Roeser v. Coffer

• Decision Date: 23 October 1936
• Docket Number: No. 13438.,13438.
• Parties: ROESER v. COFFER et al.
• Court: Texas Court of Appeals

98 S.W.2d 275

ROESER v. COFFER et al.

No. 13438.

Court of Civil Appeals of Texas. Fort Worth.

October 23, 1936.

Rehearing Denied November 20, 1936.

Appeal from District Court, Henderson County; Ben F. Dent, Judge.

Suit by Mrs. S. L. Coffer and husband against W. T. Roeser. Judgment for plaintiffs, and defendant appeals.

Affirmed.

R. H. Sigler, of Athens, for appellant.

Bishop & Holland, of Athens, for appellees.

SPEER, Justice.

On April 3, 1935, Mrs. S. L. Coffer and her husband, S. L. Coffer, instituted this suit in the district court of Henderson county against W. T. Roeser to cancel a mineral deed executed by the Coffers to Roeser on February 4, 1935, on lands described as being situated in Henderson county, Tex. There is no issue raised as to what lands are involved nor the interest conveyed, and for this reason we shall not go into these details.

For convenience we shall refer to the parties as plaintiffs and defendant as they stood in the trial court.

Plaintiffs alleged ownership of an undivided interest in the lands described, under an inheritance by Mrs. Coffer from her deceased parents; that she lived at Duncan, Okl., and that defendant came to her home and offered to buy a part of her royalty interest in the lands, and represented to her that a well had been drilled near the property; that it was a dry hole and showed no oil; that by the drilling of said well her lands had been condemned as oil-producing property and that it would not likely produce oil; that at the time said statements were made no such well had in fact been drilled near plaintiffs' property and said land had not been thus condemned as oil-producing property, and that defendant well knew his representations were false and that the statements made by defendant were for the purpose of deceiving the plaintiffs; that the plaintiffs did not know defendant's statements were false, but believed them true and relied upon such representations of defendant, and but for such false representations and plaintiffs' reliance therein they would not have conveyed said mineral rights.

Allegations were further made that the conveyance by plaintiffs was void because the acknowledgment of the plaintiff Mrs. S. L. Coffer was not taken according to law, and that each and all the recitations contained in the certificate of acknowledgment were false and untrue, and that she did not know its contents when she signed it.

Defendant answered with general demurrer, special exceptions, and specially denying that he made the false and fraudulent representations imputed to him by plaintiffs, nor did he conceal from plaintiffs facts which he was under legal obligations to reveal, and that the acknowledgment of Mrs. Coffer was properly taken as provided by law.

The case was tried to a jury and a verdict returned in answers to special issues.

Judgment was rendered for plaintiffs against defendant, rescinding the contract of sale and canceling the deed of conveyance of the mineral rights therein purported to be conveyed; from which judgment the defendant has perfected his appeal, under six assignments of error.

The first assignment complains of the action of the court in failing to sustain certain special exceptions to parts of plaintiffs' petition. The transcript before us shows the exceptions were filed in due order, but it does not appear that they were called to the court's attention or that any judgment or decree of the court was entered thereon, but the matter is attempted to be brought here on written bills of exception to the court's refusal to sustain them. We are not authorized to consider or review the action of the trial court in such matters when thus presented. Rules for practice in the district courts provide at sections 53 and 65 that no bills of exception shall be taken to the judgment of the court on matters of pleading where such judgments constitute a part of the record. The remedy for one aggrieved by such judgments and decrees is to have prepared and presented a full and complete record of the proceedings had, with proper assignments of error to the action of the court as disclosed by that record. It is said in Tex.Jur. vol. 3, p. 575, § 404: "The action of the trial court on demurrers or special exceptions to pleadings need not and cannot be preserved by a bill of exceptions, but must be affirmatively shown by a judgment or order entered of record and included in the transcript." To the same effect are the following cases: Williams v. Trinity Gravel Co. (Tex.Civ.App.) 297 S.W. 878; Epting v. Nees (Tex.Civ.App.) 25 S.W.(2d) 717; Hall v. Williams & Ellis (Tex.Civ.App.) 267 S.W. 520; Miller v. Shelby County Inv. Co. (Tex.Civ.App.) 30 S.W.(2d) 668.

Defendant's second assignment of error is based upon the refusal of the trial court to instruct a verdict in his favor at the conclusion of the testimony. The evidence offered by the respective parties was conflicting as to the representations made by defendant at the time he procured the mineral deed.

The facts shown about which there is no dispute are substantially that Mrs. Coffer was one of four heirs who had inherited the lands in controversy; that, when Mrs. Coffer's mother married a second time, approximately 30 years before the date of the transaction in controversy, she was taken by an uncle to another part of the state and reared, and had known nothing of oil developments in the vicinity of her lands during that time; that she lived in Oklahoma about 200 miles from the land and had not seen it in nearly 17 years and knew nothing about oil developments there; that defendant was a buyer, seller and developer of oil properties and had previously procured a lease from plaintiffs on this property for its proposed development for oil; and that, with a view to purchasing a part of the royalty of Mrs. Coffer, the defendant went to her home at Duncan, Okl., and conferred with her about its purchase.

There is a very marked conflict in the evidence as to what took place during the negotiations. The plaintiffs and a disinterested witness named Brazil testified in substance that defendant told plaintiffs that their land had been condemned as oil-producing property by the drilling of a dry hole near it; in some instances the witnesses expressed it as being in that locality or vicinity, but more frequently saying it was near their land; that it had no value as oil land; that it was proven to be dead; that there was no prospecting for oil going on in that locality it had been proven their land would not produce oil; that royalty on the land had no market value; that it just was not selling; and that no trading was going on there. The plaintiffs testified they knew defendant was acquainted with the situation and believed he was telling them the truth; that they did not believe he was trying to cheat them out of their property and relied upon his statements; that they were very poor financially, had had a son badly burned and had incurred expenses in his treatment which they could not pay, and that the defendant said that on this account he wanted to help them and would just give them $50 for the mineral deed; that they needed the money so badly they accepted it and executed the deed.

The defendant denied making the statements testified to by plaintiffs and the other witness, but said he told them there had been an outpost well drilled near Cross Roads which was dry or produced salt water, and leases north of plaintiffs' property were not very valuable; that he did not tell them a well had been drilled near their property nor that their land would not produce oil, in fact denied all the material matters testified to by plaintiffs and Brazil. He testified he actually paid $200 for the mineral deed instead of the $50 testified to by plaintiffs. He admitted he knew, however, that negotiations were then under way by which what was known as the Worsham well No. 1 was to be drilled soon on property adjoining that of the plaintiffs and that he told plaintiffs of this. He said the reason he went to Oklahoma to purchase royalty from plaintiffs instead of trying to purchase from persons residing in the vicinity of the property was because he knew many of those near there had sold royalty and perhaps would not sell any more.

As before stated, the case was submitted to the jury on special issues, the purport of which and their answers pertaining to the disputed parts of the evidence mentioned were: (a) That the defendant...