Moran v. Stanolind Oil & Gas Co., 13891.

• Citation: 127 S.W.2d 1012
• Decision Date: 07 April 1939
• Docket Number: No. 13891.,13891.
• Parties: MORAN et al. v. STANOLIND OIL & GAS CO.
• Court: Texas Court of Appeals

127 S.W.2d 1012

MORAN et al. v. STANOLIND OIL & GAS CO.

No. 13891.

Court of Civil Appeals of Texas. Fort Worth.

April 7, 1939.

Rehearing Denied May 12, 1939.

Error from District Court, Gregg County; D. S. Meredith, Jr., Judge.

Suit by the Yount-Lee Oil Company against M. M. Moran and others, in trespass to try title of oil, gas, and mineral rights, wherein the Stanolind Oil & Gas Company succeeded the original plaintiff. To review a judgment for plaintiff notwithstanding a directed verdict for defendants, defendants bring writ of error.

Affirmed.

B. Reagan McLemore, of Longview, for plaintiffs in error.

Turner, Rodgers, Winn & Sellers, M. B. Solomon, and George S. Terry, all of Dallas, and Clay Tallman and Leslie A. Tompson, Jr., both of Tulsa, Okl., for defendant in error.

SPEER, Justice.

Stanolind Oil & Gas Co., a corporation, succeeding the original plaintiff, Yount-Lee Oil Co., sued M. M. Moran, A. A. Castleberry, Jr., and C. W. Castleberry, individually and as guardian of the estate of Mrs. A. A. Castleberry, non compos mentis, and as administrator of the estate of J. N. Castleberry, deceased, in trespass to try title of oil, gas and mineral rights in and under about four and one-half acres of land, a part of the Wm. Robinson Headright Survey in Gregg County, Texas.

The parties will carry the same designation here as in the trial court.

An order of the court was entered on October 2nd, 1936, substituting plaintiff, as such, in lieu of Yount-Lee Oil Co., and on August 7th, 1937, it filed its Third Amended Original Petition, upon which the trial was had.

Plaintiff's pleadings are in the usual form for trespass to try title, with additional allegations of five, ten and twenty-five year statutes of limitation, covering seven-eighths interest under oil and gas leases to minerals in place in and under the following described lands in Gregg County, Texas: "Lying and being situated about six miles northwest of the town of Longview, being a part of the Wm. Robinson Survey, and beginning in the north boundary line of said survey, it being the northeast corner of the Hunter 300-acre home tract; thence south 1-½ degrees west 471 varas to the Gilmer road; thence northwest with said Gilmer road to the north boundary line of the Robinson Survey; thence east to the place of beginning, containing 4-½ acres of land, more or less."

The defendants answered with general demurrers, general denials and pleas of not guilty.

A jury trial was demanded, but at the conclusion of the testimony the court instructed a verdict for defendants. The plaintiff filed motion for judgment non obstante veredicto, and after notice, appearance and hearing, the court sustained the latter motion and entered judgment for plaintiff for title and possession of the seven-eighths leasehold estate in the oil, gas and minerals in and under the lands described in its pleadings. The defendants timely perfected an appeal by means of the writ of error.

By the description of the tract in controversy it will be observed to be in the Robinson Survey, in a triangular or wedge shape, in the northeast corner of what is called in the record the Hunter home place of 300 acres, and is cut off from the remainder of the tract by the Gilmer Highway.

The record shows that by deed dated December 10th, 1904, recorded June 11th, 1930, L. G. Lee and wife, Annie E. Lee, acquired a tract of 140 acres in the Robinson Survey, off the north end of the Hunter 300-acre tract out of that survey; that A. A. Castleberry then owned 148 acres out of the same survey. Castleberry's northwest corner called for the northeast corner of the Hunter 300-acre tract. As before stated, Lee's northeast corner was the same. That corner is definitely located in the conveyances, and there is no controversy about it. Both Castleberry and the Lees have been in peaceable and adverse possession of their respective tracts since they acquired them, unless the Lees had lost the tract under consideration to Castleberry by limitation, which matter we shall later discuss.

Plaintiff claims title to the leasehold interest by virtue of an oil and gas lease from Annie E. Lee and the surviving children of L. G. Lee (he having previously died intestate), dated September 19th, 1930, to J. E. Farrell; assignment of lease from Farrell to Arkansas Fuel Oil Co.; and a quitclaim deed from Arkansas Fuel Oil Co. to plaintiff, dated October 15th, 1936. The foregoing instruments included within their calls the small tract in controversy.

Plaintiff also claimed the leasehold interest in the small tract by virtue of a lease from A. A. Castleberry, Sr. (who owned all the land lying east of the Lee tract), to B. A. Skipper, dated April 26th, 1930. Castleberry's wife did not join in that lease, she having been previously adjudged insane. In that lease is found this provision: "It is intended herein to convey all land that I own in the above mentioned H. R. Survey (Robinson), being 148 acres of land, more or less, it being the intention to include all lands owned or claimed in said survey or surveys." An assignment of said lease by Skipper to W. W. Lechner; assignment from Lechner to J. E. Farrell; assignment from Farrell to Yount-Lee Oil Co.; assignment from Yount-Lee Oil Co. to Wright Morrow; and an assignment from Morrow to Stanolind Oil & Gas Co. Plaintiff also introduced in evidence an instrument executed and acknowledged by A. A. Castleberry, Sr., dated January 20th, 1931, a part of which reads: "I, A. A. Castleberry, Sr., for and in consideration of one ($1.00) Dollar cash in hand paid to me by J. E. Farrell, hereby stipulate and agree that in that certain oil and gas lease executed by me on the 26th day of April, 1930, to B. A. Skipper, as lessee, recorded in Book 4, page 382, Records of Gregg County, Texas covering certain land in the Wm. Robinson Survey, that said land has been surrounded by a fence for the past 25 years and is bounded by said fence and by the farms of the following persons: R. K. Johnson farm on the north; Mrs. Lee farm on the west; Mrs. Killingsworth farm on the east; A. A. Castleberry farm on the east. I have owned said farm for 50 years and during that time have farmed same and raised crops thereon and have paid the taxes as they became due and so far as I know no persons have ever disputed my title * * *."

The Skipper and Lechner assignments, above referred to, do not contain the entire clause referring to the intentions of grantors, as is found in the Castleberry lease mentioned. The two assignments each contain this provision: "It is intended herein to convey all land that I own in the above mentioned H. R. Survey, being 148 acres of land more or less."

There is no agreed common source of title shown in the record. For the purpose of showing the common source, plaintiff proved by L. G. Castleberry, one of the defendants, that the tract in controversy was originally included in the L. G. and Annie E. Lee tract, under their deed from the Hunters, and that his father, A. A. Castleberry, Sr. (then dead), claimed to have acquired title to it from the Lees; that the witness, for himself and in his dual fiduciary capacity, as well as the other heirs of A. A. Castleberry, Sr., claimed the mother's community interest in the tract of land in controversy.

The defendant, Moran, claimed the leasehold interest in the 4½-acre tract under and by virtue of an oil and gas lease from A. A. Castleberry, Sr., dated March 18th, 1931, in which lease the 4½-acre tract was described by metes and bounds, as it is in plaintiff's petition.

Neither of the defendants offered any testimony whatever, but rested upon the conclusion of plaintiff's evidence. As above stated, the verdict rendered by the jury in favor of defendants was upon a summary instruction from the court to that effect, and subsequently the court sustained plaintiff's motion for judgment irrespective of that instructed verdict.

The defendants are plaintiffs in error here, seeking a reversal of the judgment entered on plaintiff's motion non obstante veredicto.

Defendants have presented four assignments of error, and eight propositions relating to them. By these propositions defendants treat the title attempted to be proven by plaintiff as being mainly from the chain of conveyances growing out of the...