Myers v. Crenshaw

• Decision Date: 08 April 1938
• Docket Number: No. 5159.,5159.
• Citation: 116 S.W.2d 1125
• Parties: MYERS et al. v. CRENSHAW et al.
• Court: Texas Court of Appeals

116 S.W.2d 1125

MYERS et al. v. CRENSHAW et al.

No. 5159.

Court of Civil Appeals of Texas. Texarkana.

April 8, 1938.

Rehearing Denied May 5, 1938.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Rusk County; R. T. Brown, Judge.

Trespass to try title by Glenn Myers and others against Arah Crenshaw and others, M. S. Thetford and others, Webb Kennedy and others, and Rufus Jones and wife, wherein the Sun Oil Company intervened, and the intervener, M. S. Thetford and others and Rufus Jones and wife filed cross-actions. From the judgment, Glenn Myers and others, Webb Kennedy and others, and Rufus Jones and wife separately appeal.

Affirmed in part and reversed and rendered in part.

Smith & West and Stone & Wells, all of Henderson, Davis, Jester & George, of Corsicana, and Paul E. Daugherty and E. E. Fischer, both of Houston, for appellants.

Mayfield, Grisham & Grisham, Lasseter, Simpson & Spruiell, Weeks, Hankerson & Potter, Pollard & Lawrence, F. W. Fischer, N. E. Hendrickson, and E. Ewing Smith, all of Tyler, A. A. Garrett, of Overton, Bradley & Bradley, of Groesbeck, Brachfield & Wolfe, of Henderson, J. W. Timmins, of Dallas, Paul A. McDermott, of Fort Worth, Denman & Fowler and J. J. Greve, all of Nacogdoches, E. W. Merritt, of McKinney, Scott & Hall, of Marshall, and Phillips, Trammell, Estes, Edwards & Orn, of Fort Worth, for appellees.

WILLIAMS, Justice.

This is a trespass to try title action, tried to a jury, involving leasehold interests, royalty interest, and the fee-simple title to a 25-acre tract of land situated in Rusk county, Tex.

Rufus Jones, joined by his second wife, on September 11, 1930, executed an oil and gas lease to R. H. Laird. In December these parties executed a deed conveying 1/2 the minerals to B. F. Carroll, subject to the said lease. By mesne conveyances M. S. Thetford, J. E. Bradley, and Sun Oil Company were the owners of this Carroll interest. Later, in February, 1931, these same parties executed a deed conveying 1/4 the minerals to Paul Daugherty, being subject to said lease. By mesne conveyances Glenn Myers, Home Corporation, Limited, Black Arrow Oil Company, R. H. Dearing & Sons, Royal Petroleum Company, and I. M. Williams, as trustee for R. H. Dearing & Sons, were the owners, at the time of the trial, of this Daugherty interest, and hereinafter will be referred to as the Daugherty associates.

Arah Crenshaw, the former wife of Rufus Jones, joined by her second husband, Howard Crenshaw, on October 11, 1932, executed a power of attorney conveying 1/2 her interest in the tract to W. H. Grier. By mesne conveyances said Grier, May Greve, A. A. Biggs, Hazel and Carl Hickman, T. F. Strahan, and Floyd Baton were the owners of a 7/24 interest of the royalty at the time of the trial. These will hereinafter be referred to as the Crenshaw royalty.

Webb Kennedy, Emma Montgomery, Major Kennedy, Savannah Butts, and Arthur Kennedy, the surviving children and only heirs of Dink Kennedy, on July 11, 1933, executed a power of attorney and a conveyance of 1/2 their interests in the tract to G. W. Morgan, and these will hereinafter be referred to as the Dink Kennedy interest.

Opal Jean Givens and her father executed an oil and gas lease and two mineral deeds which purport to convey to J. H. Merett title to her entire interest in the minerals.

All the parties above named, grantors and grantees, save the Paul Daugherty and the Dink Kennedy interests, by various assignments conveyed the leasehold estate into one R. E. Moore, who on September 18, 1934 became the record owner of the leasehold estate.

This tract of land surveyed out 26.7 acres, and is herein referred to as the tract. The tract was then subdivided by metes and bounds into six parcels. Moore and the Kennedy interests entered into a partition agreement of the leasehold under which the Kennedys took a leasehold on a certain 1.7 acres of the subdivision and Moore the balance. Fred Birdsong later acquired the leasehold interest to the 1.7-acre parcel. By various assignments, transfers, and conveyances P. A. Wiley, J. Beren, trustee, J. H. Merett, R. E. Moore, Warner-Quinlan Oil Company, and the Overton Refining Company acquired leasehold interests in respective parcels of land under the division.

Glenn Myers and associates, holding under the Paul Daugherty 1/4 mineral interest, instituted this suit on February 7, 1935, in which they made defendants all the respective parties heretofore named, except the Sun Oil Company, as well as others not necessary to name. The Sun Oil Company intervened and it with M. S. Thetford, J. E. Bradley, J. H. Merett, Fred Birdsong, P. A. Wiley, and J. Beren, trustee, in addition to answering on the merits, filed cross-actions against all the other parties in trespass to try title and to remove cloud.

Rufus Jones and his second wife answered on the merits, and also filed cross-action seeking a recovery of a 1/4 royalty interest which he claimed to still own. The Kennedys and various other defendants answered with a plea of general demurrer, general denial, and plea of not guilty. Opal Givens was dismissed from the suit. The findings of the jury on the issues submitted to them were duly accepted by the court, and those pertinent to this opinion will appear later.

The judgment awarded the Sun Oil Company a 1/4, Arah Crenshaw and associates 1/2, Bradley and Thetford each a 1/8 of the royalty interest in the entire tract; Bradley a certain interest in the leasehold estate of one of the subdivisions; P. A. Wiley and J. Beren, trustee, Overton Refining Company, and R. E. Moore each leasehold estate in respective subdivisions; Birdsong a leasehold estate in a 1.7-acre tract; and Merett a leasehold estate in a 4-acre tract of the subdivision as against all parties to the suit.

Daugherty associates and Rufus Jones were denied a recovery of any interest. The 1/4 interest claimed by the Kennedys was denied and their interest quieted in the other defendants. The Daugherty associates, the Kennedy interests, and Rufus Jones and wife have perfected separate appeals.

On December 2, 1884, James H. Wynne and wife conveyed by deed to Marcus Jones a 146-acre tract of land which included the 25 acres involved in this suit. This conveyance recites a consideration of $1 cash and the execution of one promissory note of even date with deed, due one day after date, and reserves the superior title until this note or purchase money is paid. This property so acquired became the community property of Marcus Jones and his wife, Mary. Six children were born to this marriage. These six children and one Dink Kennedy, child of Mary Jones by a previous marriage, survived Marcus and Mary Jones. Upon the death of the parents, both dying intestate, by the laws of descent and distribution in Texas, Henry Jones, his brothers and sisters and his half-brother, Dink Kennedy, became tenants in common. Heller v. Heller, 114 Tex. 401, 269 S.W. 771.

November 7, 1903, by a deed reciting a consideration of $1 cash, Henry Jones acquired the interest of all his brothers and sisters, except his half-brother, Dink.

June 27, 1914, a renewal agreement filed for record was executed by Henry Jones to one A. J. Smith which recited the above-mentioned vendor's lien note as being then owned by A. J. Smith and Henry Jones as being the party obligated to pay same, extended the payment to November 1, 1914. This agreement further recites: "Without prejudice to any liens or rights retained to the grantor, his heirs or assigns, in the original deed of conveyance." This record reflects no execution or recordation of any transfer of the vendor's lien and superior title from Wynne to Smith. Under a warranty deed dated November 11, 1915, filed for record the same day, Henry Jones conveyed to A. J. Smith this 146-acre tract, reciting the consideration to be the cancellation and surrender of the vendor's lien note theretofore executed by Marcus Jones payable to Wynne or bearer. This deed recites the note as having been renewed by Marcus Jones on December 4, 1888, October 31, 1892, August 6, 1896, and October 21, 1899; and recites that Henry Jones renewed same October 14, 1903, and October 22, 1913. None of these renewal agreements or any recordation of any of same appear in this record.

From this record A. J. Smith never became the owner of the superior title retained by Wynne, and he was not the owner of this title when Henry Jones executed the deed dated November 11, 1915. In Stephens v. Matthews' Heirs, 69 Tex. 341, 6 S.W. 567, it is said (page 569): "The vendor of land sold on a credit, when an express lien is reserved, is held to retain the legal title, and he may enforce payment of the purchase money by a sale of the land under decree; or, in the absence of equitable considerations forbidding it, he may cancel the executory contract of sale; but an indorsee or assignee of one or all the purchase-money notes have no right to cancel the contract of sale or to recover the land in default of payment of the purchase money. His sole right is to have the land sold and its proceeds applied to the satisfaction of the purchase-money notes held by him * * *."

Announcing this same rule of law are: Cassaday v. Frankland, 55 Tex. 452; Scott v. Watson, Tex.Civ.App., 167 S.W. 268; Smith v. Tipps, Tex.Com.App., 229 S.W. 307; Pope v. Witherspoon, Tex.Civ.App., 231 S.W. 837; Cleveland State Bank v. Gardner, 121 Tex. 580, 50 S.W.2d 786.

When Henry Jones executed this deed into Smith he was a tenant in common with Dink Kennedy. The power of a cotenant to act for and bind his cotenants is aptly stated in 11 Tex.Jur. p. 487, as follows: "Unlike the ordinary copartnership wherein each partner is the agent of all the others to transact the business, each owner in a cotenancy acts for himself and no one is the agent of another nor has any authority to bind him merely because of the relationship. So that, ordinarily, one dealing with property held in coparcenary can...