Pagel v. Pumphrey

• Decision Date: 04 June 1947
• Docket Number: No. 11715.,11715.
• Citation: 204 S.W.2d 58
• Parties: PAGEL et al. v. PUMPHREY et al.
• Court: Texas Court of Appeals

204 S.W.2d 58

PAGEL et al. v. PUMPHREY et al.

No. 11715.

Court of Civil Appeals of Texas. San Antonio.

June 4, 1947.

Rehearing Denied June 25, 1947.

Appeal from District Court, La Salle County; H. D. Barrow, Judge.

Suits in trespass to try title by Ada Pumphrey and others against L. A. Pagel and others to recover a mineral interest in certain land. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Lawler & Childress, of Houston, and Willson & Hargrove, of Cotulla, for appellants.

O. R. Armstrong and C. D. Bates, both of Cotulla, for appellees.

MURRAY, Justice.

This is an appeal from a judgment in nineteen consolidated trespass to try title suits wherein appellees recovered from appellants an undivided one-third mineral interest in approximately 10,000 acres of land, under nineteen separate ownerships, situated in La Salle County, Texas. The trial was before the court without a jury. The appellees are the heirs or assigns of one Andrew Armstrong, Sr., and appellants are the assigns of Alexander J. Uhl, Jr., and Henry Caley.

By written stipulation the parties agreed:

"(1) That Andrew Armstrong, Sr., is the common source of title;

"(2) That plaintiffs are the sole surviving heirs of Andrew Armstrong, Sr.;

"(3) That the only interest plaintiffs claim in the lands described in their several petitions herein is the undivided one-third mineral interest excepted and reserved in a deed dated April 17, 1901, from Andrew Armstrong, Sr., to Henry Caley and Alexander J. Uhl, Jr., conveying 18,020 acres of land, including the tracts here in controversy, and that plaintiffs do not otherwise contest or question the validity or regularity of the title of defendants to the several tracts of land described in plaintiffs' petitions;

"(4) That the title to the several tracts of land described in plaintiffs' petitions passed to the several defendants by a regular chain of duly recorded conveyancees and other muniments of title from and under Henry Caley and Alexander J. Uhl, Jr., the grantees in the aforesaid deed, subject only to the claim of plaintiffs to to the one-third mineral interest excepted and reserved by Andrew Armstrong, Sr., under the terms of that deed "(5) That the 19 suits should be consolidated for trial."

Appellants concede that under a deed of April 17, 1901, from Andrew Armstrong, Sr., to Henry Caley and Alexander J. Uhl, Jr., Andrew Armstrong, Sr., effectively excepted and reserved an undivided one-third mineral interest in the lands conveyed thereby. The controlling question presented on the appeal is whether appellants and their predecessors in title thereafter acquired the title to that mineral interest, either (1) by voluntary relinquishment thereof by Andrew Armstrong, Sr., or (2) by operation of the statutes of limitation.

Appellants contend that on April 18, 1903, by a legally sufficient instrument, the reserved mineral interest was relinquished and quitclaimed by Andrew Armstrong, Sr., to appellants' predecessors in title, as provided by the terms of an alleged prior parol agreement to that effect; but, in the alternative, if the instrument which was executed in performance of the alleged parol agreement did not have the legal effect of relinquishing such interest, then appellants claim the superior equitable title thereto by reason of a full and complete performance of the terms of such contract by their predecessors in title.

Appellants further contend that the one-third mineral interest was relinquished by a deed and assignment dated April 28, 1903, from Andrew Armstrong, Sr., to H. P. Drought & Company, and a subsequent release and quitclaim deed, dated November 28, 1905, from H. P. Drought & Company to appellants' predecessors in title. Lastly, appellants assert title to such mineral interest under the statutes of limitation.

A decision of this appeal will turn upon (1) the construction of the aforesaid instruments, (2) the admissibility of and the legal effect to be given to evidence of certain transactions between predecessors in title of appellees and appellants, which preceded and followed the execution of such instruments, and (3) the legal effect of alleged acts of adverse possession of appellants and their predecessors in title.

The instruments above referred to have been discussed and their effect construed in an opinion by the El Paso Court of Civil Appeals styled Armstrong et al. v. Humble Oil & Refining Co. et al., reported in 145 S.W.2d, beginning at page 692. There it was held that these instruments were not sufficient to relinquish the undivided one-third mineral interest theretofore excepted and reserved by Andrew Armstrong, Sr., in the deed from himself to Caley and Uhl, Jr., dated April 17, 1901.

It might be well to here set forth chronologically all the facts concerning these transactions. On April 17, 1901, Andrew Armstrong, Sr., was the owner of 18020 acres of land situated in La Salle County, Texas. He borrowed the sum of $10,800 from M. J. Barlow & Company, giving his note therefor and a deed of trust upon the north 9081 acres of the above tract of land to secure the payment of this note. On the same day he sold to Caley and Uhl, Jr., the entire 18020 acre tract in consideration of a cash payment of $5,000, the assumption by the grantees of the $10,800 note in favor of M. J. Barlow & Company, and the execution of six promissory notes each in the sum of $4,124.50. A vendor's lien was retained to secure the payment of the assumed Barlow & Company note, as well as the six purchase money notes. In this conveyance Armstrong, Sr., reserved to himself an undivided one-third mineral interest out of the entire tract conveyed to Caley and Uhl, Jr.

On July 1, 1901, Armstrong, Sr., borrowed $10,800 from H. P. Drought & Company, and to secure his note in that amount pledged the six promissory notes executed and delivered to him by Caley and Uhl, Jr. Caley conveyed his interest in the land to C. A. Goeth and Chas. Duessen, who did not assume the payment of the Barlow note, but took the property subject to this note. The Lockwood National Bank of San Antonio ultimately became the owner of the Barlow note.

On April 18, 1903, Uhl, Jr., C. A. Goeth and Chas. Duessen paid to the Lockwood National Bank the $10,800 note and a release and quit-claim was executed by Lockwood National Bank and Armstrong, Sr. It is claimed by appellants that by this instrument Armstrong, Sr., relinquished his reserved one-third interest in the minerals.

On April 28, 1903, Armstrong, Sr., for the total consideration of $20,409.90, sold and assigned to Drought & Company the six Caley and Uhl, Jr. notes, together with the vendor's lien and superior title securing their payment. It is also contended that by this assignment Armstrong, Sr., divested himself of the reserved one-third mineral interest.

On November 28, 1905, H. P. Drought & Company released and quit-claimed to Caley and Uhl, Jr., and C. A. Goeth and Chas. Duessen, as assignees of Caley, the vendor's lien and superior title securing the payment of the six notes. The consideration of this release and quit-claim was the payment of these notes by Uhl, Jr., and C. A. Goeth and Chas. Duessen.

As showing the attending circumstances surrounding the execution of these instruments, C. A. Goeth gave certain oral testimony which was first received by the trial court, over the objection of appellees, but later stricken from the record. The testimony was as follows, to-wit:

"Q. Prior to the time the Barlow & Company note was paid did you ever have any discussions with any one here representing Lockwood National Bank regarding that note or its payment? A. I had a discussion with Mr. A. J. Lockwood, President of the Bank.

"Q. What was the substance of that discussion? A. I told Mr. Lockwood that I had acquired an undivided one-quarter interest in the ranch, but that—I want to say here that the Lockwood National Bank was the holder of the note at that time from Barlow, the note had been transferred by Barlow & Company to the Lockwood National Bank. As previously stated, I told Mr. Lockwood that I had acquired a one-quarter interest in the land, very little had been paid on the land, and there was an outstanding mineral interest in Mr. Armstrong. That there was an outstanding mineral interest in favor of Andrew Armstrong, Sr., which might not be advantageous in the handling of the ranch, the sale of it, that I did not like the ranch as well as I thought I would, that the land, particularly along the river, was not nearly as good as I thought it was when I bought the ranch, the lands along the north side of the river were not suited for irrigation purposes, as I thought they were, and that money could be made on the ranch in subdividing the land along the Neuces River, dividing it out and selling it to irrigation farmers. In fact we have gotten a release on 735 acres, approximately that, and put it into irrigation, and Mr. Uhl took one-half of that land, approximately one-half of the land and Duessen and Goeth the other half. I told Mr. Lockwood if Andrew Armstrong, Sr., would relinquish his mineral interest— that we would arrange to pay off that note if Mr. Armstrong would release that interest to us. Mr. Lockwood, I think he knew as well as I did, that Judge C. C. Clamp was attorney for Andrew Armstrong, Sr., he said the would take it up either with Mr. Armstrong or Mr. Clamp, C. C. Clamp. That is the substance of the conversation between Mr. Lockwood and myself.

"Q. Thereafter did you hear either from Andrew Armstrong, Sr., or Judge Clamp about the matter? A. The next time I heard about it was very shortly afterwards. Judge C. C. Clamp called me and said that Mr. Armstrong was very desirous of having that note paid and he would relinquish his mineral interest in the land if we paid the note.

"Q. Did Judge Clamp tell you why Mr. Armstrong was interested in getting the Barlow note paid? A. He told me that Mr. Armstrong, Sr., was...