De Tenorio v. McGowan, Civ. A. No. 1608.

• Decision Date: 01 October 1973
• Docket Number: Civ. A. No. 1608.
• Citation: 364 F. Supp. 1051
• Parties: Dorotea Zaldivar V. De TENORIO, Plaintiff, v. H. E. McGOWAN et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

364 F. Supp. 1051

Dorotea Zaldivar V. De TENORIO, Plaintiff, v. H. E. McGOWAN et al., Defendants.

Civ. A. No. 1608.

United States District Court, S. D. Mississippi, E. D.

October 1, 1973.

Vardaman S. Dunn, Jackson, Miss., and Paul M. Neville, Meridian, Miss., for plaintiff.

Tally D. Riddell, Quitman, Miss., and Jack H. Ewing, Jackson, Miss., for defendants.

OPINION OF THE COURT

DAN M. RUSSELL, Jr., Chief Judge.

Dorotea Zaldivar V. De Tenorio, a non-resident alien of the United States and a citizen of the Republic of Honduras, brought this action against numerous Mississippi residents and non-residents, to confirm her title and interest in and to a 37 acre tract of land in Clarke County, Mississippi, more particularly described as:

"All of the NW¼ of NE¼, less 3 acres in the SW¼ of NW¼ of NE¼, lying South of the Shubuta and Vossburg Road, all in Section 22, Township 1, Range 14 East, containing 37 acres, more or less, in Clark County, Mississippi,"

subject only to such outstanding oil, gas and mineral leases or royalty conveyances as may have been executed by her. Plaintiff claims that she inherited a one-half interest in said tract from her sister of the whole blood, one Maria Obdulia Zaldivar McGowan, widow and sole heir of E. J. McGowan, deceased, the record owner of said tract prior to a 1968 state court confirmation of title suit in Clarke County, filed by H. E. McGowan, a defendant herein, and who was a brother of the aforesaid E. J. McGowan, deceased.

By an order of this Court, dated June 11, 1973, amending the pre-trial order of the same date, certain parties who failed to appear or participate in the pre-trial hearing were adjudged in default and their claims were cancelled and held for naught except as to any of said parties claiming through the aforesaid H. E. McGowan, deceased, or his assigns, in the event title in this action be confirmed in H. E. McGowan. These parties are Wiley Fairchild, Hattiesburg, Mississippi, a defendant to the original complaint and to the cross-complaint of H. E. McGowan, et al; J. L. Sellers, Hattiesburg, Mississippi, a defendant to the original complaint; Cecil E. Barnett, Laurel, Mississippi, and his assignee, Robert L. Thomsen, Jackson, Mississippi, defendants to the original complaint; Hess Pipeline Company, Wilmington, Delaware, a defendant to the original complaint; and Viking Oil Company, a Mississippi corporation, First Mississippi National Bank, Hattiesburg, Mississippi, John Bethea, Hattiesburg, Mississippi, and Anselmo Zaldivar, Hilario Zaldivar, Felipe Murillo Zaldivar, Adela Zaldivar, and Victor Zaldivar all of Puerto Cortes, Honduras, defendants to the cross-complaint of H. E. McGowan, et al.

The Court finds it unnecessary to detail in this opinion a recitation of all the various and numerous pleadings inasmuch as the aforesaid pre-trial order, as amended, succinctly and accurately reflects the alignment of the parties, the admitted matters and facts, pertinent documents, and the factual matters and legal issues in dispute. The trial of the case, heard to the Court, was confined to the matters set out in the pre-trial order and the pleadings made pursuant thereto.

In the pre-trial order, it was admitted that all jurisdictional questions were resolved as a result of an opinion dated November 10, 1971 and order rendered thereon wherein the Court found that it had jurisdiction under 28 U.S.C. § 1331, this action involving a construction of a treaty of the United States.

FACTS ESTABLISHED IN THE PRE-TRIAL ORDER

The 37 acre tract of land in Clarke County, Mississippi, described above, was patented by the United States of America to one Marmaduke Gardner in 1841 and by mesne conveyances became vested in E. J. McGowan, then of Clarke County, who acquired same as grantee in two warranty deeds, namely: a deed from T. J. Evans dated November 17, 1911, recorded in Deed Book I-1 at page 197, conveying the N½ of NW¼ of NE¼, and the SW¼ of NW¼ of NE¼, less 3 acres, in Section 22, T 1, R 14 E, containing 27 acres, more or less; and a deed from J. W. McGowan dated December 15, 1915, recorded in Deed Book I-1 at Page 196, conveying the SE¼ of NW¼ of NE¼, in the same section, township and range, containing 10 acres, more or less, both of said deeds being filed for record on December 20, 1915, and recorded thereafter in the deed records of the Chancery Clerk of Clarke County. Copies of these deeds are exhibits herein.

About 1911, E. J. (Elbert John) McGowan went to Central America where he thereafter resided and worked in various Central American countries, including Panama and Honduras. He was lawfully married to Maria Obdulia Zaldivar, born in Honduras of Honduran parents. This marriage continued until the death of E. J. McGowan. There were no children born of this marriage. E. J. McGowan and his wife took into their home and reared a child, Elsie Reina McGowan,¹ who was not their natural child, nor legally adopted by them, nor an heir at law of either E. J. McGowan or his wife. E. J. McGowan died intestate in the Republic of Panama on October 31, 1957, leaving as his sole heir at law, his wife, Maria Obdulia Zaldivar McGowan. She died intestate in the Republic of Honduras on February 28, 1969, without having remarried and without a child having been born to her and without having legally adopted a child. She was survived by one sister and one brother of the whole blood, namely a sister, Dorotea Zaldivar V. De Tenorio, plaintiff herein, and one brother, Felipe Murillo Zaldivar.² There were no other surviving brothers or sisters of the whole blood, or descendants of a brother or sister of the whole blood. The remaining brothers and sisters, viz:, Anselmo Zaldivar, Hilario Zaldivar, Adela Zaldivar and Victor Zaldivar, are of the half-blood, were named as defendants in the cross-complaint of H. E. McGowan, and have defaulted herein. Neither parent of Maria Obdulia Zaldivar McGowan survived her death. Nor did Maria Obdulia Zaldivar McGowan, widow of E. J. McGowan, ever renounce her Honduran citizenship. Although she resided in various localities with her husband, E. J. McGowan, a citizen of the United States, she remained a citizen of Honduras and died there.

After the death of E. J. McGowan, his brother, H. E. McGowan, received an official "Report of the Death of an American Citizen" from the Consul, American Foreign Service Panama. This report was produced on plaintiff's request and filed as an Exhibit herein.

Neither H. E. McGowan nor any member of the McGowan family communicated with Maria Obdulia Zaldivar McGowan upon or after the death of E. J. McGowan, or undertook to advise her concerning the estate of E. J. McGowan located in the United States. As stated above, Maria Obdulia Zaldivar McGowan, died intestate in Honduras on February 28, 1969, leaving as her sole heirs at law, a sister, plaintiff, Dorotea Zaldivar V. De Tenorio, and a brother, Felipe Murillo Zaldivar.

On August 14, 1968, prior to the death of the widow of E. J. McGowan, defendant, H. E. McGowan filed in the Chancery Court of Clarke County, Mississippi, a confirmation suit, No. 7852 on the docket of that court, against his brothers and sisters, the widow of a deceased brother residing in Mississippi, and against "the unknown heirs, if any, of E. J. McGowan, deceased." A final decree was entered on October 22, 1968, vesting the fee title in H. E. McGowan, but no attempt was made to serve process or give notice to Maria Obdulia Zaldivar McGowan, then residing in Honduras. Copies of all pleadings in this suit are exhibits herein.

The Treaty of Friendship, Commerce and Consular Rights existing between the United States and the Republic of Honduras, a copy of which is an exhibit herein, was in effect during all relevant periods of time.

Plaintiff Dorotea Zaldivar V. De Tenorio has executed oil, gas and mineral leases to W. Baldwin Lloyd, brought into the case by cross-claims filed by some of the original defendants. His factual claims coincide with those of his lessor, the plaintiff, Dorotea Zaldivar V. De Tenorio, and are applicable to the one-half interest she claims in the realty, subject to the reservation therein of a royalty interest. These leases are recorded in Book OGL 66 at page 238 and in Book OGL 67 at page 237 in Clarke County, and copies are exhibits herein. Felipe Murillo Zaldivar executed a deed covering his interest in the realty to Elbert John McGowan, James Patrick McGowan and Louis Harold McGowan, wards of Peter K. Smith, guardian of their estates, who, in turn, has executed oil, gas and mineral leases to Corsair Petroleum Corporation recorded in Book OGL 66 at pages 425, 427 and 429, retaining a royalty interest. These instruments, or certified copies, are exhibits herein.

Since the filing of the original complaint, Inexco Oil Company, a defendant herein, has drilled an oil well on a production unit including the 37 acre tract. Amoco Production Company, a defendant, is the operator of the well. The purchaser of the oil production is Miller Oil Purchasing Company, and the purchaser of the gas production is Tonkawa Gas Purchasing Company.

PLEADINGS AND OTHER EVIDENCE

As a part of the pre-trial order plaintiff agreed to amend her complaint to reduce her claim to a one-half interest in the 37 acre tract, subject to the lease executed by her to W. Baldwin Lloyd, her title having been derived by inheritance through her sister, Maria Obdulia Zaldivar McGowan, who was survived by two and only two heirs, namely, the plaintiff, sister of the whole blood, and Felipe Murillo Zaldivar, brother of the whole blood. Plaintiff agreed to further amend her complaint to allege that since the initiation of this suit, a well has been drilled on an 80 acre unit which includes the land in controversy; that the well is now and has for some time been producing oil and gas; that the well was drilled by defendant, Inexco Oil Company, but is now being operated by the defendant, Amoco...