Outlaw v. Bowen

• Citation: 285 S.W.2d 280
• Decision Date: 28 November 1955
• Docket Number: No. 6537,6537
• Parties: Mildred L. OUTLAW et vir, Appellants, v. T. O. BOWEN, Jr., Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 280

285 S.W.2d 280

Mildred L. OUTLAW et vir, Appellants, v. T. O. BOWEN, Jr., Appellee.

No. 6537.

Court of Civil Appeals of Texas, Amarillo.

Nov. 28, 1955.

Rehearing Denied Dec. 31, 1955.

Joe S. Moss, Houston, for appellants.

Crenshaw, Dupree & Milam, Lubbock (R. K. Harty, Lubbock, of counsel), for appellee.

PITTS, Chief Justice.

This case involves a joint mineral interest owned by appellee, T. O. Bowen, Jr., and appellants, Mildred L. Outlaw and husband, N. C. Outlaw, in and under a 44.924 acre tract of land located in Carza County, Texas, and a proper construction of a mineral conveyance in order to determine their respective interests. Appellee filed suit against appellants seeking a declaratory judgment and asking for a partition of the oil, gas and other minerals in and under the said land, and for a removal of the cloud cast upon his title by reason of certain language used in an instrument of conveyance previously executed on December 6, 1943, by appellants. Appellants answered with a number of special exceptions and a general denial and seemed to defend upon the grounds that appellee's interest is an alleged nonpossessory royalty interest, purchased by appellee from his mother, Mrs. Minnie L. Bowen, after appellants had conveyed the said interest to her under the terms of the instrument previously herein mentioned, which interest they claim is not entitled to be partitioned; that appellee in fact is seeking reformation, cancellation or recision of the said instrument but such is barred by the statutes of limitation and cannot be awarded in any event without making Mrs. Minnie L. Bowen, the grantee, a party to the suit.

The case was tried to a jury and as a result of its findings the trial court construed the terms of the instrument in question as being one that conveyed a fully participating mineral interest to grantee, who thereafter conveyed her interest to appellee, and rendered judgment awarding the partition sought by appellee. The judgment also declared appellee the owner of his mineral interest in fee simple, without any restraint on his right to alienate same, and without any power on the part of appellants to execute any oil, gas or other mineral leases thereon. The said judgment further removed the cloud cast on appellee's title by certain language used in the said instrument in question.

Appellants perfected an appeal to this court and present 44 points of error for our consideration. Their preliminary statements, authorities listed and points presented cover 23 1/2 pages of their brief consisting of a total of 31 pages. A statement of the 44 points alone, some of which are lengthy, covers 20 pages in the brief. The appellants use only seven pages of their brief to group and present generally all of the 44 points together, covering many separate and distinct complaints about matters, many of which are in no way related to each other. According to the rules of procedure such points cannot be grouped for presentation on appeal. Federal Underwriters Exchange v. Bickham, Tex.Civ.App., 136 S.W.2d 880, Syl. 11, affirmed 138 Tex. 128, 157 S.W.2d 356; Traders & Gen. Ins. Co. v. Scogin, Tex.Civ.App., 146 S.W.2d 1014, Syl. 5; Western Union Telegraph Co. v. Hinson, Tex.Civ.app., 222 S.W.2d 636, Syl. 8. However, because of our liberal policy to consider such points so grouped and presented so long as we can determine with some degree of certainty what a party is complaining about, we shall consider all of the said points.

In their many points of error presented, appellants have complained in separate points to the effect that the trial court committed error in overruling their numerous exceptions to appellee's pleadings, charging that the suit is essentially one seeking reformation, recision or cancellation without making the grantee in the instrument, Mrs. Minnie L. Bowen, a party to the suit and without alleging any fraud, accident or mistake, further claiming the 4-year statute of limitations in bar of recovery, Vernon's Ann.Civ.St. art. 5529, charging also that appellee owns nothing more than a nonpossessory royalty interest evidenced by his failure to plead possession or ingress and egress and that a nonpossessory royalty interest cannot compel a partition of interests; complained further on various grounds about the admission of certain parol evidence and particularly that offered in an alleged attempt to very the terms of a written instrument; complained also because the trial court overruled their several objections to the court's charge given to the jury, overruled their motion for an instructed verdict and their motion to withdraw their announcement of ready after trial had begun and permit them to file a plea in abatement; complain further because the jury verdict is not supported by the evidence and charge that for many reasons the judgment rendered is contrary to law. It therefore appears that appellants briefed their appeal in part at least on a theory different from that pleaded by appellee and apparently different from the theory upon which the case was tried and judgment therein was rendered.

The record reveals that on or about July 12, 1943, Minnie L. Bowen, age 79 years and the surviving widow of W. L. Bowen, deceased, and her surviving children conveyed the land in question, including the minerals, to Mildred L. Outlaw, wife of N. C. Outlaw, as her separate property, but with an agreed understanding that Minnie L. Bowen would repossess one-half of the minerals; that thereafter on December 6, 1943, Mildred L. Outlaw and her husband, N. C. Outlaw, conveyed back to Minnie L. Bowen an undivided one-half of the oil, gas and other minerals and royalties in and under the said land, which conveyance constitutes the basis for this lawsuit; that all of the negotiations leading up to this conveyance, however, were conducted by N. C. Outlaw for his wife, Mildred L. Outlaw; that thereafter on October 26, 1946, N. C. Outlaw took to the home of Minnie L. Bowem a prepared oil and gas lease, seeking her execution of the same jointly with himself and his wife conveying the said minerals in and under the said land to one R. W. Hamilton and the said instrument was jointly executed by the three said parties on the said date; that on the next day N. C. Outlaw took to the home of Minnie L. Bowen and gave to her the sum of $5 as her one-half of the proceeds from the joint lease executed; that soon thereafter, through the assistance of her grandson, Vansell Bowen, and her nephew, Lee Bowen, Minnie L. Bowen learned that the consideration of the said joint mineral lease contract was $25 per acre, of which she was entitled to one-half thereof instead of only $5 to her part, and the remainder of one-half of which amounting to $555.50 was thereafter paid to her by N. C. Outlaw through her said nephew, Lee Bowen; that thereafter on August 26, 1948, Minnie L. Bowen conveyed all of her undivided one-half mineral interest in and under the said land to her son, appellee herein, T. O. Bowen, Jr., who bought his mother's interest therein with knowledge that there existed a disagreement between his mother and the Outlaws about their respective interests in the minerals in and under the land in question.

This suit being one for partition, declaratory judgment and removal of cloud from title, suffice it so say, without restating the lengthy pleadings, exceptions, objections to the testimony and the court's charge all based upon a theory that the suit is one to reform, cancel and rescind, that such were properly overruled. Nowhere does appellees seek reformation, recision or cancellation and nowhere does the trial court award reformation, recision or cancellation.

Appellee pleaded that certain provisions of the instrument in question of date December 6, 1943, executed by the appellants conveying mineral interest to Minnie L. Bowen were in conflict with other provisions thereof, creating an ambiguity, and that it was the intention of the parties to the said instrument to convey a full participating one-half mineral interest to grantee and the said parties had so construed the said instrument by thereafter joining together in the execution of a joint mineral lease to R. W. Hamilton on October 26, 1946, and thereafter dividing the proceeds therefrom equally between Minnie L. Bowen and appellants. Appellee also pleaded that the said instrument of date December 6, 1943, contained the following unenforcible and void paragraph:

'This mineral deed is accepted with the understanding that no conveyance or assignment of such royalty shall ever by made except in while and that any attempt to convey or assign any portion less than the whole thereof, either by grantee, her heirs or assigns, shall operate to forfeit the entire royalty hereby conveyed to the grantor herein, and any such conveyance or a portion thereof shall be null and void.'

Appellee further pleaded that such provisions cast a cloud upon his title. It seems to be the law in Texas, as well as the wright of authorities, that a restraint on alienation imposed on a fee simple title is unenforcible unless the instrument in which the restraint is imposed provides for an enforcible penalty in the event of violation. Bouldin v. Miller, 87 Tex. 359, 28 S.W. 940, 26 C.J.S., Deeds, § 145, p. 478; Somers v. O'Brien, 129 Kan. 24, 281 P. 888. There is no enforcible penalty provided for in the event of violation of the foregoing provision. Very similar language used in a similar instrument was held to be void for uncertainty in the case of Knight v. Chicago Corp., Tex.Civ.App., 183 S.W.2d 666, affirmed 144 Tex. 98, 188 S.W.2d 564, and it was there held that such provisions should be strictly construed. Under the facts and the law governing such it is our opinion that it was proper for the trial court to remove the cloud cast upon appellee's title by reason of the provisions herein quoted. In so doing the court did not cancel or remove any language from the...