Simpson-Fell Oil Co. v. Stanolind Oil & Gas Co.

• Decision Date: 01 March 1939
• Docket Number: No. 6995.,6995.
• Citation: 125 S.W.2d 263
• Parties: SIMPSON-FELL OIL CO. et al. v. STANOLIND OIL & GAS CO. et al.
• Court: Texas Supreme Court

Page 263

125 S.W.2d 263

SIMPSON-FELL OIL CO. et al. v. STANOLIND OIL & GAS CO. et al.

No. 6995.

Supreme Court of Texas.

March 1, 1939.

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

Suit by the Simpson-Fell Oil Company and another against the Stanolind Oil & Gas Company and others for partition of oil, gas, and minerals in and under certain land. The Court of Civil Appeals reversed a judgment for plaintiffs and rendered judgment for defendants, 85 S.W.2d 325, and plaintiffs bring error.

Judgment of Court of Civil Appeals affirmed.

Edwin Lacy, Angus G. Wynne, and Jack E. Price, all of Longview, Harris & Harris, of Austin, Fred V. Hughes, of Tyler, and

George Otey, of Ardmore, Okl., for plaintiffs in error.

Turner, Rodgers, Winn & Sellers, C. R. Winn, Thompson, Knight, Baker & Harris, and Lewis Dabney, all of Dallas, Brachfield & Wolfe, of Henderson, and John E. Green, Jr., John Broughton, and Walter C. Clemons, all of Houston, for defendants in error.

GERMAN, Commissioner.

On the 26th day of August, 1908, R. H. Rowland and wife conveyed to William E. Howell of Clark County, Illinois, a tract of 258 acres of land, a part of the William Tyndale Survey in Gregg County, Texas. The recited consideration was $1,500 in cash paid by William E. Howell. At that time William E. Howell and Mary E. Howell were living together as husband and wife. In August, 1911, Howell and wife conveyed to L. A. Jeter 13¼ acres of the tract, leaving 244¾ acres, but in exchange therefor Jeter conveyed to William E. Howell 5½ acres of the Crosby Survey adjoining the Tyndale Survey. This made a total 250¼ acres standing in the name of William E. Howell, and for convenience it will be referred to as the Howell 250 acres.

Mary E. Howell died in Illinois in 1927, leaving three adult children and a grandson Jack Howell, son of Carrol B. Howell, deceased, as her heirs.

On November 1, 1929, William E. Howell and F. M. Fonville executed a contract of purchase and sale of the 250 acres of land, which is referred to as 258 acres, for a recited consideration of $2,500 to be paid in cash. In consummation of the purchase and sale of this land under the provisions of the contract of November 1, 1929, the attorney for Fonville called for the execution of deed by William E. Howell and wife to Fonville. Upon being informed that the wife of William E. Howell was then dead, and being further informed that Jack Howell, a minor, was one of the surviving heirs of Mary E. Howell, the attorney then caused to be executed on November 27, 1929, and delivered to F. M. Fonville, a general warranty deed by William E. Howell and his three adult children conveying an undivided 7/8 th interest in the fee title to the 250 acres of land. On the same date he caused to be procured a guardian's deed executed by William E. Howell as guardian of Jack Howell, the minor, conveying to Fonville an undivided 1/8 th interest in the 250 acres. In the execution of this latter deed, William E. Howell acted as guardian appointed under the laws of the State of Illinois and in pursuance of orders made by the probate court of Clark County in that State.

Under the two foregoing mentioned conveyances Fonville set up claim to the entire 250 acres.

On December 29, 1930, Fonville and wife executed and delivered to D. A. Burris an oil, gas and mineral lease upon the entire 250 acres, which instrument purported to cover the entire mineral estate.

On January 2, 1931, Burris assigned this lease to Simms Oil Company in so far as it affected the south 100 acres of the 250-acre tract, and on February 18, 1931, Simms Oil Company assigned to Stanolind Oil & Gas Company a 1/2 interest in said lease as to said 100 acres.

On January 2, 1931, Burris assigned to the Gulf Production Company the above mentioned lease in so far as it affected the 100 acres immediately north of and adjoining the 100 acres assigned to Simms Oil Company.

On February 4, 1931, Burris assigned to the Magnolia Petroleum Company said lease in so far as it affected the remaining portion of the said 250 acres, it being referred to as 58 acres, but in fact containing only about 50 acres.

All of the above mentioned assignees went into possession of the respective tracts assigned to them and began the production of oil from the land.

Under guardianship proceedings instituted in the probate court of Smith County, Texas, in the year 1931, C. E. Florence was appointed guardian of the estate of the minor, Jack Howell, who resided in Clark County, Illinois, and under proper orders regularly entered said Florence as guardian on July 28, 1931, executed to Leland Fikes a deed to an undivided 1/8 th interest in and to the said 250 acres of land, the consideration being $30,000 in cash.

On July 31, 1931, Leland Fikes executed to Magnolia Petroleum Company an oil, gas and mineral lease on the North 50 acres, the description in the lease being hereinafter fully set out.

Thereafter, on October 6, 1931, Leland Fikes executed an oil, gas and mineral lease to Will H. Smith, Simpson-Fell Oil Company and Simon Westheimer upon all his "right, title and interest, same being one-eighth," in and to all of said 250 acres, less the tract theretofore leased to Magnolia Petroleum Company on July 31, 1931. The parties agreed to consider the land leased as containing 200 acres. Westheimer assigned his interest in this lease to Simpson-Fell Oil Company and Will H. Smith.

Simpson-Fell Oil Company and Will H. Smith filed this suit in the District Court of Gregg County December 14, 1931, against Gulf Production Company, Simms Oil Company, Stanolind Oil & Gas Company and F. M. Fonville and wife. The suit was for partition of the oil, gas and minerals in and under the 250 acres of land, save and except that part leased by Leland Fikes to Magnolia Petroleum Company on July 31, 1931. It is alleged that plaintiffs owned an undivided 1/8 th part of said oil, gas and minerals and defendants owned the remaining 7/8 th part. The petition was amended on February 27, 1933, and Leland Fikes was made an additional party defendant. The suit remained one for partition of the oil, gas and minerals in the south 200 acres out of the 250-acre tract, but there was an alternative plea that if defendants denied the title of plaintiffs, then in such event plaintiffs sued in trespass to try title to recover a 1/8 th undivided interest in the oil, gas and minerals in said 200 acres.

Mrs. Fonville died after the filing of the original petition and her heirs were substituted as defendants. Leland Fikes filed a cross action impleading W. E. Howell, C. E. Florence and the First National Bank of Gilmer, the purpose being to protect himself to the extent of the $30,000 paid by him for the interest of the minor under the guardianship proceeding in Smith County. Fikes also impleaded the Magnolia Petroleum Company, seeking to reform the oil, gas and mineral lease executed by him to that company on July 31, 1931. He also sued F. M. Fonville and the heirs of Mrs. Fonville in trespass to try title to an undivided 1/8 th interest in the land.

The trespass to try title action between Fikes and Fonville and his children was severed from the original cause, and in February, 1934, judgment was entered in that cause in which it was decreed that Fikes take nothing as against the defendants, so far as the fee simple title to the 250 acres was concerned. The defendants took title to same subject to outstanding oil and gas leases. The defendants, Simms Oil Company, Stanolind Oil & Gas Company, and Gulf Production Company were not parties to that judgment, nor were the plaintiffs Simpson-Fell Oil Company and Will H. Smith.

The controversy between Fikes and the Magnolia Petroleum Company was severed, and in February, 1933, judgment was entered in that cause to the following effect: "It is therefore ordered, adjudged and decreed that the oil, gas and mineral lease made and executed by the plaintiff Leland Fikes to Magnolia Petroleum Company, July 31, 1931, recorded in Volume 96, page 450, Deed Records of Gregg County, Texas, be and the same is hereby reformed as that thereby it conveys unto Magnolia Petroleum Company the oil, gas, mineral and leasehold estate in the terms and by the covenants of said lease provided in and to the one-eighth fractional undivided interest claimed by the plaintiff Leland Fikes lying within the north 58 acres of land described in the said deed from C. E. Florence, guardian of Jack Howell, to Leland Fikes, dated July 28, 1931, recorded in the Deed Records of Gregg County, Texas."

Neither defendants Gulf Production Company, Simms Oil Company and Stanolind Oil & Gas Company, nor plaintiffs Simpson-Fell Oil Company and Will H. Smith were parties to that judgment.

The result of these proceedings left the suit with Simpson-Fell Oil Company and Will H. Smith as plaintiffs and Simms Oil Company, Stanolind Oil & Gas Company, Gulf Production Company, F. M. Fonville and children, C. E. Florence, William E. Howell, and the First National Bank of Gilmer as defendants. The three companies first named are the principal defendants and will hereafter be referred to as such. The nature of the suit was to partition the oil, gas and minerals in and under the south 200 acres only of the 250-acre tract, plaintiffs claiming an undivided 1/8 th interest in same, with allegation that defendants were the owners of the remaining undivided 7/8 th interest. There was a plea in the alternative of trespass to try title, but as we construe the pleading the case was primarily one for partition. The alternative plea was merely to settle, preliminary to partition, the question of title, in the event it was contested by defendants, and there is nothing to indicate an intention of abandoning the partition merely because defendants might contest the title of plaintiffs to the 1/8 th undivided interest.

Judgment in the trial court was in favor of plaintiffs for an undivided 1/8...