Page v. Pan American Petroleum Corporation, 14976

• Decision Date: 07 February 1967
• Docket Number: No. 14976,14976
• Citation: 412 S.W.2d 797
• Parties: J. H. PAGE et al., Appellants, v. PAN AMERICAN PETROLEUM CORPORATION et al., Appellees. . Houston
• Court: Texas Court of Appeals

Page 797

412 S.W.2d 797

J. H. PAGE et al., Appellants, v.PAN AMERICAN PETROLEUM CORPORATION et al., Appellees.

No. 14976.

Court of Civil Appeals of Texas Houston.

Feb. 7, 1967.

Rehearing Denied March 16, 1967.

Sam Lee, Angleton, Paul Ferguson, Alvin, Thomas G. Sharpe, Jr., Brownsville, for appellants.

Roy L. Merrill, Corpus Christi, for Mobil Oil Corporation, formerly Socony Mobil Oil Co., Inc.

Vinson, Elkins, Weems & Searls, William R. Eckhardt, Houston, for University of Chicago, Chicago, Ill., and First Nat. Bank of Chicago, Chicago, Ill.

Floyd Enlow, Angleton, for B. G. Sweeny, J. H. Scoggins, Jr., Kate Sweeny Stewart, Alice Bennett Zigenbein and husband, Clarence E. Zigenbein, Katherine Bennett Kimball, Lester Sweeny, Frank Sweeny, Emma Sweeny Schendel, Montie Sweeny Eversole, Terry Sweeny and Floyd Enlow.

Fouts, Moore, Caldwell & Coleman, Joseph W. Moore, Houston, for J. S. Abercrombie, E. C. Fantham and Mary Lois Williams, Independent Executrix and Sole Devisee of Robert N. Williams, Deceased.

Leland B. Kee, Angleton, for Cleveland Davis, Pauline Davis, Trustee for Cleveland Davis, Jr., Pauline Davis, Trustee for James Ripley Davis, National Bank of Commerce of Houston (now Texas Nat. Bank of Commerce of Houston), A/C Joseph

W. Moore, and National Bank of Commerce of Houston (now Texas Nat. Bank of Commerce of Houston), A/C A. E. Amerman, Jr.

J. M. Slator, III, Houston, for W. H. Blades.

Sam G. Croom, Houston, for W. M. Dickey.

T. E. Kennerly, Houston, for T. E. Kennerly.

John G. Seaman, Corpus Christi, for Jane V. Modesett and husband, Jack Modesett.

Williams, Lee & Lee, Jesse J. Lee, Houston, for Mrs. Lula M. Sweeny, Ned Sweeny Holmes, Lucile Bennett Beeth and husband, Donald Beeth, Mrs. Della Sears, Jesse J. Lee, Mrs. Virginia Cameron, Elizabeth F. Storm and husband, Mark K. Storm, Frank Richardson Erskine, Mrs. Billie W. Kennerly, widow and Sole Devisee of Irl F. Kennerly, Deceased, Roland B. Voight, Montie Sweeny Eversole, Mrs. Eva Lou Sweeny Kennedy and husband, M. L. Kennedy, W. N. (Nash) Sweeny, Crews Sweeny, Odie Doubek Sweeny, Helen Marie Sweeny Mott(sued as Ellen Louise Sweeny Mott) and husband, L. W. Mott, Mrs. Betty Lee Smith Wood, Mrs. Lucile Smith, Harry L. Richardson, Jr., Trustee, Carol Lynn Richardson, George C. Gaines, Jr., and Joyce Cox .

Kilgore & Kilgore, James A. Kilgore, Dallas, for P. J. Watrous, Trustee, and Bankers Trust Co. Group of New York.

Fountain, Cox & Gaines, Joyce Cox, Houston, for Pan American Petroleum Corporation, Continental Oil Co., Jeanetta K. Bennett, Nannie Bennett Outlar and husband, Dr. L. B. Outlar, Fred W. Waechter, William E. Harvey and the First City Nat. Bank of Houston, Trustees for AccountNo. 358.

COLEMAN, Justice.

This is an appeal from a summary judgment for the defendant entered in a trespass to try title case.The principal question involved is whether a lost deed can be presumed from the evidence presented as a matter of law.

The land involved in this appeal is an undivided one-half interest in approximately eighty three acres out of the westerly corner of the upper one-eighth of the Imla Keep League, Brazoria County, Texas .

The Page heirs were plaintiffs in two previous suits involving the title to portions of the upper one-eighth of the Imla Keep League.In CauseNo. 38,868 in the District Court of Brazoria County, Texas, reported on appeal as Page v. Pan American Petroleum et al., 327 S.W .2d 469(Tex.Civ.App.-Waco, 1959, err. refused n.r.e.), the defendant's motion for summary judgment was sustained on the basis of affidavits establishing adverse possession.In CauseNo. 39,056 in the District Court of Brazoria County, Texas, reported on appeal as Page v. Pan American Petroleum Corporation et al., 381 S.W.2d 949(Tex.Civ.App.-Corpus Christi, 1964, error refused n.r.e.), the defendant's motion for summary judgment was sustained on the basis of a presumed grant.

The particular tract of land involved in this suit was the subject of a prior suit out of the District Court of Brazoria County, Texas, reported on appeal as Bernard River Land Development Company v. Sweeny, 216 S.W.2d 597(Tex.Civ.App.-Galveston, 1948, error refused n.r.e.).The plaintiffs in this suit were not parties to that cause where the record title holders recovered judgment in the face of pleas of presumed grant and limitations.

The entire record in each of these suits was presented to, and considered by, the trial court.The record is voluminous.In 1824 Imla Keep was granted a league of and in Austin's Colony.Anthony Clark and his sister, Elizabeth Chase, together with her two sons, resided in Austin's Colony.In 1829 Elizabeth acquired the upper eighth of the Keep League.Both Anthony and Elizabeth died in 1833, and Elizabeth's two sons, Joseph William Page and Samuel Harrison Page, survived.Joseph William qualified as administrator of his mother's estate and guardian of the estate of his minor brother, Samuel Harrison Page, in 1833.Appraisers were appointed in 1835 and the appraisal filed listed 'One-eighth of a League of land, situate, lying and on Bernard.'Joseph William filed accounts for the years 1834, 1835, 1836 and 1837, but no further proceedings in the estates are recorded.

In 1839Joseph William Page by an instrument reciting a consideration of One Dollar and 'other good causes and considerations''granted, bargained, sold, and quitclaimed' unto John Sweeny, his heirs and assigns, 'all my right, title, interest, and claim in and to that certain piece of land situate and lying in the County of Brazoria on the west side of the River San Barnard, viz. the upper eighth of the upper quarter of League of land granted to Keep by the Mexican Government joining the McCormick League.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 * * *.'

In 1839Samuel Harrison Page was at least seventeen years of age since he secured a land certificate in his own right in that year.He purchased land in Matagorda County in 1842, and another tract in the same county in 1849.He sold his home in Matagorda County in 1856, but this tract was reconveyed to him in 1858 by a deed in which his residence was recited as Cameron County.In August, 1858, this tract was again conveyed by Harrison Page, the acknowledgment being taken in Nueces County.In 1860 a tract of land in Nueces County was conveyed to Eleanor Page, the wife of Samuel H. Page.Joseph W. Page died in Matagorda County in 1854.Samuel H. Page inherited 4320 acres of land from his brother.Matagorda County adjoined Brazoria County.Apparently Samuel H. Page lived near the land in controversy until 1858 and was a large land owner with lands in several counties.He died in Nueces County in 1893.

In 1836John Sweeny purchased from William J. Russell one-eighth of a League of land known as the lower half of the upper quarter of the League of land granted to Imla Keep by the Mexican Government.The same year he purchased approximately 1666 acres of land out of the Charles Breen League.The Keep and the Breen Leagues were adjoining grants.John Sweeny and his wife had seven sons and two daughters.He owned many slaves and established a great plantation on these lands.In 1853John Sweeny conveyed to his daughter, Sophia McGrew, one-half of the upper quarter of the Imla Keep League .John Sweeny died in 1855, his wife having predeceased him.In December, 1855, the children of John Sweeny partitioned the lands which they had inherited from their father and mother.By this deed Sophia McGrew's title to the land previously deeded to her by her father was confirmed, and specific tracts of land were set off to certain others of the children.The plantation tract, described as the home plantation of John Sweeny, consisting of 550 acres out of the Breen League and 545 acres out of the Imla Keep League, was conveyed in trust to John Sweeny, Jr., who was to sell the land and divide the proceeds.By various conveyances Thomas Sweeny and Sophia McGrew acquired the interests of the other children in the home Plantation.Sophia McGrew lived on the home Plantation.In Bernard River Land Development Company v. Sweeny, supra, the Thomas Sweeny heirs were adjudged owners of the 83 acre tract at issue as against the claims of the assigns of Sophia McGrew.There was evidence in that case that this land was thickly wooded open range.Apparently neither the Thomas Sweeny heirs nor the heirs and assigns of Sophia McGrew used this land prior to 1909, but since that time it has been enclosed with other lands for brief periods and used for pasturing cattle by those claiming under the McGrew title.There was no evidence that the heirs of Thomas Sweeny made any...