Parks v. Powell, 4236.

• Decision Date: 07 October 1932
• Docket Number: No. 4236.,4236.
• Parties: PARKS v. POWELL et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

56 S.W.2d 323

PARKS v. POWELL et al.^*

No. 4236.

Court of Civil Appeals of Texas. Texarkana.

October 7, 1932.

Rehearing Denied November 3, 1932.

Appeal from District Court, Gregg County; Will C. Hurst, Judge.

Suit by J. C. Parks against N. P. Powell, wherein W. E. McKinney intervened, and with defendant brought a cross-action, and wherein Alberta Christain Ervin and another were made parties defendant. Judgment for intervener, and plaintiff appeals.

Affirmed in part, and in part reversed and rendered.

George Prendergast, of Marshall, Lacy & Molhusen, of Longview, and R. E. Allday and Boyles, Brown & Scott, all of Houston, for appellant.

Wynne & Wynne, of Longview, for appellees.

SELLERS, J.

J. C. Parks brought this suit in the district court of Gregg county against N. P. Powell to recover an undivided one-half interest in certain oil and gas leases on twenty acres of land located in Gregg county, a part of the G. W. Hooper survey, and, in the alternative, alleged that in the event the court should determine that he was not entitled to an undivided one-half interest in the leases, then that he have judgment for a two-ninths interest. One W. E. McKinney was permitted to intervene in the suit, and he and N. P. Powell filed a joint answer in which it was alleged that intervener McKinney was the owner of all the lease interest on the twenty acres of land, and that the defendant Powell had purchased all the leases on the land involved for the intervener, and, by way of cross-action in trespass to try title, sought to recover title to all the lease interest in the land involved and to cancel the leases in the name of Parks as a cloud upon the intervener's title. The land was owned by nine Wilhite heirs. This appeal involves a one-ninth interest owned by Sam Wilhite and a one-ninth interest owned by Alberta Christain Ervin and Hobart Christain jointly. The two last-named parties are children of one of the Wilhite heirs, deceased. Alberta Christain Ervin and Hobart Christain were made parties defendant at the instance of the defendant Powell and intervener McKinney, and they filed an answer denying the title of intervener McKinney.

The case was tried before the court without the aid of a jury, and resulted in judgment in favor of intervener McKinney for title to all the lease interest, and denying to the plaintiff Parks any interest whatever, and he has duly prosecuted this appeal.

The facts, so far as they are material to the errors assigned on this appeal, may be briefly stated as follows: J. C. Parks in person, or by his agent, secured from Sam Wilhite a producer's 88 form oil and gas lease covering his interest in the land, which was a one-ninth interest, reciting a cash consideration of $10 paid, and a like lease from Alberta Christain Ervin and Hobart Christain, who owned a one-ninth interest together. The evidence is sufficient to show that the cash consideration of $10 recited as paid was, in fact, never paid. These leases were made to J. F. Wilhite and J. C. Parks. However, J. F. Wilhite knew nothing about the leases being taken in his name, and Parks admits that J. F. Wilhite was a mere nominal party. These leases were duly recorded, and, so far as the instruments themselves are concerned, they are regular in all respects as a conveyance under the statute. The parol evidence shows that Parks secured these leases upon the understanding that he would sell them for the lessors so as to net the lessors $65 per acre, and that he was to receive for his services one-half of whatever the leases sold for above the $65 per acre. Some time after these leases were delivered and recorded, N. P. Powell purchased from the same parties for intervener similar leases on the same land for a cash recited consideration of $50 per acre, which was paid; the intervener being at the time the owner of leases on the other seven-ninths interest in the land.

The appellant contends on this appeal that the court was not authorized under the pleadings and evidence to cancel the leases executed to J. F. Wilhite and appellant by Sam Wilhite and Alberta Christain Ervin and Hobart Christain.

The appellees in their counter proposition asserted that (1) the leases from Sam Wilhite, Alberta Christain Ervin, and Hobart Christain to J. C. Parks and J. F. Wilhite, having been executed to such lessees as the agent of the lessors, the sale to McKinney was a revocation of the leases and the agency and the cancellation of...