Page v. Pan Am. Petroleum Corp.

• Decision Date: 27 August 1964
• Docket Number: No. 71,71
• Citation: 381 S.W.2d 949
• Parties: J. H. PAGE et al., Appellant, v. PAN EMERICAN PETROLEUM CORPORATION et al., Appellee.
• Court: Texas Court of Appeals

Page 949

381 S.W.2d 949

J. H. PAGE et al., Appellant, v. PAN EMERICAN PETROLEUM CORPORATION et al., Appellee.

No. 71.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 27, 1964.

Rehearing Denied Sept. 24, 1964.

Pritchett Harvey, Houston, for appellant.

Joyce Cox, of Fountain, Cox & Gaines, Cecil Cook and Neal Powers, Jr., of Butler, Binion, Rice & Cook, D. H. Austin of Liddell, Asutin, Dawson & Huggins, Houston, Cleveland Davis, Angleton, and George Wear, Houston, for appellee.

GREEN, Cheif Justice.

Summary judgment was granted the defendants in a trespass to try title suit. We affirm.

The parties will be referred to as in the trial court.

Defendants attached to their motion and supplemental motion for summary judgment or made a part thereof by appropriate reference, a number of affidavits and copies of a great many documents of public record, with a stipulation of counsel giving to such copies the same effect as originals duly proved in court would have. May of the exhibits, entirely uncontroverted, consisted of summary matter showing the lands in issue in their historic context and facts concerning their use for over one hundred years.

Plaintiffs, in their answer to defendants' motion, also by proper reference placed in the record a number of affidavits, particularly applicable to the issue of limitation as to the particular acreage sued for, and several depositions. All statements herein of facts concerning Elizabeth Page Chase, Joseph William Page, Samuel Harrison Page, the history of the title to the property involved, and other matters concerning these lands are taken from the undisputed facts evidenced by the above mentioned documents, depositions, affidavits and exhibits.

The basis of the trial court's action is shown by the findings set forth in the decree, as follows:

'The Court considered the pleadings, said motion and supplement thereto and the answers to said motion and said supplement, and all motions, affidavits, exhibits and depositions on file in this cause, and concluding that from the undisputed facts a conveyance divesting Plaintiffs' predecessors in title of all right, title and claim in and to the lands comprising the upper one-eighth (1/8) of the Imla Keep League, Abstract 79, Brazoria County, Texas, including the lands title to which is in issue in this cause, is presumed and is proved as a matter of law, the Court sustaining Grounds 'III' and 'IV' of said motion, thereby rendering unnecessary a determination of whether fact issue or issues are made with respect to Grounds 'I' and 'II', it is accordingly

'ORDERED, ADJUDGED and DECREED that the defendants' motion be and the same is hereby sustained, and that plaintiffs take nothing herein with respect to the land described as follows:'

It is established by the record without dispute that Elizabeth Page Chase acquired title to the upper one-eighth of the Imla Keep League in Brazoria County, Texas, in 1829, and that she died intestate in the middle of 1833. She left as her sole heirs her two sons, Joseph William Page, born in 1812, and Samuel Harrison Page, born in 1821. Joseph was appointed administrator of her estate and guardian of his minor brother Samuel. On December 22, 1833, the administrator filed an inventory of Elizabeth Chase's estate, listing as part thereof 'one-eighth of a league of land situated lying on San Bernard.'

In a deed undated but recorded in the Deed Records of Brazoria County, Volume C, on the same page as is another deed dated December 24, 1839, and filed for record January 2, 1840, Joseph William Page conveyed all of his right, title, interest and claim in the upper eighth of the Keep League to John Sweeny, a resident of Brazoria County, 'to have and to hold the same in fee simple forever. He, the said Joseph W. Page, relinquishing for himself and his heirs, the whole of said land in favor of the said John Sweeny.' There is no record of any conveyance out of Samuel Harrison Page of the one-half interest in the upper one-eighth of the Keep League plaintiffs claim he inherited from his mother.

Plaintiffs in the trial court and on this appeal claim:

(1) That Samuel Harrison Page inherited one-half of the upper eighth of the Keep League from his mother;

(2) That plaintiffs are descendants of Samuel Harrison Page and are inheritors from him of the title they claim he inherited; and (3) That defendants and those under and with whom they claim are, as owners of the other one-half of said property, co-tenants with plaintiffs and debarred by law from denying plaintiffs' claims of title.

Plaintiffs' claim is, indivisibly, claim to one-half of the upper one-eighth of the Imla Keep League; their suit here is an assertion of that claim as applied to the particular 39.87 acres of said land described in plaintiffs' final petition.

Defendants hold under a record chain of title commencing with the deed of 1839 from Joseph William Page to John Sweeny, a chain shown to be continuously active with every aspect of ownership for over one hundred years. It is their contention, and this is the proposition which was sustained by the trial court in granting the summary judgment, that as a matter of law long and notorious claim of title, dominion, payment by the defendants and their predecessors in title in taxes, the long acquiescence of plaintiffs and those under whom they claim in that dominion and claim of the defendants and their predecessors in title, the extreme notoriety to all concerned of these matters, and the opportunities of Samuel H. Page and his descendants to know the facts, establish as a matter of law that in some manner the title now attempted to be asserted by plaintiffs passed from their ancestors and is not now a title owned by them, but is a title owned by defendants.

After the death of their mother, Joseph and Samuel Page lived together, practically on the boundary line of Matagorda and Brazoria Counties, in close proximity to the land in question until Samuel married in 1850. They continued to live in that vicinity until Joseph died in 1854 in Matagorda County. He was a bachelor, and Samuel as his only heir inherited over 4000 acres of land from him. Samuel and his family moved from Matagorda County to Padre Island in 1855, afterwards moving to Nueces County, where he continued to reside until his death in 1893. The record shows that Samuel was keenly aware of his inheritances and during his long life engaged in numerous business transactions involving the property inherited from Joseph, as well as other property otherwise acquired. Though Samuel lived until he was 34 years of age in the immediate vicinity of the upper part of the Keep League, which for the last 15 of those years was well known as the Sweeny Plantation, and continued thereafter to live forty active years within less than two hundred miles, he never at any time made any claim that he had inherited any property in the Keep League from his mother and, in fact, never asserted any claim to the property here involved.

Instead, he and, after his death in 1893, his descendants remained silent as to any claim on the Keep League, while John Sweeny lived from 1839 or 1840 until has death in 1855 on his 'Home Plantation' including the land now in issue; while the Sweeny heirs partitioned and traded as to the property; while most of the one-eighth league was included for over forty years in the McGrew Plantation, Sophie McGrew being the daughter of John Sweeny; while it was thereafter sold and resold; while large areas were actually occupied by the improvements of purchasers; while taxes were paid by those claiming under the Sweeny chain of title; while all of the land affected became a part of the Old Ocean Oil Field, and were unitized with other large areas, and until the property became very valuable by reason of the production of oil. As evidence that plaintiffs do consider this property to have great value, they include in their suit a prayer for three million dollars damages for defendants' withholding this 39.87 acres from them.

Since public records began and are now found, the successive holders of defendants' chain of title have paid all the taxes levied against this property, and plaintiffs and their predecessors in claimed title have paid none. All public records of Brazoria County, the Deed and Tax Records and the State Comptroller's Records, show ownership claim and tax payments in defendants' chain of title.

Not until plaintiff G. H. Nagel, not related to any of the other plaintiffs, commenced searching for the descendants of Samuel Harrison Page in 1957 and took assignments of part interest in their claims as part consideration for his agreement to pay all costs of this litigation did the records reflect any claim of anyone to any portion of the upper eighth of the Keep League adverse to those claiming under the Sweeny chain of title.

The court records of the guardianship proceedings of Samuel H. Page are incomplete and do not close. An affidavit of the County Clerk of Brazoria County, executed in September, 1958, shows over 200 numbered pages of Volume A of the original probate records as missing. An affidavit of the deputy clerk in that office, of the same date, evidences that in a storm of 1932, many of the old records, including old probate papers, were blown across the prairie, and she was unsure that all had been found.

Prior to the act of the Fourth Congress of the Republic of Texas of 1840 making sales of land void unless evidenced by an instrument in writing, lands could be sold in Texas orally, no deed of conveyance being necessary for the...