Olive-Sternenberg Lumber Co. v. Gordon

• Decision Date: 18 February 1942
• Docket Number: No. 1887-7809.,1887-7809.
• Citation: 159 S.W.2d 845
• Parties: OLIVE-STERNENBERG LUMBER CO. v. GORDON.
• Court: Texas Supreme Court

Page 845

159 S.W.2d 845

OLIVE-STERNENBERG LUMBER CO. v. GORDON.

No. 1887-7809.

Commission of Appeals of Texas, Section B.

February 18, 1942.

Motion for Rehearing Overruled March 18, 1942.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action in trespass to try title by W. D. Gordon against Olive Sternenberg Lumber Company. To review a judgment of the Court of Civil Appeals, 143 S.W.2d 694, affirming a judgment of the trial court upon an instructed verdict for the plaintiff, defendant brings error.

Judgment of Court of Civil Appeals reversed and rendered.

R. M. Briggs, of Kountze, and Geo. E. Holland, of Beaumont, for plaintiff in error.

James F. Parker, of Kountze, for defendant in error.

TAYLOR, Commissioner.

W. D. Gordon filed this suit in trespass to try title against Olive-Sternenberg Lumber Company to recover 160 acres of land and for damages for timber alleged to have been cut therefrom. The 160 acres sought to be recovered is a part of 640 acres in Hardin County conveyed to the lumber company on November 25, 1909. Defendant pleaded not guilty, estoppel and stale demand, and the four, five and twenty-five year statutes of limitation. Upon conclusion of the testimony both plaintiff and defendant filed motions for an instructed verdict. Plaintiff's motion was granted awarding him recovery of the one-fourth of the 640 acres but denying him damages for timber alleged to have been cut from the tract by defendant. Upon appeal the judgment was affirmed. Tex.Civ.App., 143 S.W.2d 694, 696.

On November 30, 1908, W. H. Watson and W. S. Parker claimed ownership of the 640 acre survey of land in question. At that time suit was pending against them in the United States Circuit Court at Beaumont filed by David L. Gallup to recover the entire section of land. On that date Watson and Parker entered into a contract with Gordon whereby Gordon, in consideration of professional services to be rendered by him in defending the title to the land in suit and "in all other suits which may be instituted by the said David L. Gallup, his heirs & assigns," agreed to defend the title to the land. The contract contains the recital that for such consideration Watson and Parker "have granted, sold & conveyed, & by these presents do grant, sell & convey unto the said W. D. Gordon, his heirs & assigns" an undivided interest of 160 acres of the land, describing it; and that upon compliance by Gordon with the terms of the contract Watson and Parker "shall & will execute to him a good & sufficient deed to said 160 acres of said land and shall account to him for all timber which shall be hereafter removed by them," Gordon agreeing to serve them as attorney as aforesaid "until the said litigation now pending by said Gallup shall have been settled, & all other litigation which may arise by or through the said Gallup, his heirs or assigns." (Italics ours.) The foregoing excerpts are the material provisions of the contract (set out in full in the opinion of the Court of Civil Appeals).

Mr. Gordon, as the attorney for Watson and Parker, settled the Gallup suit by compromise upon terms that Watson and Parker have judgment for the 640 acres of land on payment to Gallup of $1,500. It was necessary for Watson and Parker to sell the land in order to procure the $1,500 to pay Gallup. Terms of sale were agreed upon with the lumber company for a sale to it through W. C. Brackin for $7,000. The company paid Watson and Parker through Mr. Gordon, their attorney, the $1,500, which in turn was paid to Gallup. Thereupon, after the settlement agreed upon had been made, Watson and Parker, on November 15, 1909, conveyed the 640 acres to W. J. Brackin, who in turn, on November 25, 1909, conveyed it to the lumber company on payment by the company of $5,500, the remainder of the purchase price of the land. On the following day judgment was entered awarding Watson and Parker the entire 640 acres of land.

Gordon was as much bound by the judgment as if he had been a party to the suit. Miller v. Dyess, Tex.Sup., 151 S.W.2d 186, 137 A.L.R. 578. It is probable the case could be determined upon this...