Payne v. Bracken

• Citation: 115 S.W.2d 903
• Decision Date: 27 April 1938
• Docket Number: No. 2183-7070.,2183-7070.
• Parties: PAYNE v. BRACKEN et al.
• Court: Supreme Court of Texas

115 S.W.2d 903

PAYNE v. BRACKEN et al.

No. 2183-7070.

Commission of Appeals of Texas, Section A.

April 27, 1938.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit to foreclose a judgment lien by Bryan W. Payne against J. A. Bracken and others. To review a judgment of the Court of Civil Appeals, 90 S.W.2d 607, affirming a judgment of the district court in favor of the defendant, the plaintiff brings error.

Affirmed.

John S. Morris, of Fort Worth, and H. G. Becker, of Dallas, for plaintiff in error.

Lasseter, Simpson & Spruiell, of Tyler, for defendants in error.

GERMAN, Commissioner.

Prior to October 22, 1929, J. S. Kimbrough owned an undivided 3/32 interest in and to all oil, gas, and other minerals in, on, and under 40 acres of land in Van Zandt county. On the date mentioned, Kimbrough, Van McPhail, and J. D. Wiley associated themselves together for the organization of a corporation to be known as the East Texas Oil Corporation. They caused a charter to be prepared in due form, executed same, and immediately forwarded it to the Secretary of State with proof concerning subscription to, and payment of, capital stock. On October 23, 1929, Kimbrough conveyed the mineral interest above mentioned to said East Texas Oil Corporation, and this conveyance was filed for record October 30, 1929. The consideration for the conveyance was the issuance by the proposed corporation of stock equal in value to the agreed value of the mineral interests. This stock was afterwards issued and delivered to Kimbrough. It would appear that this conveyance to the corporation was for the purpose of paying up subscription to capital stock to that extent.

The charter of the East Texas Oil Corporation was not actually filed by the Secretary of State until November 6, 1929. On November 5, 1929, that is, one day before the filing of the charter, plaintiff in error filed abstract of judgment which he held against Kimbrough and one J. T. Miller in the county clerk's office of Van Zandt county, and same was properly indexed on that date.

On October 30, 1930, the corporation, the name of which had been changed to East Texas Petroleum Corporation, conveyed the mineral interest mentioned to J. A. Bracken. This suit was instituted in the district court of Van Zandt county by plaintiff in error Bryan W. Payne against J. A. Bracken and others. The purpose of the suit was to foreclose lien of the judgment, abstracted in the manner aforesaid, against the mineral interest previously owned by Kimbrough. Payne will be referred to as plaintiff. The theory of his case is that as the charter of the East Texas Oil Corporation had not been filed with the Secretary of State prior to the date that Kimbrough made his conveyance to the corporation, the deed was void for want of a grantee, and therefore his lien filed as of date November 5, 1929, attached before the filing of the charter on November 6, 1929; that as Kimbrough's deed passed no title to the corporation, its deed passed none to Bracken and those who held under him.

Plaintiff was denied recovery in the trial court, and the Court of Civil Appeals affirmed the judgment of the district court. 90 S.W.2d 607. The Court of Civil Appeals based its decision primarily upon the proposition that at the date of the conveyance to the East Texas Oil Corporation by Kimbrough that corporation then had a de facto existence and title passed to it. It was upon this point that writ of error was granted.

By order entered herein on October 14, 1936, the cause was dismissed as to all defendants in error except J. A. Bracken, and he will be referred to as defendant.

We are not in accord with the...