Sessums v. W. T. Carter & Bro.

Decision Date13 July 1938
Docket NumberNo. 3345.,3345.
Citation121 S.W.2d 486
PartiesSESSUMS et al. v. W. T. CARTER & BRO. et al.
CourtTexas Court of Appeals

Appeal from District Court, Polk County; E. T. Murphy, Judge.

Suit by W. T. Carter & Brother and others against Thomas M. Sessums and others to remove cloud from title of certain land and for injunctive relief. From an adverse judgment, defendants appeal.

Affirmed.

William McCraw, Atty. Gen., H. Grady Chandler, Asst. Atty. Gen., Henry H. Brooks, of Austin, Bryan, Suhr, Bering & Bell and Fouts, Amerman & Moore, all of Houston, and Russell Rentfro and Henry S. Moore, Asst. Attys. Gen., for appellants.

Baker, Botts, Andrews & Wharton, Dillon Anderson, Vinson Elkins, Weems & Francis, and John C. Townes, all of Houston, and V. A. Collins, of Livingston, for appellees.

O'QUINN, Justice.

We preface this opinion with the following quotation from the brief of appellants, Short, Gholson and Sullivan, hereinafter referred to as appellants: "The Attorney General has no money to prosecute a suit in Polk County to recover this land claimed by the State to belong to the Permanent School Fund of Texas. He does not have any surveyors at his disposal. His personnel is far too inadequate to send them over the State to try cases. The State is tied, hand and foot, unless the applicants supply the cash, the evidence and technical assistance." The other appellant—all defendants below—is the Hon. William H. McDonald, Commissioner of the General Land Office, in his official capacity.

This suit was filed in Polk County on the 9th day of June, 1937, by appellees, W. T. Carter & Brother, plaintiffs below, against appellants, the Commissioner of the General Land Office, and certain other parties not necessary to name, defendants below. We take the following statement of the nature of appellees' petition from appellants' brief: "Plaintiffs' petition discloses that they claim to be the owners of certain land which is alleged to constitute a part of the Andres Morales League in Polk County, Texas; that the defendant Land Commissioner is asserting that this land does not constitute a part of said league, but that, on the contrary, it is unsurveyed public school land; that the defendants, other than the Commissioner, have applied to the General Land Office for mineral leases thereon under the provisions of the second paragraph, Section 8, of Article 5421c, Vernon's Annotated [Civil] Statutes; that unless he is restrained, the Commissioner will issue such leases to some or all of the defendants; that even though the land in controversy is not a part of the Morales League, and in fact belongs to the State, that nevertheless, it is not subject to lease by the defendant applicants under a preference right, but must be sold to the highest bidder, and that the claims of the defendants constitute a cloud on plaintiffs' title. The prayer is that such cloud be removed, that the Commissioner be enjoined, both by interlocutory order and upon final hearing, from issuing any leases to the other defendants, and that similar injunctions issue against each of the other defendants restraining them from prosecuting or conveying their files or from accepting any mineral leases from the State of Texas, and that such files and all assignments thereof be canceled."

On the 17th day of June, 1937, the State of Texas filed suit in trespass to try title in the district court of Travis County against appellees and all parties named as defendants in the case at bar, except the Land Commissioner, and certain other parties not necessary to name, to recover the title and possession of the very land claimed by appellees in their petition filed in Polk County. Though appellants were named defendants by the State in its action as filed in Travis County, that suit was filed for their benefit, and, as disclosed by the quotation we have made from their brief, appellants are "financing" both suits, and furnishing "the evidence and technical assistance". In answer to the suit at bar, appellants and the Land Commissioner filed pleas in abatement, pleading the pendency of the Travis County suit, pleas to the jurisdiction of the Polk County district court, general and special denials, and certain other pleas not material to this appeal.

On a full hearing, both on the pleadings and on the evidence, on the 13th day of December, 1937, the district court of Polk County overruled the pleas in abatement and of jurisdiction, and granted appellees a temporary injunction to remain in force until this case is tried on its merits, restraining the Land Commissioner from issuing a mineral lease to appellants on the land described in appellees' petition, and restraining appellants from further prosecuting their claim of right to a lease on the land, from conveying their "files" as a claim of right to a lease, and from accepting any mineral lease from the State of Texas. The appeal was prosecuted from that order.

The basic facts of the appeal may be stated as follows: The Andres Morales league of land in Polk County was titled by the Mexican Government on the 30th day of August, 1835; the Mary Thomas league, adjoining the Morales on the N. B. line, was titled September 23, 1835. The location of these two leagues on the ground is recognized by the General Land Office, and this location marked on its official maps. Many junior surveys, adjoining these two leagues on all four sides, have been located on the ground and patented by the State of Texas with reference to these two leagues of land, and their location fixed upon the ground as adjoinders to these two leagues of land. As shown by the maps of the General Land Office, all land adjacent to these two leagues has been granted by the State of Texas, and patents duly issued to the claimants, with reference to the location of the two leagues on the ground. Appellees and their predecessors in title, claiming title to the Morales league, as its location is indicated and shown by the maps of the General Land Office, have been in undisputed possession of all the land as located on the ground by the official maps, and have claimed, used, and enjoyed the land, and have assumed all the burden of its ownership, from the 30th day of August, 1835, without the assertion of an adverse title, until appellants began asserting the claim put in issue by appellees' petition, shortly before the institution of this suit. Likewise, the owners of all the adjoining junior surveys have been in possession of their land, claiming and enjoying it, and assuming the burden of its ownership, from the date of the issuance of their respective titles. As shown by the official maps of the Land Office, and by the claims and possession of those asserting title to the land, there is no "vacant" land adjacent to the Morales and Thomas leagues, nor adjacent to any of the surveys that adjoin these two leagues—that is to say, the official maps of the Land Office indicate no vacancy. As shown by the official maps, the State has long since parted with all its right, title, claim, and interest in and to the Morales and Thomas leagues, and the adjacent junior surveys, as their location is affirmatively designated upon the ground by the official maps of the Land Office.

I. & G. N. Survey No. 15 was located and surveyed in 1876, as adjoining the Morales league on the south. In December, 1936, immediately after the discovery of oil on I. & G. N. Survey No. 15, appellants, and certain other parties purporting to act under the provisions of Article 5421c, Vernon's Ann.Civ.St., Acts 1931, c. 271, went upon the Morales league, as its location is shown upon the ground by the official maps, and, by a resurvey of this land, purported to find a vacancy of about 3000 acres. This showing was made by tearing the Morales and Thomas leagues loose from the surveys located on their south and west by calls for their S. B. and W. B. lines, and then by moving these two surveys east from their map location, and spreading them over and consuming many small surveys located on their north and east by calls for their E. B. and N. B. lines; appellees make the statement that the resurvey of the Morales and Thomas leagues, as made by appellants, would disturb "probably fifty" junior surveys. On the "files" made by appellants, based upon their resurvey of these two leagues of land, they made application to the Land Commissioner to lease from the State of Texas the land claimed by them to be vacant. The Land Commissioner was prepared to recognize their claim, and to issue to them the mineral lease applied for and, on his affirmative statement made in his brief, would have declared the 3000 acres of land vacant, and would have issued a mineral lease thereon to appellants, but for the temporary injunction issued against him and appellants by the district court of Polk County.

Only two issues are presented by this appeal: (1) Is the State a necessary party to appellees' cause of action in Polk County; (2) under Article 5421c, did the Land Commissioner have the power—was the discretion vested in him—to recognize the vacancy claimed by appellants, and to issue to them a mineral lease thereon? The first question is answered by the second. If the Land Commissioner was vested by law with a discretion to recognize and declare vacant the 3000 acres of land pointed out to him by appellants, the State was a necessary party to appellees' cause of action. While the State was not made a party defendant by name, yet the Land Commissioner was made a defendant in his official capacity. If he had the power to act in his official capacity in the matters put in issue by appellees' petition, a final judgment against him in his official capacity would in effect be a judgment against the State; a judgment against him in his official capacity, denying him title to the claimed vacant land, would be res judicata of the title against the State. McDonald v. Humble Oil &...

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3 cases
  • Harris v. O'Connor
    • United States
    • Texas Court of Appeals
    • 2 Noviembre 1944
    ...the case of Short et al. v. W. T. Carter & Bro. et al., 133 Tex. 202, 126 S.W.2d 953, in the Court of Civil Appeals, Sessums et al. v. W. T. Carter & Brother, 121 S.W.2d 486. This was the law until it was changed by the provision of H. B. No. 9, Chapter 3, p. 465, of the General Laws, 46th ......
  • Short v. W. T. Carter & Brother
    • United States
    • Texas Supreme Court
    • 30 Noviembre 1938
    ...two cases are not the same and a judgment in this case would not be res adjudicata of any issue presented in that suit. Sessums v. W. T. Carter & Bro., 121 S.W.2d 486. The decision of the Court of Civil Appeals, that the Commissioner of the General Land Office was wholly without power to ex......
  • W. T. Carter & Bro. v. State, 8959.
    • United States
    • Texas Court of Appeals
    • 3 Abril 1940
    ...the trial court before the Land Commissioner had acted on their applications; affirmed on appeal therefrom by the Court of Civil Appeals, 121 S.W.2d 486; writ granted by the Supreme Court and these judgments reversed and the injunction dissolved. See 126 S.W.2d 953. Meantime, on June 17, 19......

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