Moore v. City of Beaumont

• Decision Date: 18 April 1946
• Docket Number: No. 4325.,4325.
• Citation: 195 S.W.2d 968
• Court: Texas Court of Appeals
• Parties: MOORE v. CITY OF BEAUMONT.

195 S.W.2d 968

MOORE v. CITY OF BEAUMONT.

No. 4325.

Court of Civil Appeals of Texas. Beaumont.

April 18, 1946.

Rehearing Denied June 20, 1946.

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COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Jefferson County; W. S. Nichols, Judge.

Action by R. A. Moore against the City of Beaumont to recover money which plaintiff had paid to defendant for conveyance to plaintiff of a mineral royalty under the city's airport and for cancellation of instruments of conveyance. From a judgment of dismissal, plaintiff appeals.

Reversed and remanded.

George M. Sonfield, of Beaumont, for appellant.

W. A. Tatum, City Atty., and J. B. Morris, both of Beaumont, for appellee.

WALKER, Justice.

R. A. Moore brought this action against the City of Beaumont to recover $13,772 which he had paid to the City for a conveyance by the City to him of a mineral royalty in and under the City's airport. He also prayed for cancellation of various instruments of conveyance. The trial court sustained exceptions to his petition and dismissed the action, and from this judgment he has appealed.

It is necessary to summarize Moore's allegations and we do so, as follows: The City of Beaumont is a municipal corporation, operating under a charter adopted pursuant to the Home Rule Amendment to the Constitution of this state. Vernon's Ann.St.Const. art. 11, § 5. On July 26, 1929, Evelyn R. Poole, et al. conveyed to the City by general warranty deed a tract of land in the A. Savery league in Jefferson County, containing 275.44 acres. This instrument purported to convey fee title and contained nothing indicating the use for which the land was intended. Actually, the land was bought and paid for with proceeds of bonds which had been voted and issued by the City for the purpose of acquiring an airport. Production of oil and gas from lands near this tract, and drilling operations conducted on adjacent lands during 1935 indicated that valuable deposits of minerals lay within this tract, and Moore agreed to purchase a 1/16th mineral royalty in and under the land and to pay therefor the sum of $13,772 upon delivery of a general warranty deed from the City conveying said royalty to him. On October 17, 1935, the City tendered Moore a conveyance of this royalty, but he required that authority therefor be procured from the city council, and on November 12, 1935, the council by resolution formally authorized this conveyance. On the day following, to-wit, November 13, 1935, Moore paid the agreed consideration of $13,772 to the City, and the City delivered said deed to Moore. The City's later deed, of January 14, 1935, hereinafter quoted, duplicates this instrument, with immaterial additions.

Moore alleges that the City appropriated this money and used it "for municipal purposes."

After this transaction was completed, Moore entered into negotiations with one Gordon for the sale by him to Gordon of a part of his royalty, but Gordon raised the question, whether the conveyance to Moore should have been authorized by an ordinance instead of by the aforesaid resolution, and Moore thereupon informed the City of his intention to sell a part of the royalty to Gordon, and of this particular defect suggested by Gordon. The City agreed to obviate this objection by passing an appropriate ordinance and by thereafter executing and delivering another deed to Moore, and this agreement was performed. On January 7, 1936, the City enacted an ordinance which ratified the previous deed to Moore, acknowledged receipt of Moore's $13,772, and authorized the mayor, city manager and city clerk to execute and deliver to Moore another general warranty deed conveying the agreed royalty to him, and pursuant to this ordinance the aforesaid officers did make, execute and deliver to Moore the general warranty deed dated January 14, 1936, which is quoted below. Since this instrument is a duplication of the deed to Moore of October 17, 1935, with certain immaterial additions, it may properly be set out as the complete expression of Moore's agreement with the City. It follows:

                "The State of Texas
                "County of Jefferson
                

"Know all men by these presents: That the City of Beaumont, acting herein by and through its Mayor, City Manager, and City Clerk, hereunto duly authorized, of the County of Jefferson, State of Texas, for and in consideration of the sum of Thirteen Thousand Seven Hundred and Seventy-two and no/100 Dollars ($13,772.00) cash to it in hand paid by R. A. Moore, the receipt of which is hereby acknowledged, has granted, sold and conveyed, and by these presents does grant, sell and convey unto the said R. A. Moore, of the County of Orange, State of Texas, a one-sixteenth (1/16) perpetual royalty in and to all the oil, gas, sulphur, coal, and other minerals upon and under or that may be produced and saved from the following described tract of land, to-wit:

"275.44 acres of land out of the Ashel Savery League in Jefferson County, Texas, known as the City of Beaumont Airport Tract, bounded on the West by the Ben Irby heirs' 157-acre tract, on the North by the B. S. L. & W. Railway right-of-way; on the East by the Gulf Terrace Subdivision; and on the South by the T. & N. O. Railway right-of-way.

"Delivery of such royalty to be made (less the proportionate part thereof used for fuel or other operative purposes on the premises) at the mouth of the mine or at any pipe line with which the well or wells may be connected, or in tanks, at the well, to be provided by grantee.

"It is understood that the provision herein for delivering or payment of such royalty to the said R. A. Moore, his heirs or assigns, shall be and constitute a covenant running with the land and binding upon grantor, his heirs or assigns, and if and when such oil, gas, or minerals are produced, such royalty shall be delivered or paid to the said R. A. Moore, his heirs or assigns, but it is expressly understood that nothing herein shall be construed as obligating grantor, its successors or assigns, to drill or otherwise operate for such oil, gas, or other minerals, against its will.

"And the City of Beaumont does bind itself, its successors and assigns, to warrant and forever defend all and singular said royalty interest to the said R. A. Moore, his heirs and assigns, forever, against every person whomsoever lawfully claiming or to claim the same or any part thereof.

"It is understood, however, that the above described lands are now under an oil and gas lease originally executed in favor of Joseph P. Landry, and now held by the Humble Oil & Refining Company, and this sale is made subject to said lease, but covers and includes one-half of all the oil royalty and other minerals royalty due to be paid under the terms of said lease, insofar as it covers the above described property, but that none of the money rentals which may be paid to extend the terms within which a well may be begun under the terms of said lease is to be paid to the said R. A. Moore. It is further understood and agreed that the Grantee does not by this conveyance acquire any right to participate in the making of future oil and gas mining leases on the land described herein, nor participate in the making of any future lease should the existing or future lease for any reason become cancelled or forfeited, nor participate in any bonus or bonuses which the Grantor herein shall receive for any lease, nor participate in any rentals, to be paid for the privilege of deferring the commencement of a well or wells under any future lease that may be hereafter executed.

"Nevertheless, it is further understood and agreed that this conveyance is a conveyance of a one-sixteenth (1/16) perpetual royalty in and to all the oil, gas, sulphur, coal and other minerals that may be produced and saved from the said 275.44 acres of land described above.

"It is further provided that this is a conveyance of the identical one-sixteenth (1/16) royalty mentioned and described in the royalty deed from the City of Beaumont to R. A. Moore dated October 17th, 1935, and recorded in Volume 407, page 393, of the Deed Records of Jefferson County, Texas, and this deed is made for the purpose of correcting said deed, and is not an additional royalty.

"In testimony whereof, the City of Beaumont has caused this instrument to be executed by its Mayor, City Manager, and City Clerk, and its seal to be affixed thereto, this, the 14th day of January, A. D. 1936.

                                              "The City of Beaumont
                                                 "By (P. D. Renfro)
                                                     "Mayor
                                                 "By (G. H. Petkovsek)
                                                     "City Manager
                "Attest (Seal)
                  "(Raymond Edmonds)
                     "City Clerk."
                

Gordon thereafter agreed to buy a part of this royalty, subject to approval of Moore's title, but eventually refused to accept a conveyance from Moore "for the reason that, in his opinion, the defendant City of Beaumont had no authority to convey the minerals under said tract of land to plaintiff and that its deed passed no title whatever because said property had been purchased with the proceeds of a bond issue voted for airport purposes." Moore did not acquiesce in Gordon's action; and on or about September 6, 1936, brought suit against Gordon in the district court of Orange County for specific performance of the latter's contract of purchase. Gordon defended the suit on the ground whereon he based his refusal to accept conveyance of title from Moore, and this defense was sustained and Moore was denied relief against Gordon by a judgment of said district court dated February 26, 1937. The Court of Civil Appeals, that is, this court, 122 S.W.2d 239, on an appeal by Moore affirmed the judgment of the trial court by a judgment dated October 27, 1938, and on January 25, 1939, the Supreme Court dismissed Moore's application for a writ of error. Moore's motion for rehearing in the Supreme Court was overruled on ...