MacDonald v. Follett, 11729.

• Citation: 193 S.W.2d 287
• Decision Date: 28 February 1946
• Docket Number: No. 11729.,11729.
• Parties: MacDONALD et al. v. FOLLETT et al.
• Court: Court of Appeals of Texas

Page 287

193 S.W.2d 287

MacDONALD et al. v. FOLLETT et al.

No. 11729.

Court of Civil Appeals of Texas. Galveston.

February 28, 1946.

Rehearing Denied March 28, 1946.

Appeal from District Court, Brazoria County; M. S. Munson, Judge.

Consolidated actions by Lewis H. Follett and another against R. D. MacDonald and others. From judgment awarding the plaintiffs against the defendants undivided halves of the 1/32 overriding royalties, each, in two groups of mineral leases, the defendants appeal.

Affirmed.

W. J. Howard, Sewell, Taylor, Morris & McGregor, and Merrill & Scott, all of Houston, and A. R. Rucks, of Angleton, for appellants.

Follett, Henderson & Davis, Floyd Enlow, and Alton C. Arnold, all of Angleton, for appellees.

GRAVES, Justice.

This appeal is from a judgment of the district court of Brazoria County in consolidated causes Nos. 28,765 and 28,998, entered in part on a jury's verdict in response to special issues and in part upon the court's independent findings, awarding the appellee-Folletts against the appellants-MacDonalds undivided halves of the 1/32 overriding royalties, each, in two groups of mineral leases on Brazoria County lands:

(1) What was known as the two Mueller 570-acre leases, and (2) 13 additional mineral leases, on Brazoria County lands; the suits so consolidated were No. 28,765, styled Follett et al. v. MacDonald et al., involving such overriding royalties on the Mueller two leases upon the 570 acres;

And Suit No. 28,998, likewise styled Follett et al. v. MacDonald et al., covering the 13 additional mineral leases on other lands in the vicinity of Old Ocean Lake in that county, obtained in the name of J. L. Poutra, his secretary, by MacDonald between December 20, 1933, and November 28, 1934.

The litigation thus merged into the consolidated cause now at this bar for review, in so far as it applied to the two Mueller leases, was formerly disposed of by this court by judgment rendered November 14, 1943, reported in MacDonald et al. v. Follett et al., 175 S.W.2d 671, and by the Supreme Court in its judgment of affirmance of this court's action, on April 19, 1944, reported in MacDonald et al. v. Follett et al., 142 Tex. 616, 180 S.W.2d 334.

Both this court and the Supreme Court, in those opinions, made full statements of the issues involved in the controversy over the Mueller leases as then before them, hence no further statement here is necessary.

This court upon the former appeal, in so far as is now material, reversed and remanded the cause to the trial court upon a holding that the pleadings and evidence raised an issue of fact for the jury over whether or not a relation of trust and confidence so existed between Follett and MacDonald at the time MacDonald took in his own name alone what are known as the 1938 top (or renewal) leases, under which Follett was entitled to share equally with him in the overriding royalties involved; that judgment, in its cited review thereof, was affirmed by the Supreme Court.

Indeed, under the Supreme Court's opinion, the only issue left between the parties as to the two Mueller leases was one of fact as to whether MacDonald had been so under a relationship of trust and confidence toward Follett in respect to the 1937 leases (fully described in the opinion), which was carried into the subsequent 1938 top leases. See 142 Tex. 616, 180 S.W.2d 334, pages 338, 339, paragraphs 8, 9, 10 and 11.

Wherefore, this court's conclusion on the present appeal, in so far as affects those two Mueller leases, is that, if upon the trial of this consolidated-cause that one fact-issue so determined to be left over by the Supreme Court on the former appeal was this time properly submitted to and found by the jury in the Follett's favor, then the judgment for them for the one-half undivided interest in the Mueller leases should be affirmed.

In other words, such judgment of the Supreme Court is the law of this case on that branch of it, and cannot be overturned here: 26 Tex.Jur. 49 and 58, Judgments, Sec. 369 and 374; Frankland v. Cassady, 62 Tex. 418; Walgreen-Texas Co. v. Shivers, Tex.Civ.App., 169 S.W.2d 271; 3 Tex.Jur. 1340, Appeal and Error, Sec. 941; Stanolind v. State, 136 Tex. 5, 145 S.W.2d 569, 570 middle.

The trial court submitted its special issues 1-3 inclusive, as embodying that question, and in so doing, tracked almost literally the Supreme Court's holding that if these three detailed inquiries were answered in Follett's favor, he would be entitled to recover, to-wit:

"(1) If MacDonald agreed with Follett that he would take the matter of the renewal up with the oil companies, and

"(2) That if he procured a proposition of renewal from them would communicate with Follett, and, further,

"(3) If in that connection the parties disclosed their purpose to renew the leases so as to continue their overriding royalty in force."

All three issues were answered in appellee's favor, on what this court finds to have been sufficient evidence.

That result accordingly ended the controversy as concerned the Mueller leases.

Turning to what has been termed "the 13 additional leases," with which the district court suit No. 28,998 had to do, and which were not involved in the former appeal herein, the record shows, as indicated supra, that MacDonald procured these leases in the period between December 20, 1933 and November 28, 1934, during which time his agreement to share equally the overriding royalties on leases obtained by them with Follett was found by the jury to be in effect; it seems that these 13 leases, covering mineral interests in the Charles Breen, Polly and Chance, and the Imla Keep leagues in Brazoria County, were taken in the names of Harrison and Abercrombie; that Harrison and Abercrombie later, by an instrument dated January 29, 1937, conveyed to appellant MacDonald the 1/32 overriding royalties on those particular 13 additional leases.

So that, the trial court held that a question of fact was likewise raised under the pleadings and evidence as to whether or not the same agreement to share overriding royalties obtained by either of the parties and the same relation of confidence and trust did not also permeate the transactions of appellant MacDonald in so obtaining and disposing of those 13 additional tracts; it, therefore, submitted like inquiries to the jury as it had done under issues 1 to 3 supra, with reference to the Mueller leases, in its further special issues 4 to 22, inclusive, with reference to the additional 13 leases, and in...