Miller v. Howell

• Decision Date: 17 November 1950
• Docket Number: No. 15175,15175
• Citation: 234 S.W.2d 925
• Parties: MILLER et al. v. HOWELL et al.
• Court: Texas Court of Appeals

Page 925

234 S.W.2d 925

MILLER et al. v. HOWELL et al.

No. 15175.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 17, 1950.

Rehearing Denied Dec. 158 1950.

Al M. Heck, Park Street, Nat L. Hardy and Carl Wright Johnson, all of San Antonio, for appellants.

Lasseter, Spruiell, Lowry, Potter & Lasater, of Tyler, for appellees.

McDONALD, Chief Justice.

The appeal is from an order overruling a plea of privilege. It will be more convenient to designate the parties as they were designated in the trial court. The plaintiffs were J. V. Howell, a resident of Dallas County, and R. D. Howell, a resident of Bexar County. The defendants were Mary Green Miller, sued individually and as independent executrix of the will and estate of G. C. Howell, deceased, and her husband, Dr. Robert Miller, both residents of Bexar County, and Gordon Howell, a resident of Cameron County. The suit was filed in Wood County, and the defendants Mary Green Miller and her husband filed their plea of privilege to be sued in the county of their residence.

The plaintiffs seek to maintain venue in Wood County under Subdivision 14 of Article 1995, R.C.S., on the ground, to quote from their controverting affidavit, 'that plaintiffs sue for the title and possession of a one-half interest in the lands described,' and that 'said lands are located partially in Wood County,' and under Subdivision 13 on the ground, again to quote from their controverting affidavit, 'that plaintiffs sue for a partition of the assets of a partnership hereinbefore existing between plaintiffs and G. C. Howell, deceased * * * a portion of the assets of said partnership consists of lands in part located in Wood County.' They further seek to maintain venue in Wood County on the ground that they have an implied lien on the assets of the partnership, a part of which consists of land in Wood County, to secure payment of debts which the deceased G. C. Howell owed to the partnership and to plaintiffs. Article 1995, Sub. 12.

We must determine, therefore, whether the nature of plaintiffs' suit is such as to bring it within the provisions of Subdivisions 12, 13 and 14, or either of them. Under rules long established, the nature of plaintiffs' suit must be determined from their pleadings.

The first four numbered paragraphs of the petition contain counts generally in the nature of a suit in trespass to try title, the first numbered paragraph alleging that on January 1, 1950, the plaintiff J. V. Howell was the owner of a one-fourth interest and that the plaintiff R. D. Howell was the owner of a one-fourth interest, in fee simple, in the lands described in three exhibits attached to the petition. The petition seeks an accounting for oil, gas and other minerals produced from the lands. The concluding sentence of what might be termed the trespass to try title count reads as follows: 'Plaintiff sues not only to establish their title to their said interests but also for a partition and division of the said properties as assets of the partnership hereinafter pleaded.'

Paragraphs numbered five to fifteen, beginning with the declaration, 'Specially pleading their title plaintiffs show that on or about August, 1938, plaintiffs associated themselves with G. C. Howell to form a partnership for the purpose of acquiring oil, gas, royalty, mineral and other real property interests,' allege in detail the formation by parol of a partnership agreement, under the terms of which plaintiffs and G. C. Howell were to be active in obtaining information concerning various oil plays in the states of Texas, Oklahoma, Arkansas, Illinois, and elsewhere, and were to attempt to negotiate trades for the purchase of such interests. Any interests which the parties mutually desired to purchase for the partnership were to be paid for with funds advanced by G. C. Howell or out of the partnership income, and G. C. Howell was to be entitled to reimbursement for such advances out of the partnership assets, and the other partners were likewise to be entitled to reimbursement for any advances made by them. The interest of G. C. Howell was to be one-half, that of plaintiffs one-fourth each. About 1941 various producing oil properties were acquired by the partnership. Proceeds of sales of oil and gas were paid to G. C. Howell, the amounts being sufficient to reimburse G. C. Howell fully for all advances made by him. To quote from the petition, 'The parties continued to do business under the same agreement with additional purchases, after that time, being made and paid for out of the proceeds from sale of oil and gas from partnership assets.' While so engaged in said enterprise and the prosecution thereof the parties acquired the properties described in the exhibits attached to the petition. 'Title to said interests was taken in the name of G. C. Howell but for the use and benefit of the partnership according to the said agreement.' Other allegations are to the effect that some of the interests have been sold, and that full information with respect to the properties is contained in books and records in the possession of the defendant Mary Green Miller, and she is called on to produce such records. Again quoting, 'As to properties located in the State of Texas, plaintiffs sue for judgment awarding them title and possession of their respective therein (sic). As to properties described in said exhibits located outside the State of Texas, plaintiffs ask that a mandatory injunction be issued by this Court requiring Mary Green Miller, Executrix as aforesaid, to convey to them their respective interests in said properties.' Alleging that G. C. Howell had received large sums of money from the partnership property, the petition declares that Mary Green Miller, as executrix, should be required to make a full, fair and complete accounting of all the partnership property, income, expenses and transactions. The Court is asked to appoint an auditor, under Rule 172, Texas Rules of Civil Procedure, with authority to examine into the partnership accounts and records and to report back to the Court the results of his findings. The substance of the prayer of the petition is:

(1) That defendants be cited.

(2) That Mary Green Miller, as executrix, be required to account to plaintiffs for all partnership assets and income which have come into her hands.

(3) That an auditor be appointed to examine into said accounts and to report his findings to the Court.

(4) That judgment be entered awarding to plaintiffs the title and possession of 'their partnership interest in the real property located in the State of Texas;' and that Mrs. Miller be required to convey to plaintiffs 'their respective interests in the partnership located outside of the State of Texas.'

(5) That the partnership properties be divided and partitioned between the parties.

(6) That plaintiffs have judgment against Mrs. Miller for such sums as an accounting and audit might show 'is due and owing to them in connection with the partnership estate.'

(7) For such other relief as plaintiffs may be entitled to receive.

Attached to the petition are exhibits in which are described numerous items of real property, for the most part oil and mineral interests, located in various counties in Texas and in several other states.

As is said above, the petition is incorporated by reference in the controverting affidavit.

The first contention made by defendants, appellants here, is that the suit, on its face, is not one for recovery of an interest in land, but for the recovery of profits arising from the use and sale of land. Our summary of the allegations of the petition shows that the allegations of the petition are to the effect that the lands themselves and not merely the profit arising from them, are owned by the partnership. It is alleged that some of the properties were purchased with partnership income, and it is alleged that all of the properties were acquired by the partnership.

We shall discuss together the questions whether or not venue lies in Wood County under Subdivision 14 of Art. 1995, as being a suit to recover land, or under Subdivision 13, as being a suit to partition land, or under Subdivision 12, as being a suit to foreclose a lien on land. The three subdivisions provide, respectively, that (14) suits for the recovery of land or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie, and (13) that suits for the partition of land or other property, and (12) that suits for the foreclosure of a mortgage, or other lien on property, may be brought in the county in which such land or property is situated.

It is stated in 56 Am.Jur., Venue #11, p. 13, that 'Venue statutes providing that suits for the possession or recovery of real estate, or for the determination of title, rights, and interests in real estate are to be brought in the county where the real estate or some part thereof is situated are more or less declaratory of common-law rules, and the common-law tests of local action are usually applied.' It has been held in Texas that an action to recover land, within the meaning of our venue statute, has a well-known and definite meaning, and means an action in ejectment, trespass to try title, or suit to recover the land itself. Pena v. Sling, 135 Tex. 200, 140 S.W.2d 441, 128 A.L.R. 1223. For example, it does not include an action for specific performance of a contract to convey land. Hearst's Heirs v. Kuykendall's Heirs, 16 Tex. 327. 'Recovery of land' has reference to possession. Miller v. Rusk, 17 Tex. 170.

'The venue of an action is ordinarily determined by the nature of the principal right asserted and the relief sought. That is to say, it is the facts of the transaction that decide the venue, not the name given it nor the form in which the plaintiff has cast his petition.' 43 Tex.Jur., Venue, #4, p....