Powell v. Johnson

• Decision Date: 16 February 1943
• Docket Number: No. 5989.,5989.
• Citation: 170 S.W.2d 273
• Parties: POWELL v. JOHNSON et al.
• Court: Texas Court of Appeals

170 S.W.2d 273

POWELL v. JOHNSON et al.

No. 5989.

Court of Civil Appeals of Texas. Texarkana.

February 16, 1943.

Rehearing Denied March 11, 1943.

Appeal from District Court, Gregg County; Earl Roberts, Judge.

Suit by Allen Powell against Ida Johnson and others to recover an undivided one-half interest in land and for an accounting for the oil and gas produced therefrom. From a judgment for defendants, plaintiff appeals.

Affirmed in part, reversed in part and judgment rendered for plaintiff as to part of defendants.

W. J. Holt, of Dallas, and J. A. Stanford, C. M. Kennedy, and Black, Graves & Stayton, all of Austin, for appellant.

Walker, Smith & Shannon, of Ft. Worth, Park & Park, J. F. Park, and Auba Park, all of Corpus Christi, Bramlette, Levy & Bolton, of Longview, Weeks, Hankerson & Surles, of Tyler, and H. P. Smead, Jack Price, and Clyde H. Hall, all of Longview, for appellees.

JOHNSON, Chief Justice.

This suit was filed September 10, 1940, by appellant, Allen Powell, to recover an undivided 1/2 interest in two contiguous tracts of land containing 9.25 and 1.28 acres in the city of Gladewater, Gregg County, Texas, and for an accounting for the oil and gas produced therefrom. Ida Johnson and her husband, Alex Johnson, their oil and gas lessees, and their grantees of mineral interests subject to the lease, and claimants of surface rights under grants from Ida were named defendants. The defendants specially pleaded the 5-and 10-year statutes of limitation, R.C.S. 1925, Articles 5509, 5510, and 5513.

The land was formerly community property of Doc Powell and his wife, Ida Powell (now Ida Johnson). They acquired it from J. B. Wells in 1917 by deed, which was duly recorded, naming Doc Powell only as grantee. It was their homestead at the time Doc Powell died in 1918, intestate. He was survived by his wife, Ida, and appellant, who is a son of Doc Powell by a former marriage. Appellant inherited from his father an undivided 1/2 interest in the land, burdened only with the homestead rights of his stepmother, Ida Powell. After Doc Powell died, appellant left Texas and lived in other states of the Union until shortly before filing of this suit, during which time he received no information concerning Ida or the land. Ida continued to occupy the land until 1920, when she married Alex Johnson and moved to his home, located on a farm owned by him in Upshur County, Texas, where they lived together as husband and wife until 1931; except that Alex and Ida were separated for probably a month in 1927, during which time Ida returned to and lived on the land in question. In July, 1931, Alex and Ida moved from their home in Upshur County to the land in question, since which time they have continuously occupied it as their homestead.

On January 2, 1931, Ida, joined by Alex, executed in usual terms an oil and gas lease to G. C. Dunaway, purporting to cover the entire mineral interest in the land, conveying to the lessee an undivided 7/8 mineral interest and reserving to the lessor 1/8. The south 4¼ of the 9¼ acres of the lease was assigned to appellees Rancho Oil Company and R. A. Josey, Inc. The remainder of the lease was assigned to appellee T. W. Lee. Said assignees of the lease will be referred to as the lessees. After execution of the lease, Ida, joined by Alex, executed deeds to a number of persons separately conveying undivided mineral interests subject to the lease, which will be termed royalty interest. The total of such undivided mineral interests conveyed by Ida amounted to more than 1/2 but not all the 1/8 royalty.

In answer to special issues the jury found that Ida and the defendants claiming under her held peaceable and adverse possession of the land for a period of 10 years prior to the filing of this suit, but that their adverse possession was not of such unequivocal notoriety as that appellant would be presumed to have notice of same. The jury further found that the lessees T. W. Lee, Rancho Oil Company and R. A. Josey, Inc., have held peaceable and adverse possession of the 7/8 leasehold interest in the land, claiming under the oil and gas lease and assignments thereof duly registered, and paying taxes thereon, for a period of 5 consecutive years before filing of this suit; and that J. C. and J. P. Jackson and J. F. Park have held peaceable and adverse possession of the undivided royalty interests claimed by them, paying taxes thereon, under deeds from Ida, duly registered, for a period of 5 consecutive years prior to the filing of the suit against them.

Before rendition of the judgment, appellant and defendants Ida and Alex Johnson and all the defendants that claim only surface rights under Ida, and three of the defendants who claimed certain undivided interests in the 1/8 royalty under deeds from Ida, executed and filed an agreement settling the matters as between them. The agreement was approved by the court and incorporated in the judgment. After overruling appellant's motion for judgment notwithstanding the findings of the jury, the court rendered judgment based upon the verdict of the jury sustaining the pleas of limitation under the 5-year statute in favor of the lessees, T. W. Lee, Rancho Oil Company and R. A. Josey, Inc., as to the 7/8 leasehold interest, and in favor of J. C. and J. P. Jackson and J. F. Park as to the respective undivided interests claimed by them in what for convenience may be here termed the "second" 1/2 of the 1/8 royalty sold by Ida. Upon the facts the court entered judgment in favor of all the defendants claiming undivided interests in the "first" 1/2 of the 1/8 royalty sold by Ida.

Appellant's propositions 1 to 9 complain of the action of the trial court in entering judgment in favor of the lessees, T. W. Lee, Rancho Oil Company, and R. A. Josey, Inc., and in favor of J. C. and J. P. Jackson and J. F. Park, rendered upon the theory that appellant's right of recovery against said appellees was barred by the 5-year statute of limitation.

It is contended in substance that after the death of Doc Powell the homestead rights of Ida as his widow, under the Constitution, Art. 16, §§ 51 and 52, Vernon's Ann.St. and R.C.S.1925, Art. 3496, being in the nature of a life estate, Sargeant v. Sargeant, 118 Tex. 343, 15 S.W. 2d 589; Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35; Clift v. Clift, 72 Tex. 144, 10 S.W. 338; Coffman v. Gulf, C. & S. F. Ry., Tex.Com.App., 23 S.W.2d 304, therefore Ida holds the position with reference to the land similar to that of life tenant, and that appellant holds the position of remainderman against whom limitation will not run in favor of such life tenant, or those claiming under her, during her lifetime. Citing Olsen v. Greele, Tex.Com. App., 228 S.W. 927; Perkins v. Perkins, Tex.Civ.App., 166 S.W. 915, writ refused; Starr v. Dunbar, Tex.Civ.App., 69 S.W. 2d 816, writ refused, and a number of other decisions. We agree that such were the rights of Ida and appellant until 1920, when Ida married Alex Johnson and moved off the land in question and lived with him as his wife on his farm in Upshur County. She thereby abandoned her homestead rights "as the widow of Doc Powell" in the land in controversy. R.C.S.1925, Art. 3497; Wallingford v. Bowen, Tex.Civ. App., 104 S.W.2d 188; Chalk v. Daggett, Tex.Com.App., 257 S.W. 228. Thereafterwards, appellant and Ida were tenants in common, each having the joint right of possession or to partition. Ida's return to and subsequent occupancy of the land as her homestead did not renew or reinvest her with homestead rights "as the widow of Doc Powell" so as to preclude the rights of appellant to joint possession or partition. Moss v. Smith, 29 Tex.Civ.App. 458, 68 S.W. 533, writ refused. After abandonment of her homestead rights as the widow of Doc Powell, limitation would have run in favor of Ida and those claiming under her if there had been present such facts as would authorize operation of the statute against a cotenant out of possession in favor of cotenants occupying the land. But the record here fails to show the essential facts of disseizin and notice of adverse claim.

We will first discuss the facts applicable to the appellees' holding under the oil and gas lease executed by Ida. "The law of limitation of actions for land is founded upon notice." Rosborough v. Cook, 108 Tex. 364, 194 S.W. 131, 132; Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226. The only notice claimed by appellees in support of their plea of 5-year limitation is constructive notice. They contend, in substance, that since it is held by our courts that an oil lease in the ordinary form as here involved operates to convey to the lessees a determinable fee in an undivided 7/8 interest in the minerals, Stephens County v. MidKansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566; Hager v. Stakes, 116 Tex. 453, 294 S.W. 835, therefore the recording of the lease from Ida and appellees' entry and possession under the lease, as a matter of law, constituted a disseizin of and constructive notice to appellant of their adverse claim, which possession and payment of taxes for the required length of time ripened title in them under the 5-year statute of limitation. In support of their contention appellees rely upon Jones v. Siler, 129 Tex. 18, 100 S.W. 2d 352; McBurney v. Knox, Tex.Com. App., 273 S.W. 819, 821, and other decisions, declaring the well-established rule which in McBurney v. Knox, supra, is expressed in the following language: "It is a familiar rule in this state that where one tenant in common executes a deed purporting to convey the entire premises to a third person, who enters into possession thereof, claiming title to the whole, this will constitute a disseizin of the cotenants and after the expiration of the statutory period will bar the right of the cotenants to recover." In Jones v. Siler, supra, the same rule is expressed as follows: "A conveyance by one cotenant to a stranger to the...