Smith v. Sorelle

• Decision Date: 13 November 1935
• Docket Number: No. 6389.,6389.
• Citation: 87 S.W.2d 703
• Parties: SMITH et ux. v. SORELLE et al.
• Court: Texas Supreme Court

Page 703

87 S.W.2d 703

SMITH et ux. v. SORELLE et al.

No. 6389.

Supreme Court of Texas.

November 13, 1935.

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

Suit by W. F. Smith and wife against R. H. Busby and others. Decree for plaintiffs was affirmed as respects defendant R. H. Busby and reversed and remanded as respects other defendants by the Court of Civil Appeals [53 S.W.(2d) 138], and plaintiffs bring error.

Judgment of the Court of Civil Appeals reversed and judgment of the trial court affirmed.

R. E. Allday, of Houston, and Goens & Hutchins, of Tyler, for plaintiffs in error.

Carrigan, King & Surles, of Wichita Falls, for defendants in error.

SHARP, Justice.

W. F. Smith and wife instituted this suit in the district court of Upshur county against R. H. Busby, R. W. Fails, and F. L. Sorelle, for the purpose of canceling certain mineral deeds, one executed by Smith and wife to R. H. Busby, and two executed by R. H. Busby, one to R. F. Fails and one to F. L. Sorelle. The cause was tried before the court without a jury, and judgment was entered canceling the three deeds involved. Busby, Fails, and Sorelle appealed the case to the Court of Civil Appeals at Texarkana, and the judgment as to Busby was affirmed; but the judgment of the trial court was reversed and judgment rendered in favor of Fails and Sorelle. Busby v. Smith, 53 S.W. (2d) 138. We refer to the opinion of the Court of Civil Appeals for a more detailed statement of the facts and issues involved. From the judgment of the Court of Civil Appeals, Smith and wife bring this cause here. Busby does not appeal.

The decisive question here involves the sufficiency of the description of the property contained in the deed from Smith and wife to Busby. Fails and Sorelle claim their interests as grantees of Busby. Busby having failed to appeal from the judgment of the Court of Civil Appeals, we are not concerned with the judgment rendered against him. If the description of the property contained in the deed from Smith and wife to Busby is insufficient, the other questions become immaterial.

On February 5, 1931, Smith and wife executed a contract with Busby to sell him one-fourth of the royalty on 100 acres, described as follows: "Being an undivided one-fourth interest out of a certain tract of land situated, lying, and being in the County of Upshur, State of Texas, described as follows: 100 acres out of Blocks 8 and 9 of the subdivision of Jose Maria Pineda Survey, which was patented to Adolphus Stern, Pat. 608, Vol 2, three miles North of Gladewater, Texas."

By royalty deed, dated February 11, 1931, Smith and wife, in pursuance of the foregoing contract, executed to Busby an undivided one-fourth interest in the oil and gas, and other minerals, in the following described land:

"A certain tract of land situated lying and being in the county of Upshur, State of Texas, described as follows: 100 acres out of blocks eight and nine of the subdivision of Jose Maria Pineda survey which was patented to Adolphus Stern, Pat. 608, Vol. 2, three miles north of Gladewater, Texas. * * *

"And said above described lands being now under an oil and gas lease originally executed in favor of W. M. Worley and now being held by W. M. Worley. * * *"

Busby, by royalty deed dated February 24, 1931, conveyed to R. W. Fails an undivided one-sixteenth interest in the oil and gas, and other minerals, in the 100 acres of land, and described same as it was described in the deed received by Busby from Smith and wife. Also, Busby, by royalty deed dated March 18, 1931, conveyed to Sorelle an undivided one-eighth interest in the oil and gas, and other minerals, giving the same description of the land as was in the deeds above mentioned.

It will be noted that the mineral lease referred to in the royalty deed above described was to W. M. Worley. It is unquestioned that the lease offered in evidence was in the name of H. F. Worley. The record shows that the deed from Smith and wife to Busby was delivered to Moore, to place his seal and certificate thereon, and then to be delivered by him in escrow to a bank in Gladewater; but that Moore, in violation of their instructions, delivered the deed to Busby, who had it recorded. Smith having discovered that the deed had been improperly delivered to Busby, prepared his affidavit setting out these facts, and filed same March 7, 1931: In the affidavit made by Smith the 100 acres of land was correctly described. This affidavit was filed as notice to the public of the improper acts of Busby in obtaining possession of the deed, and that Smith, and not Busby, owned the mineral rights in the land.

The lease to H. F. Worley executed by Smith and wife referred to the deed from Republic Insurance Company to W. F. Smith, which was recorded in the deed records of Gregg county. No such document as a lease to W. M. Worley existed. No reference was made in the mineral deed from Smith and wife to Busby to the H. F. Worley lease, or to the deed from the Republic Insurance Company to Smith. The trial court refused to admit in evidence the lease to H. F. Worley and the deed from the Republic Insurance Company to W. F. Smith, tendered in evidence in aid of the description of the 100 acres of land involved.

The trial court, among other things, found: (1) That Busby improperly obtained possession of the mineral deed executed by Smith and wife to him; (2) that the mineral deed from Smith and wife to Busby was void for lack of sufficient description; and (3) that Fails and Sorelle are not innocent purchasers of their mineral deeds.

The Court of Civil Appeals held that the mineral deed from Smith and wife to Busby "was not inherently uncertain." It was also held that the trial court erred in refusing to admit in evidence the deed from the Republic Insurance Company to Smith. Furthermore, it was held that the affidavit of Smith, with respect to the improper conduct of Busby in obtaining his mineral deed, and giving the public notice of such fact, and that he still claimed the minerals in said land, was an admission of the correct description of the land intended to be conveyed to Busby. Based upon these conclusions, the Court of Civil Appeals...