Texas Co. v. Lee, 5459.

• Decision Date: 22 November 1939
• Docket Number: No. 5459.,5459.
• Parties: TEXAS CO. v. LEE et al.
• Court: Texas Court of Appeals

135 S.W.2d 180

TEXAS CO. v. LEE et al.

No. 5459.

Court of Civil Appeals of Texas. Texarkana.

November 22, 1939.

Rehearing Denied December 7, 1939.

Appeal from District Court, Gregg County; C. E. McGaw, Judge.

Suit of trespass to try title by W. Edward Lee against the Texas Company and others for title and possession of the leasehold interest. From an adverse judgment, the Texas Company appeals.

Judgment affirmed.

H. R. Wilson, of Houston, for appellant.

Lee & Porter and Wynne & Wynne, all of Longview, for appellee.

WILLIAMS, Justice.

W. Edward Lee filed this suit in statutory form of trespass to try title including pleas of five and ten years' statutes of limitation, Vernon's Ann.Civ.St. arts. 5509, 5510, against The Texas Company and others for title and possession of 7/8 leasehold interest under a described 1.86 acre tract of land alleged to be located in the John Blair Survey in Gregg County. The names and disposition made of the other defendants are immaterial. The real contest was between plaintiff and The Texas Company, which answered with a general demurrer, plea of not guilty, general denial, and special pleas of limitation title.

The findings of fact and conclusions of law filed by the court sustained plaintiff's contentions, namely: (1) That the strip of land in controversy was situated in the Northwest corner of the Blair Survey, and within the field notes of a larger tract conveyed by Thurmond and wife in 1904 to C. G. Strong and wife, Josie; (2) that the Strongs' possession of the land thereafter matured into a five year limitation title; and they were the owners of such title when they executed and conveyed a 7/8 leasehold estate covering 113 acres out of this survey to the Mid-Kansas Oil & Gas Company; and (3) through mesne conveyances plaintiff became the owner of the leasehold estate covering the strip in controversy.

Plaintiff introduced in evidence over objections of defendant certain documentary evidence among which were the following:

1. Patent from the State of Texas to John Blair.

2. Oil and Gas lease from C. G. Strong and wife to Mid-Kansas Oil & Gas Company, dated December 22, 1930.

3. Assignment of above lease to Tidal Oil Company dated July 29, 1931; recorded September 2, 1931.

4. Release of oil payment, Mid-Kansas Oil & Gas Company to Tide Water Oil Company dated February 28, 1934; recorded April 7, 1934.

5. Quitclaim deed from Marathon Oil Company, a corporation, and Tide Water Oil Company, to W. Edward Lee, dated March 27, 1936; recorded April 6, 1936.

The objection above urged and the exception to the court's findings, later detailed, are the basis of a proposition which reads: "In so far as concerns each of plaintiff's muniments of title, the instrument filed by the plaintiff on December 29, 1936, pursuant to defendant's demand, did not comply with the requisites of Art. 7378, R. S. 1925, and therefore none of such muniments of title were admissible in evidence under the provisions of Art. 7377."

In response to defendant's demand, Article 7376, plaintiff on December 29, 1936, timely filed his "written abstract of title" containing twenty paragraphs, the first three of which pertinent to this proposition read:

"(1). Each and every of the instruments and plats contained in abstract No. 2897, compiled by Gregg Abstract Company, certificate dated 10:41 A. M., November 9, 1933.

"(2). Each and every of the instruments and plats contained in abstract No. 3764, compiled by Gregg County Abstract Company, certificate dated 7 o'clock A. M., April 29, 1936.

"(3). Each and every of the instruments and plats contained in Abstract No. 3769, compiled by Gregg County Abstract Company, certificate dated 7 o'clock A. M., May 25, 1936."

The other seventeen paragraphs relate to patents covering the adjacent Tennison and Brown Surveys, judgments, and oral testimony to be offered. At the same time plaintiff tendered and filed above abstracts with the papers in this cause.

In the findings of fact and conclusions of law, the court states:

"Each and every of the instruments offered in evidence by plaintiff as a claim of title were included in and a part of the written abstract of title filed by plaintiff."

"The abstract of title filed by plaintiff, * * * showed the nature of each written instrument intended to be used as evidence and its date, parties to, date of proof of acknowledgment, and before what officer the same was made, * * * where recorded stating the book and page of the record; * * * While the abstract filed by plaintiff contained full copies, and in most instances furnished more information than required by statute, yet it must be said that all the statutory requirements were complied with and defendants were fully apprised thereby in writing of the claim or title to the premises upon which the plaintiff relied, and * * * the requirements of the statutes were fully met."

It is apparent that the foregoing findings are grounded solely upon the data contained in the three abstracts. Defendant does not attack the foregoing on the ground that same was not disclosed in the abstracts, but contends that plaintiff in his "abstract in writing of the claim or title to the premises upon which he relied" should have therein specifically listed the muniments and given the date specified in Article 7378.

The abstracts were made a part of plaintiff's abstract in writing of his title upon which he relied. The abstracts so filed have not been brought forward in this record. We are not advised as to the size or contents of either, other than what is disclosed in above-quoted findings of fact. The abstracts may have included other documentary evidence not introduced in the trial, but did include all the instruments which were introduced. Not only the data required in Art. 7378, but also the full contents of each instrument were furnished. Defendant does not claim to have been misled. The record does not intimate that the procedure used operated as a "smoke screen" to hide or becloud the chain of title upon which plaintiff relied. The evident purpose of Article 7378 and its related articles 7376, 7377, and 7379, is to furnish the adversary the list of documentary evidence that will be introduced against him, with such additional information as will enable him, by investigation of the book and page of the records, to ascertain the exact character of the instruments relied upon, and thereby enable him to prepare his defense as against the evidence which he is thus informed the other party will adduce upon the trial, Coler v. Alexander, 60 Tex.Civ.App. 573, 128 S. W. 664; Butler v. Duffey, Tex.Civ.App., 288 S.W. 598, and thereby affording the adversary all the advantages that would be afforded by special pleading. Anderson v. Anderson, 95 Tex. 367, 67 S.W. 404. We therefore conclude that the "abstract in writing of the claim or title" filed by plaintiff meets the requirements of Article 7378.

Plaintiff sought to connect himself with such title as Strong and wife may have acquired. There was no common source of title. In considering the next proposition we shall assume that the land was situated in the John Blair Survey and the Strongs' possession had ripened into a five-year limitation title on December 22, 1930. On this date the Strongs conveyed a 7/8 leasehold estate to the Mid-Kansas Oil & Gas Company which in turn on July 29, 1931, assigned to the Tidal Oil Company, an Oklahoma corporation. In 1936 Tide Water Oil Company, an Oklahoma corporation, joined by the Marathon Oil Company, quitclaimed to plaintiff all their title and interest in the 1.86-acre...