Mauldin v. American Liberty Pipe Line Co.

• Decision Date: 03 November 1944
• Docket Number: No. 13537.,13537.
• Citation: 185 S.W.2d 158
• Parties: MAULDIN et al. v. AMERICAN LIBERTY PIPE LINE CO. et al.
• Court: Texas Court of Appeals

185 S.W.2d 158

MAULDIN et al. v. AMERICAN LIBERTY PIPE LINE CO. et al.

No. 13537.

Court of Civil Appeals of Texas. Dallas.

November 3, 1944.

Rehearing Denied January 5, 1945.

Appeal from District Court, Dallas County; Wm. M. Cramer, Judge.

Bill of review by H. C. Mauldin and another against American Liberty Pipe Line Company and others, to set aside a judgment, wherein F. A. Perrenot and others intervened and filed a cross-action adopting all allegations in plaintiffs' petition. From a judgment granting defendants' motion to dismiss, plaintiffs appeal.

Judgment reversed and cause remanded.

A. C. Scurlock, of Dallas, representing H. C. Mauldin and Buda Mauldin, appellants.

Lester Whipple, of San Antonio, representing Mary Perrenot et al., defendants claiming under F. G. Perrenot, deceased.

Watkins & Mays and Alvin H. Lane, all of Dallas, and William L. Evans, of Fort Worth, for appellees.

BOND, Chief Justice.

This suit is a bill of review to set aside by direct attack a judgment entered in a district court of Dallas County, Texas, on September 19, 1936; in alternative to recover certain proportional title and possession of an undivided one-fourth (1/4) interest in an oil and gas lease and profits therefrom; and, incidentally, to establish an accounting and an appointment of a receiver. This bill was originally instituted on January 17, 1939, by H. C. Mauldin and wife, Buda Mauldin, in collaboration with F. A. Perrenot, Lester Whipple, Fannie G. Morgan, Nancy Fritz Moon and husband, A. L. Moon, who were made defendants (afterward intervening), setting up their respective interests in the lease, and, in cross action, adopted all allegations in plaintiffs' petition. During the pendency of the suit, F. A. Perrenot died, and his heirs were substituted parties to the action. The defendants, Whipple, Morgan and the Moons, claim under assignments from Perrenot; the other defendants (appellees herein) claim under the judgment sought to be set aside. In limine, appellees filed motion to dismiss the bill, directing the motion to plaintiffs' pleadings as well as the pleadings of the intervening defendants claiming under Perrenot, alleging that all such pleadings are insufficient to set aside the judgment, and that the defendants (appellees), being the owners of the lease under regular chain of title, were entitled as a matter of law to have the judgment sustained. The court granted appellees' motion, dismissed the suit, and refused appellants' request to further amend their petition.

In sustaining motions to dismiss on demurrers or exceptions, the rule is settled in this state that pleadings are taken as true, except as they are negatived by the unquestioned records in prior suits, or by records of unquestioned facts of which the court may take judicial cognizance. Pleadings contrary to uncontroverted records are taken as mere conclusions of the pleader. Thus it will be seen that the question here presented for decision is whether all of appellants' and intervenors' allegations, when taken together and not negatived by uncontroverted records, state a cause of action. Before detailing plaintiffs' and intervenors' pleadings, the surrounding uncontroverted records pertaining to this controversy, and of which the trial court may well have taken judicial notice in passing on the motion to dismiss, should be related. Such records show:

In 1930, Mesdames Virginia Sanders, J. M. Stinnette and Geo. E. Light entered into a verbal agreement to purchase for their joint use and benefit the oil and gas lease involved in this suit; each agreeing to pay $50 on the purchase price and have an equal proportional interest therein; Mrs. Sanders was to negotiate and consummate the transaction, pay the purchase price, take title in her name as a matter of convenience, and, after the consummation, the two other ladies were to pay their proportionate part of the consideration. This agreement was carried out as contemplated, consideration paid as agreed, and title to the leasehold taken in name of Mrs. Sanders. At that time the real estate involved was in nonproducing oil territory of the afterwards known Great East Texas Oil Field, designated in the records as "wild cat".

On April 17, 1931, Mrs. Virginia Sanders, joined by her husband, J. A. Sanders, made and entered into a written agreement with F. A. Perrenot, H. C. Mauldin and wife, Buda Mauldin, for development of the leasehold for oil and gas. In that agreement Mrs. Sanders and her husband conveyed title in the lease to Perrenot and the Mauldins upon condition that the grantees would drill an oil well on the leasehold premises without cost or expense to the grantors; and, in event oil and gas, or either of them be produced therefrom in paying quantities, the grantees would pay to the grantors $15,000 in cash, payable out of one fourth (1/4) of the first proceeds of oil and gas produced and sold from the lease premises, and one half (1/2) of all other profits derived from the operation of all wells drilled on said lease. Perrenot and the Mauldins entered into this agreement with Sanders without knowing of any trust estate held by them for the use and benefit of Stinnette and Light. The importance of this conditional conveyance makes it advisable to quote its salient terms. This instrument evidences:

"That F. A. Perrenot, and H. C. Mauldin, and wife, Buda Mauldin, hereinafter called party of the first part, of Bexar County, Texas, and Mrs. Virginia Sanders, joined by her husband, J. A. Sanders, hereinafter called parties of the second part, of Dallas County, Texas, have contracted and agreed with each other as follows:

"1. Party of the second part represent that they are the owners of the mineral estate, including oil and gas thereon, within, upon and under that certain piece, parcel or tract of fifteen (15) acres of land, more or less, same being a part of an original grant of land in the W. H. Castleberry Survey, situated in Gregg County, Texas, said fifteen (15) acres of land, more or less, being described by metes and bounds as follows: A part of a section one hundred seventy (170) acres out of said survey, as described in an oil and gas lease from J. B. Doby and wife and R. W. Calloway and wife to W. W. Lechner, which lease is recorded in Vol. 62, pages 49-51, in the Deed Records, of Gregg County, Texas, the part of said one hundred seventy (170) acre tract affected hereby being the north fifteen (15) acres of the north seventeen and one-half (17½) acres of the West twenty-seven and one-half (27½) acres of the east one half of the above described one hundred seventy (170) acre tract.

"2. The first party being desirous of obtaining the title to said lease, the second parties agree to convey it to him upon the following terms and conditions: The first party may enter into possession thereof and they hereby contract and agree to drill a well for oil on said land, designated herein as `first well', at such point thereon as may be selected by party of the first part, to the woodbine sand, unless oil is found thereby at a shallower depth, and to that end to have a derrick thereon within thirty (30) days from date hereof, and to begin drilling operations thereon within sixty (60) days from this date, same to be so done without cost or expense to parties of the second part; performance of these terms are conditions precedent to any liability of the second parties.

"3. Upon the completion of such `first well,' and in the event oil and gas or either is produced therefrom in paying quantities, and when and as same or either is sold, first party agrees to pay to second party the sum of $15,000.00 out of one fourth of the first proceeds thereof, and as such proceeds accumulate and to authorize the purchaser or purchasers of such oil or gas to pay such sums directly to the second party, and the balance of such proceeds, or so much thereof as may be required by party of the first part, shall be and remain available to, and shall be payable to or on the order of, party of the first part for the purpose of and in the drilling of other well or wells on said land by or under the supervision of party of the first part, and party of the first part shall have the right to drill other well or wells on said land to the extent expedient and authorized by law, and therein to use and expend so much of said balance of such proceeds as may be proper and necessary. When and as and to the extent said balance of such proceeds or any part of same is not necessary or required by party of the first part in and for the drilling of such other well or wells, one half (1/2) of such excess shall then be paid to party of the first part as further consideration for the purchase hereof.

"4. When said `first well' has been completed as herein provided, and in the event oil and gas or either is produced therefrom in paying quantities, the title to said mineral estate on said land now owned by party of the second part shall thereupon vest, and same is in that event conveyed by party of the second part to party of the first part, but with the reservation that first party shall in turn pay to second party a sum equal to one half of all profits received by him from the operation of said wells, as same are received.

"5. Party of the second part, or either of them, either by themselves or authorized agent or representative, shall at all reasonable times have access to the record memoranda or report of the log of any well or wells drilled hereunder and other books, records and memoranda made or kept by party of the first part concerning or in any way pertaining hereto.

"6. No partnership is formed by the execution of this agreement, the same being intended as a conditional contract for the assignment of the lease mentioned, and it is expressly understood that the second parties retain no right to direct the manner and means, of performance by the first party of the covenant and conditions herein contained.

...