Powell v. Parks, 1900-6429.

• Citation: 86 S.W.2d 725
• Decision Date: 30 October 1935
• Docket Number: No. 1900-6429.,1900-6429.
• Parties: POWELL et al. v. PARKS.
• Court: Supreme Court of Texas

86 S.W.2d 725

POWELL et al. v. PARKS.

No. 1900-6429.

Commission of Appeals of Texas, Section A.

October 30, 1935.

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

Suit by J. C. Parks against N. P. Powell, wherein W. E. McKinney intervened. To review a judgment of the Court of Civil Appeals [56 S.W.(2d) 323], modifying a judgment for the intervener, the defendant brings error.

Reversed and remanded in part, and affirmed in part.

Wynne & Wynne, of Longview, and B. J. Wynne, of Wills Point, for plaintiff in error.

George Prendergast, of Marshall, and R. E. Allday, Boyles, Brown & Scott, and Russell Scott, all of Houston, for defendants in error.

HARVEY, Commissioner.

Ollie Wilhite and her husband, both now dead, owned a tract of 20 acres of land in Gregg county, Tex., in the vicinity of the oil field in that county. They had nine children. Four of these, including Job Wilhite and Sam Wilhite, are living. Each of the five that are dead left surviving children. The children of one of these five are Alberta Irwin and Hobart Christian. This appeal concerns the undivided interest inherited by Sam Wilhite and Alberta and Hobart; all other claims having been disposed of by the trial court's judgment, and no complaint of the judgment has been made in either of the courts below in respect to those claims.

The suit was brought by the defendant in error, J. C. Parks, against N. P. Powell, for the recovery of the oil and gas leasehold estate in the two-ninths undivided interest of Sam, Alberta, and Hobart in the tract of land. He bases his claim to the leasehold estate upon oil and gas leases alleged to have been executed by said parties to him and Job Wilhite; but the latter was alleged to be merely a nominal grantee in said instruments. W. E. McKinney intervened as a party defendant. On trial of the case before the court, without a jury, judgment was rendered to the effect that Parks take nothing by his suit. The Court of Civil Appeals reversed this judgment and rendered judgment for Parks. 56 S.W. (2d) 323.

The material facts established by the trial court's judgment, so far as they concern the claim asserted by Parks under Sam, Alberta, and Hobart, are substantially as follows:

In the spring of 1931, Parks, acting through his duly authorized agent, who is a lawyer, procured from Sam, Alberta, and Hobart the oil and gas leases under which Parks claims. The leases so procured are in the usual form of such leases, and purport to convey the leasehold estate in the undivided interest of the grantors in the tract of land. By the terms of each of the instruments, Parks and Job Wilhite are made grantees. Nothing was paid for the leases, but the instruments recite a nominal consideration. The instruments were duly signed and acknowledged by the respective grantors. Parks resided in Rusk county, Tex., at the time, and was a stranger to the grantors. Job resided in Gregg county. At the time the leases were procured by the agent of Parks, Alberta was in Kansas City, Mo., where she resided; Hobart was in Chicago, Ill., where he resided; and Sam was in Houston, Tex., where he resided. In procuring the instruments, the agent of Parks explained to the respective grantors that it would be to their advantage to execute the instruments; that Parks agreed to sell the property for a price not less than $60 per acre, and, to this extent, the purchase money would be turned over to the grantors, and all in excess of that amount would be divided equally between Parks on the one hand and the grantors on the other; that by making Job a...