Taylor v. County School Trustees

• Decision Date: 10 March 1921
• Docket Number: (No. 1166.)
• Citation: 229 S.W. 670
• Parties: TAYLOR et al. v. COUNTY SCHOOL TRUSTEES OF EASTLAND COUNTY et al.
• Court: Texas Court of Appeals

229 S.W. 670

TAYLOR et al. v. COUNTY SCHOOL TRUSTEES OF EASTLAND COUNTY et al.

(No. 1166.)

Court of Civil Appeals of Texas. El Paso.

March 10, 1921.

Rehearing Denied March 31, 1921.

Error from District Court, Eastland County; Joe Burkett, Judge.

Suit by the County School Trustees of Eastland County and another against A. A. Hilliard and others in which F. Wilmot Taylor and others intervene. From an adverse judgment, F. Wilmot Taylor and others bring error. Affirmed.

Conner & McRae, of Eastland, and R. H. Field, of Kansas City, Mo., for plaintiffs in error.

Scott, Brelsford & Smith, W. H. Sewell, and Sayles & Sayles, all of Eastland, for defendants in error.

HARPER, C. J.

The Taylor Charcoal Company was a corporation duly incorporated under the laws of Texas, January 10, 1919. October 6, 1890, G. H. Hard conveyed to the Taylor Charcoal Company 40 acres, which includes the 1 1/8 acres in controversy.

The said corporation executed the following deed (the underscored portions in writing and the balance in printed form).

"The State of Texas, County of ____.

"Know all men by these presents that the Taylor Charcoal Company, of the county of Eastland and state of Texas, in consideration of the sum of five and 50/100 dollars paid, the receipt of which is hereby acknowledged, as follows, _____ have granted sold and conveyed and by these presents do grant sell and convey unto the said [by pen in ink, with pen mark in ink through the words as indicated] Trustees of the Merriman school district No. #, the county judge and their successors and his successors for school purposes, of the county of Eastland and state of Texas, all that certain tract and parcel of land situated and being in Eastland county and state of Texas [here follows description by metes and bounds]. The same being the N. W. cor. of said cemetery survey, * * * containing 1 1/8 acres (one and one-eighth acres).

"To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said trustees and their county judge and his successors (of Merriman school district) # of Eastland county, Texas, heirs and assigns forever, and it does hereby bind itself and heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said trustees, county judge of said Eastland county school district, heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. In witness whereof said Taylor Charcoal Company has caused this deed to be signed by its president and attested by its secretary with the corporate seal hereto attached this May 5, 1891.

"Signed, sealed and delivered in presence of W. O. Thomas. T. H. Hudson, President.

"Attest: Greenup Bird."

The Taylor Charcoal Company is a dissolved corporation, at least is not now a going concern and has not been since 1896 or 1897, and the appellants are the owners of all the stock.

This suit was instituted in trespass to try title by the county school trustees and Warren Wagner, lessee under oil lease, against A. A. Hilliard and wife, unknown heirs of Hilliard, and the Taylor Charcoal Company. (The case as to the Hilliards was severed and prosecuted separately.)

The appellants John W. Taylor and Wilmot Taylor intervened, claiming to be the sole owners of all the stock of the Taylor Charcoal Company and thereby the owners of the fee to the 1 1/8 acres in controversy, including the oil, gas, and petroleum thereunder, alleging that the Taylor Charcoal Company dedicated the land for school purposes; that the recital in said deed of $5.50 consideration was a mere formality; that in fact no consideration was ever paid; that it was not the intention of the contracting parties that the minerals in, on, or under said lands should be conveyed.

The plaintiffs denied the affirmative allegations of interveners and pleaded stale demand. Tried to a jury, and after the evidence was all in the court instructed a verdict for plaintiffs and judgment...