State v. Humble Oil & Refining Co., 2595.

• Decision Date: 25 January 1945
• Docket Number: No. 2595.,2595.
• Parties: STATE et al. v. HUMBLE OIL & REFINING CO. et al.
• Court: Texas Court of Appeals

Page 93

187 S.W.2d 93

STATE et al. v. HUMBLE OIL & REFINING CO. et al.

No. 2595.

Court of Civil Appeals of Texas. Waco.

January 25, 1945.

Rehearing Denied April 5, 1945.

COPYRIGHT MATERIAL OMITTED

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

Suit in trespass to try title by W. T. Williams against Humble Oil & Refining Company and others wherein the State of Texas intervened. The suit was consolidated with other suits involving the same tract of land. From a judgment for Humble Oil & Refining Company and others, the State of Texas and others separately appeal. The appeals were consolidated.

Affirmed.

Grover Sellers, Atty. Gen., and Geo. W. Barcus, Asst. Atty. Gen., for appellant State of Texas.

McComb & Davis, of Conroe, W. T. Williams, of Austin, Sam Neathery, of Houston, W. T. Williams, Jr., of Austin, and

Sterling Williams, of Snyder, for appellants Davis and Williams.

C. W. Croom, of Houston, S. J. Bennett, of Durham, N. C., Matt H. Allen and Rivers Johnson, both of Kingston, N. C., and W. D. Siler, of Pittsboro, N. C., for appellants Hardy Washington Strickland and others.

James G. Davis, of Houston, and Willard Drake, of Birmingham, Ala., for appellants Jerry Strickland and others.

Ben F. Cone, of Waco, for appellant John Vince.

John O. Douglas, of Houston, and W. C. Dempsey, of Ashland, Ala., for appellants Willette Strickland Tobias and others.

E. G. Hobbs, of Selma, N. C., Edgar Monteith, of Houston, and Carl S. Farmer, of Abbeville, Ala., for appellants Matthew Strickland and others and Yancey Strickland and others.

J. D. Burns, of San Angelo, T. R. Johnston, of Big Lake, and Gordon M. Burns, of Huntsville, for appellants Mabel Bryant Wilson and others.

James M. Crane, of Conroe, and Geo. B. Culpepper, Jr., of Fort Valley, Ga., for appellants Roy Strickland and others.

Vinson, Elkins, Weems & Francis, John C. Townes, and E. E. Townes, Jr., all of Houston, Pitts & Liles, of Conroe, J. C. Wilhoit, of Houston, Jack W. Timmins, of Dallas, Pat N. Fahey, P. F. Graves, and R. E. Seagler, all of Houston, and G. D. Baten, of Beaumont, for appellees.

W. D. Gordon, of Beaumont, amicus curiae.

TIREY, Justice.

This suit was brought in trespass to try title to 495.22 acres of land (out of the Wilson Strickland Survey, patented July 3, 1847) now in Montgomery County, Texas. In December, 1931, numerous suits were filed by various alleged heirs of Wilson Strickland; one suit was filed by an alleged grandson of Allen Vince; another suit was filed by a group of Phillips heirs. W. T. Williams filed suit against Humble Oil & Refining Company and other oil companies, landowners, and royalty-owners in possession, claiming that the Wilson Strickland patent was void and that he was entitled to an oil and gas lease thereon from the State. He joined Nat Davis, who had on file with the Commissioner of the General Land Office a rejected application for a mineral lease on the property which antedated the rejected application filed by him. He also joined the heirs and legal representatives of Wilson Strickland, Allen Vince, John Vince and C. B. Stewart and various other claimants, some of whom he alleged their places of residence to be unknown, and also "the unknown heirs and legal representatives of all the above named defendants, the name and places of residence of all of whom are unknown to plaintiff." Under the 1939 Leasing Act, Vernon's Ann.Civ.St. art. 5421c, §§ 6 and note, 8, 5421c—1 to 5421c—3, the State intervened by formal suit in the trespass to try title and in a second count pleaded specially in the alternative to cancel the Strickland patent. The State's suit asserted the invalidity of the Strickland patent and claimed it had never parted with title to said land and claimed that its title was superior to all others and that the Strickland patent should be cancelled.

On motion all suits involving this particular tract of land were consolidated and tried as one suit. Upon the trial the State, Williams and Davis constituted themselves into one group and presented their evidence as one claim. Each family of alleged Strickland heirs claiming to be unrelated to each other family of alleged Strickland heirs, presented its respective claim in a separate group (seventeen separate groups), each group seeking to establish its family group as the true heirs of the original Wilson Strickland.

The trial began on August 26, 1940, before a jury and was concluded August 2, 1941, when the jury returned their verdict and the court entered its judgment under date of August 11, 1941. At the conclusion of the testimony the trial court granted the defendants' (Humble Oil & Refining Company et al.) motion for an instructed verdict against Williams, Davis and the State. The court also overruled motion of Williams, Davis and the State for an instructed verdict in their behalf and thereupon the court submitted to the jury the cause of the other claimants. The verdict of the jury was against each family group. After the jury's verdict was returned the trial court overruled motion of Williams, Davis and the State for judgment notwithstanding the verdict, whereupon the court rendered judgment for the Humble Oil & Refining Company and various landowners in possession against all other parties. This action of the court is assailed as error. The cause was appealed to the Honorable Ninth Court of Civil Appeals and later transferred to this court by order of our Supreme Court. The State, Davis and Williams filed transcript and statement of facts, and in addition to the appeal bond filed by Williams and Davis, eight of the other family groups filed separate appeal bonds and transcripts and when the cause reached the Ninth Court of Appeals the clerk gave each group filing a bond a separate style and number. We have this day, on our own motion, consolidated each of these eight appealing groups under the above number and style. We will now give our attention to the errors assigned by plaintiff Williams, Davis and the State of Texas.

Since the State of Texas claims the land in question and since the trial court gave an instructed verdict against the State, Davis and Williams, the first major question that presents itself to us is: Did the State part with title to the land by virtue of the patent issued July 3, 1847? We think it did. It is obvious that if the State parted with its title, it has no further interest in the land and it necessarily follows that Davis and Williams have no claim. In passing upon this question "it is our duty to disregard all conflicts in the testimony; to consider the evidence adduced in the case in the light most favorable to plaintiff, and to indulge in his favor every intendment reasonably deducible from the evidence. Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935. When the facts are controverted, or such that different inferences may be reasonably drawn therefrom, an issue of fact is raised; it is only when the evidence is harmonious and consistent, and the circumstances permit of but one conclusion, that the question becomes one of law for the determination of the court. Wininger v. Fort Worth & D. C. R. Co., 105 Tex. 56, 143 S. W. 1150." James v. Missouri-Kansas-Texas R. Co., Tex.Civ.App., 182 S.W. 2d 921, 922, writ ref.

The point raised is vital and requires a comprehensive statement.

Harris County was originally named Harrisburg County. Section 10 of the Constitution of the Republic of Texas adopted March 17, 1836 (See Hartley's Digest, p. 38) provided: "Section 10. All persons (Africans, the descendants of Africans and Indians excepted) who were residing in Texas on the day of the Declaration of Independence, shall be considered citizens of the Republic, and entitled to all the privileges of such. All citizens now living in Texas, who have not received their portion of land in like manner as colonists, shall be entitled to their land in the following proportion and manner: Every head of a family shall be entitled to one league and labor of land; and every single man of the age of seventeen and upwards, shall be entitled to the third part of one league of land." According to the Lost Book of Harris County, Wilson Strickland made claim to one-third of a league of land under the above provision of the Constitution. Certificate 423, for one-third of a league of land, was issued to Wilson Strickland on March 16, 1838, by the Board of Land Commissioners of Harrisburg County. This certificate was conditioned on his paying a certain price per labor of land depending on its character. John Carson, Deputy Surveyor, made a survey of the land patented to Strickland subsequent to the 1st of July, 1838, and prior to August 15, 1838. George M. Patrick, County Surveyor of Harrisburg County, certified that he had examined the field notes and found them correct and the survey made according to law. On August 31, 1839, Wm. M. Burch, as agent of Wilson Strickland, paid in full to the Secretary of the Treasury of the Republic of Texas the consideration due as certified by John P. Borden, Commissioner of the General Land Office of the Republic of Texas. On January 29, 1840, the Republic passed an act to detect fraudulent land certificates. See 2nd Gammel's Laws of Texas, p. 313, Hartley's Digest, Art. 1946. This act provided for the election of three commissioners whose duty it should be to visit each county west of the Brazos River and three to visit each county east of the Brazos River and in conjunction with three county commissioners from the respective counties to inspect the records of the Boards of Land Commissioners and ascertain by satisfactory testimony what certificates for land had been issued to legal claimants and report as soon thereafter as practicable to the Commissioner of the General Land Office such certificates as they found genuine. The Land Commissioner was instructed by the Act to issue a patent upon the return of a survey by authority of a...