Patterson v. Shell Petroleum Corporation

• Decision Date: 27 May 1940
• Docket Number: No. 5160.,5160.
• Citation: 143 S.W.2d 208
• Parties: PATTERSON et ux. v. SHELL PETROLEUM CORPORATION et al.
• Court: Texas Court of Appeals

143 S.W.2d 208

PATTERSON et ux. v. SHELL PETROLEUM CORPORATION et al.

No. 5160.

Court of Civil Appeals of Texas. Amarillo.

May 27, 1940.

Rehearing Denied September 23, 1940.

Appeal from District Court, Yoakum County; Louis B. Reed, Judge.

Action by B. T. Patterson and wife against the Shell Petroleum Corporation and others to quiet title and to cancel a quitclaim deed. From an adverse judgment, plaintiffs appeal.

Reversed and remanded.

Whitaker, Perkins & Turpin, of Midland, and Joe J. McGowan, of Brownfield, for appellants.

Carl Rountree, of Lamesa, W. A. Griffis, Jr., of Seagraves, Bradley & Wilson, of Lubbock, and Scott W. Key and Barksdale Stevens, both of Houston, for appellees.

FOLLEY, Justice.

This suit was originally filed by the appellants, B. T. Patterson and wife, Eva Patterson, alleged to be residents of Leon County, Texas, on May 18, 1938, against the appellees, the Shell Oil Company, George Baumgart, D. A. Robertson and others, in the nature of an action in trespass to try title involving the NE¼ of Section 826, Block D, in Yoakum County, Texas. By amended petition filed on May 25, 1939, the appellants sought to quiet title in them to the above land and to cancel a quitclaim deed of the date of November 17, 1937, from appellants conveying the land to D. A. Robertson. The trial court sustained general demurrers filed by the appellees to appellants' first amended original petition, and, upon appellants' refusal to amend their pleadings, dismissed the suit. It is from such action that this appeal is prosecuted.

The trial court having sustained a general demurrer to appellants' petition we are confronted with the rule which compels us to assume the truth of the facts alleged and to resolve every reasonable intendment in favor of the sufficiency of the petition. Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744, and authorities therein cited. In this connection, however, we want it distinctly understood that our conclusions hereinafter expressed are governed by the above rule and are not to be misconstrued as findings of fact upon the merits of this case.

The appellants alleged that on March 20, 1917, Edward Randall and wife, Laura B. Randall, conveyed to J. N. Farris Surveys 828, 826, 866 and 892, in Block D Yoakum County, Texas; that Randall reserved a vendor's lien upon said land to secure the payment of ten notes for $1,280 each; that on March 6, 1917, Edward Randall and wife, joined by Mary Manson Ellis and her husband and Edward Randall Manson, conveyed Surveys 827, 829 865 and 893 in Block D of Yoakum County to J. N. Farris, reserving a vendor's lien to secure ten other notes each in the sum of $1,280, five of such notes, Nos. 1, 3, 5, 7 and 9, being payable to Mary Manson Ellis and Edward Randall Manson, and the other five, Nos. 2, 4, 6, 8 and 10, being payable to Edward Randall; that thereafter Notes Nos. 1, 2, 3, 4 and 5 were paid; that J. N. Farris died leaving a will devising all of his property to his wife, Maggie C. Farris, said will having been duly probated; that thereafter on or about March 15, 1923, Maggie C. Farris, for herself and as the independent executrix of the estate of her deceased husband, conveyed the above eight sections of land to the appellee, George Baumgart, who as a part consideration assumed the payment of the above unpaid notes in the two series above referred to; that on March 20, 1924, Baumgart executed and delivered his ten promissory notes for $800 each, numbered 1 to 10, inclusive, said notes Nos. 2 and 4 being payable to Mary Manson Ellis and the other eight payable to Edward Randall, all of said notes being secured by a vendor's lien on Sections 829, 828, 827, 826 and 866, and being in renewal and extension of the unpaid balance of all of the notes and liens above described; that in such extension agreement it was stipulated that Baumgart, his heirs and assigns, should have the right at any time to secure a release of any of the land from the liens upon payment of not less than $2.50 per acre for the land desired to be released, said payments to be applied to the last maturing unpaid notes, provided such released tracts should not contain less than 160 acres; that thereafter by deed dated April 4, 1924, Baumgart and wife conveyed Sections 829, 828, 827, 826 and 866 to Zella M. White for $13,008.60 cash, the further consideration of her assumption of the payment of a debt of $8,000 as evidenced by the unpaid notes of the two series above mentioned, her further assumption of the payment of $3,432 due the State of Texas on Sections 828, 826 and 866, and the further consideration of her execution of fourteen vendor's lien notes dated April 4, 1924, the first thirteen being in the sum of $1,000 each and payable respectively to Baumgart on or before January 1, 1926 to 1938, inclusive, and the fourteenth note being for $2,559.40, payable on or before January 1, 1939, said notes bearing 8% interest and containing accelerated maturity clauses; that at the time said deed and the above notes were executed Baumgart and Zella M. White entered into an agreement to the effect that should Zella M. White, her heirs or assigns sell any of said land in tracts of 160 acres or multiples thereof, Baumgart would segregate the lien securing the payment of the notes held by him so as to permit each of said tracts to bear its proportionate part of his lien; that by deed of April 25, 1924, Zella M. White, joined by her husband, P. F. White, conveyed to B. F. Williams Sections 826 and 866, the recited consideration being $10 cash, the execution by Williams of two notes of $500 each payable to Zella M. White, each of said sections to carry a vendor's lien by virtue of one of such notes; that in said deed Williams assumed the payment of $3,200, being two-fifths of the blanket lien and indebtedness of $8,000 held by Edward Randall in connection with the notes executed by Baumgart, assumed the payment of $6,223.76, or two-fifths of the blanket mortgage and debt held by Baumgart against the five sections of land conveyed by Baumgart to Zella M. White, and further assumed payment of the unpaid obligation due the State of Texas for purchase money in the original grant from the State; that Williams and wife by deed dated October 10, 1924, conveyed the NE¼ of Survey 826 to W. E. Young and W. A. Bynum, the recited consideration being $10 cash, the assumption by grantees of $400 due Edward Randall, $777.97 due Baumgart and $125 due Zella M. White, alleged to be the proportionate amounts due on the 160 acres to the respective lienholders, and the further assumption of the indebtedness due the State of Texas upon said quarter section; and that by deed of January 5, 1925, Young and Bynum conveyed the 160 acres to the appellant, B. T. Patterson, the recited consideration being $2,000 in cash, the assumption by Patterson of the payment of the $400 indebtedness due Edward Randall, the $777.97 due Baumgart, the $125 due Mrs. Zella M. White and the $1.75 per acre, less 1/40 thereof, as the amount due the State of Texas.

The appellants further alleged that thereafter Baumgart filed suit in the District Court of Yoakum County, Texas, against certain defendants, including the appellant Patterson, for debt and foreclosure upon Sections 828, 827, 826 and 866 (which included the land herein involved); that Baumgart alleged that the residences of Patterson and the other defendants were unknown to him; that Patterson and all other defendants in said suit were cited by publication to be and appear in said court on the fourth Monday in December, 1927, the same being the 26th day of December, 1927; that thereafter on appearance day judgment was rendered for Baumgart against all of the defendants for debt and foreclosure upon the four sections of land; that none of the defendants in such suit, other than Patterson, owned or claimed any interest in the NE¼ of Section 826; that on February 14, 1928, after the date of the judgment, order of sale was issued and on April 3, 1928, the four sections of land were sold to Baumgart under said order of sale for a consideration of $3,200, the amount bid at such sale; that said judgment, order of sale and sheriff's deed made by virtue thereof were void because no affidavit for citation by publication was made as required by law, and because a personal judgment was rendered against the defendants therein; that the citation by publication was void and the judgment rendered thereon a nullity because the defendants in such judgment resided in Texas and their places of residence were known to Baumgart and his attorney; that the sale was void under said order of sale because it was made on April 3, 1928, which was after the return day of the order of sale issued on February 14, 1928, and returnable in thirty days; that the sale of the land for $3,200 was grossly inadequate; that no citation was ever served upon the defendants in such suit nor was there any waiver of service or any appearance by the defendants; that the citation by publication was void for the further reason that it was not published in Yoakum County where there was a newspaper at such time in which the same could have been legally published, but on the contrary was published in Terry County, Texas; that the appellant Patterson, defendant therein, could and would have redeemed his land from the indebtedness and liens if he had known of the suit; that Baumgart fraudulently concealed the suit from the Pattersons and for such purpose caused such action to be brought and Patterson to be cited by publication although Baumgart and his attorney knew the whereabouts and place of residence of all the defendants in such suit; that Baumgart cited such defendants by publication knowing that they did not live in Yoakum County and that they would not see the publication or know of the prosecution of the suit; that by reason of such facts the appellants did not appear and defend such suit nor did they discover...