Permian Oil Co. v. Smith

• Decision Date: 04 February 1932
• Docket Number: No. 2559.,2559.
• Citation: 47 S.W.2d 500
• Parties: PERMIAN OIL CO. v. SMITH et al.
• Court: Texas Court of Appeals

47 S.W.2d 500

PERMIAN OIL CO. v. SMITH et al.

No. 2559.

Court of Civil Appeals of Texas. El Paso.

February 4, 1932.

Rehearing Denied March 10, 1932.

Error from District Court, Pecos County; P. R. Price, Judge.

Suit by the Permian Oil Company against Mrs. M. A. Smith and others. Judgment for defendants, and plaintiff brings error.

Affirmed.

J. B. Dibrell, of Seguin, Dibrell & Starnes, of Coleman, John Sayles, of Abilene, and Hart Johnson, of Ft. Stockton, for plaintiff in error.

John Rogers, of Tulsa, Okl., and Smith & Neill, of San Angelo, for defendant in error Chapman.

James Cornell, Gibbs & Lewis, Harris, Harris & Sedberry, and J. W. Stovall, all of San Angelo, Burney Braly, Hiner & Pannill, and Phillips, Trammell, Chizum, Price & Estes, all of Ft. Worth, W. C. Jackson, of Ft. Stockton, Kilgore, Rogers & Montgomery, of Wichita Falls, Thompson, Mitchell, Thompson & Young, of St. Louis, Mo., and R. H. Whilden and Thompson, Knight, Baker & Harris, all of Dallas, for other defendants in error. Statement of Case.

HIGGINS, J.

This suit was instituted June 21, 1928, by plaintiff in error against the defendants in error to recover section 103, in block 194, Texas Central Ry. Co. survey in Pecos county, containing 407 acres, and to recover the value of oil produced from the land to the date of trial.

For convenience the parties will be designated as they were in the trial court.

In the amended petition the land is described as follows:

"Sec. 103, Block 194, T. C. Ry. Co. Original Grantee, situated in Pecos County, Texas, described as follows: Beginning at a stk and md at the N. E. Cor of Sur. No. 102, Block No. 194, T. C. Ry. Co. Cert. 2303, for the N. W. Cor of this Sur; Thence E. 1900 vrs to stk and md for the N. E. Cor. of this sur; thence S. 1209 vrs. to a stk and md for the S. E. Cor. of this sur; thence W. 1900 vrs. to a stk and md for the S. E. cor of this sur; thence N. 1209 vrs. to the place of beginning.

"Four hundred and seven (407) acres of land described by metes and bounds as follows:

"Beginning at a set rock in the South boundary line of Runnels County School Land Sur. No. 3, marked N. W. 103, S-B, from which set rock North edge of Cap Rock bears North 88 degrees 17' West and pointed peak bears North 8 deg. 35' West which set rock and beginning corner is 3800 vrs North 89 Deg. 48' East from the S. W. Cor. of said Runnels County School Land Sur. No. 3, said South West corner of said Runnels County School Land Sur. No. 3, being a rock mound marked S. W. 3 R. C. S. L. which is 215 vrs South of another rock mound from which other rock mound west edge of Cap Rock bears South 13 degrees 52' East and high point of sharp top hill bears North 78 Deg. 53' East.

"Thence from said set rock marked N. W. 103 S-B, (beginning corner of this tract) North 89 deg. 48' East and with South boundary line of said Runnels County School Land Sur. No. 3, a distance of 1900 vrs to a set rock marked N. E. 103 and N. W. 104, S-B, from which cap rock L side saddle bears South 21 deg. 26' East, pointed peak bears North 18 deg. 6' west and north edge cap rock bears North 89 degrees 11' West;

"Thence at a right angle to the South line of said Runnels County School Land Sur. No. 3, South 0 deg. 12' East 1209 vrs to a set rock marked S. E. 103 and S. W. 104 S-B from which point peak bears N 18 degrees 27' West and North edge cap rock bears S 68 Degrees 9' West:

"Thence South 89 degrees 48' West 1900 vrs. to a set rock marked S. W. 103, S-B from which edge cap rock L side saddle in mountain bears South 52 degrees 19' East and L edge cap rock bears S 15 degrees 57' East:

"Thence north 0 degrees 12' West 1209 vrs to the place of beginning."

Survey 103 was patented to M. C. Miller, assignee, on April 13, 1894. The field notes in the patent read:

"Beginning at a stake and mound at the N. E. Cor. of Sur. No. 102, Block 194, T. C. R. R. Co., Cert. 2302, for the N. W. Cor. of this Survey;

"Thence East 1900 varas to a stake and mound for the N. E. Cor. of this Survey;

"Thence South 1209 varas to a stake and mound for the S. E. Cor. of this Survey;

"Thence West 1900 varas to a stake and mound for the S. W. Cor. of this Survey;

"Thence North 1209 varas to the place of beginning."

By deed dated November 28, 1896, Miller conveyed survey 103 to the City National Bank of Austin, and by deed of July 6, 1905, the bank conveyed the same to John Monroe.

By patent dated November 19, 1886, survey No. 35, block 194, Gulf, Colorado & Santa Fé Railway Company survey containing 640 acres of land was granted by the state to J. S. Daugherty, assignee. Title to survey 35 passed from Daugherty to John Monroe by deeds dated September 2, 1902, and September 12, 1908. By regular claim of title it was shown that John Monroe became the owner of section 104, block 194, Texas Central Railway Company survey.

After introducing in evidence the patents and deeds mentioned, the plaintiff then offered in evidence the pleadings and judgment rendered in cause No. 854, John Monroe v. T. F. Hickox, in the district court of Pecos county That suit was filed August 22, 1910.

The amended petition upon which that case was tried was in the statutory form of the action in trespass to try title; the land being described in the petition as follows:

"First.

"All Section No. 104, Block 194, T. C. Ry. Co. original grantee, situated in Pecos County, Texas.

"Second.

"All of Section No. 103, Block 194, T. C. Ry. Co. original grantee, situated in Pecos County, Texas, described as follows:

"Beginning at a stake and mound at the N. E. Cor. of Survey No. 102, Block 194, T. C. R. R. Co., Cert. 2302, for the N. W. Cor. of this survey.

"Thence east 1900 vrs to a stake and mound for the N. E. Cor. of this survey.

"Thence South 1209 vrs to a stake and mound for the S. E. Cor. of this survey.

"Thence West 1900 vrs to a stake and mound for the S. W. Cor. of this survey.

"Thence North 1209 vrs to the place of beginning. And said Section No. 104, Block No. 194, T. C. Ry. Co., is described by metes and bounds as follows, to-wit:

"Beginning at a stake and mound at the N. E. Cor. of Survey No. 103, Block No. 194, for the N. W. Cor. of this survey.

"Thence East 1900 vrs to stake and mound for N. E. Cor. of this survey.

"Thence South 1209 vrs. to stake and mound for S. E. Cor. of this survey; thence West 1900 vrs. to stake and mound for S. W. Cor. of this survey. Thence North 1209 vrs to the place of beginning."

The answer of Hickox consisted of a general demurrer, general denial, and plea of not guilty.

The judgment rendered reads: "On the 28th day of Feb. A. D. 1911, came on to be heard the above numbered and entitled cause in its regular order on the docket, and thereupon came the plaintiff in person and by attorney, and also came the defendant in person and by attorney and all parties announced ready for trial, and no jury having been demanded and all issues of law and fact being submitted to the court, the pleadings were thereupon read, the evidence introduced and argument of counsel made, and the court after hearing same, thereafter on the 4th day of March A. D. 1911, in open court pronounced judgment in favor of the defendant. It is therefore ordered, adjudged and decreed by the court that the plaintiff John Monroe take nothing by his suit, against the defendant T. F. Hickox, and that the defendant T. F. Hickox go hence without day and recover against the plaintiff John Monroe all costs of suit, for which execution will issue. To which judgment of the court the plaintiff John Monroe in open court excepted and gave notice of appeal to the Court of Civil Appeals of the 4th Supreme Judicial District of Texas, sitting at San Antonio, Texas, and upon plaintiff's request and good cause being shown he is hereby given sixty days after the adjournment of this court within which to file his statement of facts herein."

Appeal bond was filed by Monroe, but it was shown the appeal was not further prosecuted and was abandoned.

Hickox later died. His surviving wife and children conveyed section 103 to the plaintiff, and assigned to it all claims and demands for damages arising out of the appropriation and conversion of oil taken from the land.

Evidence was also offered by plaintiff showing that there was no conflict between surveys 103 and 104, on the one hand, and surveys 34 and 35 in block 194, Gulf, Colorado & Santa Fé Railway Company. This evidence shows surveys 103 and 104 are north of surveys 34 and 35, and that in fact there was a vacant strip between them at the time the suit of Monroe v. Hickox was pending and subsequent to the judgment therein.

There was a mass of other oral and documentary evidence introduced by the plaintiff which it is deemed unnecessary to here state. The theory of the plaintiff is that, by the judgment rendered in Monroe v. Hickox, the defendant Hickox acquired the title of John Monroe to section 103. The statement made above sufficiently shows the chain of title relied upon by the plaintiff.

Hon. W. C. Douglas, before whom Monroe v. Hickox was tried, filed therein his findings of fact and conclusions of law. Some of the defendants here sought to have the court require the plaintiff to offer in evidence, in connection with the pleadings and judgment in Monroe v. Hickox, such findings and conclusions. This the court refused to do. Thereupon the defendants, in support of a motion to strike out the pleadings and judgment in Monroe v. Hickox, tendered the entire record in the case. This record so tendered, inter alia, consisted of the findings and conclusions of Judge Douglas and the notices by Monroe and Hickox, respectively, of the title papers filed by them.

The court, over plaintiff's objection, admitted the findings for all purposes and without limitation. Thereupon the defendants, except some not necessary to name, moved to strike out the pleadings and judgment in Monroe v. Hickox. The motion was sustained and the jury instructed to...