thence East with S. line of said 220-acre tract to S. W. corner of G. E. McGrede's 36-acre tract; thence North a sufficient distance so that by running West to the East line of said Barnsdall 84-acre tract and South with the said Barnsdall 84-acre tract to place of beginning will contain 25 acres of land."

On January 27, 1931, Lechner executed and delivered to G. E. Hubbard an assignment covering the remaining acreage of the J. G. McGrede tract. On February 14, 1931, Lodella McGrede, having had her disabilities removed, executed and delivered to G. E. Hubbard an oil and gas and mineral lease covering her undivided interest in and to said 220-acre tract, less the 36 acres deeded by her father to G. E. McGrede. On February 11, 1931, all the other McGrede children except Walter executed and delivered to G. E. Hubbard an oil, gas, and mineral lease covering their undivided interests in said 220 acres, less the 36-acre tract of G. E. McGrede.

On March 28, 1931, J. G. McGrede having heretofore been appointed guardian of his minor son, Walter, under proper probate court orders, executed and delivered to F. L. Luckel an oil, gas, and mineral lease covering the undivided interest of said minor in and to the 220 acres, less the 36 acres of G. E. McGrede. After obtaining the conveyances from the McGrede children, G. E. Hubbard and Luckel asserted a claim to an undivided one-half interest in the 84-acre tract assigned to appellee Barnsdall Oil Company, and an undivided one-half interest in the 25-acre tract assigned to Houston Oil Company. Appellee Barnsdall Oil Company therefore brought this suit in the district court of Gregg county against appellants and others to remove cloud from its title in and to the mineral estate in the 84 acres described in its assignment.

Luckel was not made a party in appellee's original petition, but, by permission of the court, intervened, setting up his alleged interest in the two tracts in controversy. He was afterwards made a defendant in appellee's amended petition. The only questions submitted to the jury were whether appellee Barnsdall Oil Company and the Houston Oil Company were innocent purchasers for value without notice of appellants' respective lease interest. The jury found against the Houston Oil Company on said issue, but found that appellee Barnsdall Oil Company was an innocent purchaser of its lease of said 84 acres. Judgment was entered accordingly.

Appellants have perfected an appeal only from that part of the judgment awarding title to the 84-acre mineral estate to the Barnsdall Oil Company. Their contentions are: First, the uncontroverted evidence showed the appellee Barnsdall Oil Company, before it paid for its assignment covering said 84 acres of land, had knowledge of facts which in law constitute notice to it of the existence of the McGrede children and of their interest in said land; and therefore the court should have granted their motion for an instructed verdict. Second, if appellants were not entitled to an instructed verdict, the court erred in overruling their amended motion for new trial because the verdict of the jury and the judgment of the court are not supported by the law and the evidence, but are contrary to the overwhelming preponderance of the evidence.

These questions are predicated upon proper assignments of error. The Houston Oil Company filed an amended motion for new trial assigning numerous errors committed by the court in rendering judgment against it in favor of appellants. Said motion was overruled, to which action it duly excepted and gave notice of appeal, but it did not perfect its appeal by filing an appeal bond within the time required by law. It was made an obligee in the bonds filed by appellants, and by reason thereof it unquestionably has the right to appear here by a brief and insist upon an affirmance of the judgment in favor of appellee Barnsdall Oil Company, which is the only part of the judgment before this court. However, the mere fact that it is named, along with the appellee Barnsdall Oil Company, as an obligee in the appeal bonds filed by appellants, would not confer upon this court jurisdiction to consider and review its assignments of error relating to the judgment against it, as from the record it appears that it perfected no appeal from said judgment.

It is well settled in this state that a party may appeal from a portion of a final judgment which is distinct and severable, permitting the remainder of the judgment to become final. Slaughter v. Texas Life Ins. Co. (Tex. Civ. App.) 211 S. W. 350; 3 Tex. Jur. § 66, p. 131. It is likewise well established that where the judgment is divisible and severable, and an appeal as to a divisible portion thereof not affecting the interest of one of the appellees is presented, if such appellee does not perfect an appeal from the portion of the judgment affecting his interest by giving notice of appeal and executing an appeal bond, his assignments attacking the judgment against him and in favor of appellant cannot be considered. Wright v. Bott (Tex. Civ. App.) 163 S. W. 360; Gulf Pipe Line Co. v. Warren (Tex. Civ. App.) 45 S.W.(2d) 719; Booth v. Uvalde Rock & Asphalt Co. (Tex. Civ. App.) 296 S. W. 345; Hunt v. Garrett (Tex. Civ. App.) 275 S. W. 96; Texas & N. O. Ry. Co. v. Skinner, 4 Tex. Civ. App. 661, 23 S. W. 1001; Hoover v. Kearbey, 25 Tex. Civ. App. 71, 60 S. W. 782, and Munoz v. Brassel (Tex. Civ. App.) 108 S. W. 417.

Appellants object to our considering the assignments of the Houston Oil Company contained in its brief which complain of errors affecting the judgment rendered against it and have moved to strike its brief. The judgment rendered in favor of appellee Barnsdall Oil Company, from which appeal was perfected, is divisible, separate, and distinct from the judgment rendered against Houston Oil Company, and as the Houston Oil Company did not perfect its appeal by seasonably filing its appeal bond, it is believed that we are without jurisdiction to review the...