Socony Mobil Oil Corp. v. Belveal

• Decision Date: 12 June 1968
• Docket Number: No. 5926,5926
• Parties: SOCONY MOBIL OIL CORPORATION and Charles B. Athey and Jack D. Hodgden, Appellants, v. Marion J. BELVEAL et al., Appellees. . El Paso
• Court: Texas Court of Appeals

Page 529

430 S.W.2d 529

SOCONY MOBIL OIL CORPORATION and Charles B. Athey and Jack D. Hodgden, Appellants, v. Marion J. BELVEAL et al., Appellees.

No. 5926.

Court of Civil Appeals of Texas.

El Paso.

June 12, 1968.

Rehearing Denied July 24, 1968.

William L. Kerr, Kerr, Fitz-Gerald & Kerr, Jack Akin, Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., Tom Sealy, Rush Moody, James Fitz-Gerald, Midland, James Kerr, Ft. Stockton, J. K. Brim, Jr., Sulphur Springs, and E. B. Mitchell, Jr., Enid, for appellants.

Verne F. Knickerbocker, Midland, John J. Watts, Odessa, for appellees.

OPINION

PRESLAR, Justice.

This is an appeal from an order granting the motions for summary judgment of the plaintiffs, Marion J. Belveal, Golda Belveal Branom, joined by her husband, Dudley Branom, Price M. Belveal, Martin E. Belveal, Will Wyler, Ernest Wyler, and Eldabell McKenzie joined by her husband, R. I. McKenzie, individually and as heirs of Myrtle Belveal, deceased, Ida Oberg, deceased, and Milda Wyler, deceased, against defendants Mobil Oil Corporation, Charles B. Athey and Jack D. Hodgden. All defendants appeal from such judgment, and additionally Mobil Oil Corporation assigns error in the failure of the court to grant its motion for summary judgment.

The order granting the plaintiffs' motions for summary judgment is reversed and remanded for trial, and the order is reversed and rendered as to that portion of Mobil Oil Corporation's motion for summary judgment which pertained to the cancellation of its oil and gas lease.

The plaintiff-appellees in their petition alleged:

'Plaintiffs bring this suit to set aside certain deeds and to recover possession and title to certain property which was taken from them by the fraud of defendants and which property defendants still fraudulently retain.

'Plaintiffs claim that they are entitled to ownership, title and possession of the following interest in lands and are entitled to have certain deeds set aside and to have adjudication of or reconveyance to them of ownership, title and possession of the following interest in lands: * * *'

They then pleaded their title from the sovereignty of the soil, maintained that the court had jurisdiction of the out-of-state defendants under Article 1975 (because the suit was one for an interest in land), and they prayed for an award of title and possession. Their motions for summary judgment recite that they are based on their pleadings. Plaintiff-appellees, by their motions for summary judgment action, did not offer proof of their chain of title, superior title from a common source, nor did they offer proof negating the 'not guilty' and specially pleaded defenses. Defendants urge that this is fatal to the judgment entered, and they urge that they were entitled to all defenses allowed by their 'not guilty' pleas and their specially pleaded defenses of laches, limitations and prior uncanceled deeds between the parties. Plaintiffs now disavow the trespass to try title action and maintain that the judgment can stand solely on their action for cancellation of the deeds under the claim of fraud and breach of fiduciary relationship. The judgment ordered cancellation of the deeds, ordered the defendants to execute various deeds to plaintiffs and their attorneys, and ordered the defendants to account for rents and revenues accrued during their possession. Thus the plaintiffs obtained all which they could have obtained under the trespass to try title count, and much argument is presented as to whether this was or was not such an action. Since plaintiff-appellees now urge that theirs is not a trespass to try title action, in the face of such abandonment it is probably unnecessary to consider such form of action as supporting the summary judgment rendered. But they also seek to rely on legal reasons to support the judgment--deeds improperly notarized and acknowledgments of some deeds by a party in interest--and they seek to show their establishment of a chain of title by reference to their pleadings. As to that, suffice it to say that pleadings are not the character of proof required for summary judgment. Rule 166--A, Texas Rules of Civil Procedure. In Land v. Turner, 377 S.W.2d 181 (Tex.1964), the Supreme Court summarized the burden of plaintiffs-appellees under this count:

'To recover in trespass to try title, the plaintiff must recover upon the strength of his own title. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961). He may recover by (1) providing a regular chain of conveyances from the sovereign, (2) by proving a superior title out of a common source, (3) by proving title by limitations, or (4) by proving prior possession, and that the possession had not been abandoned.'

Each of these is an independent ground of recovery, but none of them were proved in the summary judgment action before us, so that the judgment cannot stand on such grounds in any event, whether abandoned or not.

Plaintiffs pleaded and admitted the execution and delivery of the deeds, their acceptance and retention of the consideration, and the present possession of the lands by the defendants. They contend that they should not be bound by them because of a form of fraud arising out of the deeds having been delivered in blank as to the grantee, the insertion of the name of defendant Athey as such grantee, and the existence of a fiduciary relationship between them and Athey. Stripped of the trespass to try title count, the plaintiffs' cause of action is one for cancellation of deeds by the grantors for fraud. Yet the judgment goes farther. It first cancels the seven deeds in which the plaintiffs are grantors and Athey is the sole grantee. It then orders Athey and the other defendants to execute deeds of special warranty to the plaintiffs and their attorneys, and to execute certain deeds between the various defendants, some conditioned on the delivery to the clerk of the court of other deeds, apparently to make up deficiencies and correct inequities among those defendants who were strangers to the canceled instruments, but deraigned their title thereunder. The various defendants were ordered to account for rents and revenues accrued during their possession, and in turn were to receive back out of such funds the consideration paid for their deeds. This being a summary judgment case, when we speak of the evidence or proof throughout this opinion, it will mean that we have viewed same in the manner required under Rule 166--A, T.R.C.P., as to which see Great American Reserve Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W .2d 41 (Tex.1965). If we assume that the proof was sufficient to warrant cancellation (but we expressly find that it was not), the judgment rendered cannot stand, for it goes beyond cancellation and, in effect, grants recovery as though in trespass to try title. Cancellation was a necessary preliminary step to recovery of the land. Chicago T. & M. Ry. Co. v. Titterington, 84 Tex. 218, 19 S.W. 472; Deaton v. Rush (1923), 113 Tex. 176, 252 S.W. 1025. But the establishing of an equitable right--that they were entitled to cancellation--and the simple act of cancellation, could not operate to take the land away from all who were in possession under claims of title and restore it to plaintiffs. As a very practical matter, the solemn act of canceling the deeds--that they 'be set aside, voided and held for naught'--left nothing to be conveyed, as thereafter ordered by the judgment, and certainly nothing to warrant as title.

Very simply stated, the suit was for cancellation, but the judgment was for complete recovery of the land, and it was against all parties claiming an interest therein. Athey was the only defendant who was a party to the canceled instruments. The other defendants were in possession under duly recorded deeds. Not being a party to the instruments sought to be canceled, they could have been made parties to the conflict only because of their interest in the land. Clearly, then, the judgment operates as an adjudication of title to an interest in land. These strangers to the canceled instruments, who were in possession under deeds of record, have had their title and possession taken from them in a summary proceeding seeking cancellation. Such an action to cancel a voidable deed is characterized as an in personam action, rather than a suit for recovery of land. Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025; Glenney v. Crane, 352 S.W.2d 773, ref., n.r.e.; (but see Free v. Owen, 131 Tex. 281, 113 S.W.2d 1221). Regardless of its characterization, it cannot operate to deprive these defendants of their title and possession without an adjudication of the basis of their claims to such title. We think the judgment is also erroneous for that reason. Rule 789 provides that 'Under such plea of 'not guilty' the defendant may give in evidence any lawful defense to the action except the defense of limitations, which shall be specially pleaded.' This is held to include both legal and equitable defenses . Smith v. Baker (Civ.App.1964), 380 S.W.2d 725; ref., n.r.e., 383 S.W.2d 570. And where the defendant pleads 'not guilty', the burden is on the plaintiff, as movant for summary judgment, to show that the defendant had no such defenses. Briggs v. Freeway Park...