Moseley v. Fikes, 13848.

• Decision Date: 10 February 1939
• Docket Number: No. 13848.,13848.
• Citation: 126 S.W.2d 589
• Parties: MOSELEY v. FIKES.
• Court: Texas Court of Appeals

Page 589

126 S.W.2d 589

MOSELEY v. FIKES.

No. 13848.

Court of Civil Appeals of Texas. Fort Worth.

February 10, 1939.

Rehearing Denied March 31, 1939.

Appeal from District Court, Tarrant County; Frank P. Culver, Jr., Judge.

Suit by William Moseley against Leland Fikes for alleged breach of trust and for other relief. Judgment for plaintiff for damages, and the plaintiff appeals because of refusal to grant other relief sought.

Reversed and cause remanded.

Frank C. Bolton, of Henderson, and Austin F. Anderson, of Fort Worth, for appellant.

McGown, McGown, Godfrey & Logan, B. E. Godfrey, and John M. Scott, all of Fort Worth, and W. C. Hancock and Edwin M. Fulton, both of Gilmer, for appellee.

DUNKLIN, Chief Justice.

This suit was instituted by William Moseley against Leland Fikes for relief from the alleged breach by defendant of the trust created by plaintiff's certain deed to him of an interest in two tracts of land in Gregg County. Judgment was rendered in favor of plaintiff for damages in the sum of $1,395, but he has appealed because of the refusal of the court to grant other and different relief for which he sued.

Following is the deed with defendant's written acceptance of it:

                "State of Texas, |
                                  &gt
                "County of Gregg |
                

"Know All Men By These Presents:

"That We, Young Moseley, of Greenville, Texas, and Williams Moseley, of Fort Worth, Texas, heirs of Mattie Moseley, who was the daughter of Mose Turner, and one of his five children, for and in consideration of the sum of $10.00 cash in hand paid by Leland Fikes, herein called grantee, the receipt of which is hereby acknowledged, have granted, sold, conveyed, assigned and delivered, and by these presents do grant, sell, convey, assign and deliver unto the said grantee all of our undivided right, title and interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following land situated in Gregg County, Texas, towit:

"First Tract: All that certain tract or parcel of land out of the W. C. Wakeland Headright Survey, Abst. No. 218,

"Beginning at the N. W. corner of L. W. Weeklys tract;

"Thence West at 204 vrs. a stake from which a sweet gum bears south 35' 14/10 vrs. a pine brs. North 25' 14/10 vrs.;

"Thence North at 660 vrs. the North line of the said W. C. Wakelands survey, a stake from which a small pine bears South 15' East 44/10 vrs.;

"Thence East with said line at 600 vrs. the N. E. corner of same;

"Thence South with west line of W. H. Castleberrys survey at 660 vrs. the N. E. corner of said Weeklys tract a stake from which a pine bears North 18' 9 vrs. a post oak brs. South 44' E. 4 vrs.;

"Thence West with North line of same at 396 vrs. to the place of beginning, containing in all 70 acres of land, more or less.

"Second Tract: All that certain tract or parcel of land out of the W. C. Wakeland Headright survey, Abst. No. 218, Gregg County, Texas, and

"Beginning 630 vrs. South of the N. W. corner of the Wm. C. Castleberry survey, a stake from which a pine bears N 18' W 9 vrs. a post oak brs. S 44' E 4 vrs.;

"Thence W. 396 vrs. to a stake;

"Thence S. 1240 vrs. to the S boundary line 396 of the said Wakeland survey;

"Thence E. with said boundary line 396 vrs. to the S. E. corner of said Wakeland survey;

"Thence N. 1240 vrs. to the place of beginning, and containing 87 acres of land, more or less; and all other lands formerly owned by Moses Turner and now owned by his heirs, and whether correctly described herein, or not, and whether described herein or not.

"Our intention being to convey all of our right, title and interest in and to the two Mose Turner tracts of land in the W. C. Wakeland survey, Gregg County, Texas, comprising seventy acres, more or less, and eighty-seven acres, more or less, and also all other lands formerly owned by our mother, Mattie Moseley in the said survey, or any adjoining survey, whether correctly or incorrectly described herein, and whether described herein or not, together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said land for oil, gas and other minerals, and removing the same therefrom.

"To Have and To Hold the above described property, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said grantee herein, his heirs and assigns forever; and we do hereby bind ourselves our heirs, executors and administrators to warrant and forever defend all and singular the said property unto the said grantee herein, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.

"Witness our hands this 6th day of April, 1931.

                                 "William Moseley
                                 "Young Moseley."
                

The instrument was duly acknowledged by the grantors.

At the same time, and as a part of the same transaction, Fikes executed and delivered to the grantors the following instrument in writing:

                    "Fort Worth, Texas, April 6, 1931
                "Mr. William Moseley
                "Mr. Young Moseley, 313 East 9th Street
                     Fort Worth, Texas
                

"Dear Sirs: In connection with the agreement and mineral deed you have today signed, I further agree to pay all the necessary expense, lawyer's fees, court costs, and other necessary incidentals to defend title to your interest in your mother's estate insofar as your interest is affected in what is known as the Mose Turner 70 acre tract and the 87 acre tract in the W. C. Wakeland HRS, Gregg County, Texas, and to assign and deliver free of cost to you one-half of any royalty which I may recover under your claim of title.

"The specific intent therein being to convey to me a regular 88' form lease for a ten year period and one-half of the royalty and to keep for yourself the land and one-half of the royalty, as if and when title may be freed from other claims at my expense.

                          "Yours truly
                          "(Signed) Leland Fikes."
                

The land described in the deed belonged to Mose Turner at the time of his death, in the year 1910. He died intestate. He had fourteen children, but according to undisputed testimony, only five survived him, including Mattie Moseley, plaintiff's mother, who also died intestate. It thus appears that plaintiff inherited through his mother 1/6 of 1/5 interest in the property described in the deed above referred to.

William Moseley instituted this suit against Leland Fikes for the relief hereinafter noted, upon allegations that by the terms of his deed to Fikes and the latter's written acceptance of it, a trust was created in plaintiff's favor, which defendant had breached by disposing of plaintiff's interest in the land reserved to him by those instruments and his refusal to account therefor.

As a special defense, Fikes pleaded plaintiff's alleged contract of settlement of all his interest in the land, evidenced by a written agreement to that effect, embodied in plaintiff's receipt for $200, of date August 26, 1931. In reply to that plea, plaintiff alleged that that stipulation was inserted in a blank space following acknowledgment of payment of $200, and above his signature, all without plaintiff's knowledge or consent.

As another special defense, defendant sought to bind plaintiff by certain legal proceedings taken by B. Reagan McLemore, an attorney at law, upon allegations that the same were performed under employment by plaintiff.

A further special defense was a plea of limitation.

The jury returned findings adverse to the defendant on all those special defenses, and they were the only special issues submitted, from which the defendant did not appeal.

After reciting those findings, the judgment concluded as follows:

"The court finds from the evidence adduced upon the trial and from the verdict of the jury that the plaintiff, William Moseley, is entitled to recover the present market value of one-sixth (1/6) interest in one-half (1/2) of 8.7 acres; that the present market value of said royalty interest is $2,200.00 per acre; that the value of the interest which said plaintiff is entitled to recover of the defendant, Leland Fikes, is $1,395.00, and that said plaintiff, William Moseley, is entitled to recover from said defendant, Leland Fikes, the sum of $1,395.00, together with interest thereon from this date at the rate of six (6) per cent per annum; and the court, having heretofore overruled the motion for judgment against the defendant, filed by the plaintiff herein, as shown in plaintiff's said motion filed herein on September 25, 1937, decrees as follows:

"It is, therefore, ordered, adjudged and decreed by the court that the plaintiff, William Moseley, do have and recover of and from the defendant, Leland Fikes, the sum of $1,395.00, together with interest thereon, from this date, at the rate of six (6) per cent per annum, and all costs of suit, for which plaintiff may have his execution."

During the year 1931, Fikes acquired deeds from other heirs of Mattie Moseley to their respective interests in all the oil, gas and other minerals in the two tracts in controversy, as follows: (a) Deed of date March 31, 1931, executed by Joe Moseley, surviving husband of Mattie Moseley, and Nealie (Moseley) Smith, daughter of Mattie Moseley, joined by her husband, and conveying "our entire interest in the estate of Mattie (Turner) Moseley, who was one of the five children of Mose Turner, deceased, insofar as it covers all our right, title and interest in and to all of the oil, gas and other minerals in and under and that may be produced" from the two tracts.

(b) Deed dated May 1, 1931, executed by W. V. Derrick, surviving husband of Virginia (Moseley) Derrick, deceased, daughter of Mattie Moseley, and several of her children, designating themselves as "heirs of Mattie Moseley, who was the daughter of Mose Turner and one of his five children", and conveying all their right, title and interest in the oil, gas and other minerals in the two tracts.

(c) Deed dated June...