Texas Co. v. McMillan

• Decision Date: 30 December 1935
• Citation: 13 F. Supp. 407
• Parties: TEXAS CO. v. McMILLAN et al.
• Court: U.S. District Court — Northern District of Texas

13 F. Supp. 407

TEXAS CO. v. McMILLAN et al.

District Court, N. D. Texas, Dallas Division.

December 30, 1935.

H. S. Garrett and H. R. Wilson, both of Fort Worth, Tex., for complainant.

Ramey, Calhoun & Marsh and S. L. Brown, all of Tyler, Tex., and Bullington, Humphrey & King, of Wichita Falls, Tex., for respondents.

Morgan, Culton, Morgan & Britain, of Amarillo, Tex., and O. T. Warlick, of Vernon, Tex., for interveners.

ATWELL, District Judge.

The complainant brought its bill against L. O. McMillan, A. F. McMillan, and 40 other respondents to restrain claims of ownership, trespassing, and otherwise interfering with its title, possession, and control of 9723.8 acres of land in Foard and Cottle counties, Tex. Sharon v. Tucker, 144 U.S. 533, 12 S.Ct. 720, 36 L.Ed. 532; Colquitt v. Roxana Petroleum Corporation (C.C.A.) 49 F.(2d) 1025; Tyler v. Stanolind Oil & Gas Co. (C.C.A.) 77 F. (2d) 802.

Jessie Herring Johnson, her husband, Les K. Johnson, and Leslie McAdams intervened, supporting the theory of the complainant as to the survey lines and limitation.

The complainant asserted rights under a lease executed by many of the respondents to it for $43,000, some of whom had in turn conveyed to the respondents McMillan royalty on any oil production from lands that had theretofore been leased to the complainant; such transfers to the McMillans reciting the lease to the complainant and declaring subjection thereto. Other respondents claim to be the heirs of John T. Smith. The Smith survey was specified in the 9723.8 acres, originally secured by complainant, to have 358 acres more or less, while the original patent from the state showed it to have had 1,280 acres, more or less.

The Smith survey is shown to lie south of block L, which block contains sections 34, 35, 36, and 37, each of which is older and senior to the Smith survey.

To the west of sections 35 and 36 lay the Anglin and Johnson surveys. The respondents claim that some of the Smith 1,280 acres is to be found on these last two mentioned tracts, or, to the west of the west line of 35 and 36. The complainant and the interveners assert that the original Smith survey called for 1,280 acres more or less, and if it had any more than the 358 acres now shown on it, such overplus was erroneously surveyed into and upon the surveys that laid in block L as mentioned above; that such error was due to a failure of the junior surveyor to take into account the difference between magnetic north and true north as recognized and provided in the laws of Texas at what is known as the Jacksboro station.

The McMillans, after acquiring royalty rights from the vendors of complainant, received payments from the complainant upon such portion of the lands as were developed. Such acquisition and acceptance of benefits by them from the complainant places them in the attitude of having recognized, confirmed, and ratified the title of the complainant, and they are estopped to deny its estate. Texas & Pacific Coal & Oil Co. v. Kirtley (Tex.Civ.App.) 288 S.W. 619; 2 Story Eq.Jur. (13th Ed.) § 180; Fox v. Windes, 127 Mo. 502, 30 S. W. 323, 48 Am.St.Rep. 648; Bearden v. Texas Co. et al. (Tex.Civ.App.) 41 S.W. (2d) 447; Jones v. Patterson, 307 Mo. 462, 271 S.W. 370; Schloss Bros. & Co. v. Stern Co. (C.C.A.) 53 F.(2d) 574; Wilson v. Union Electric Light & Power Co. (C. C.A.) 59 F.(2d) 580.

There is another principle of estoppel which operates against the respondents. In the lease to the complainant there was a warranty. These particular respondents bought from such warrantors. It is a rule of property that neither a warrantor nor a person in privity with him may question the validity of that title, nor, from such a warrantor, assert a hostile outstanding title against the same. Kimbro v. Hamilton, 28 Tex. 560; Carver v. Jackson, 4 Pet. 1, 101, 7 L.Ed. 761; Hardy v. De Leon, 5 Tex. 211; Stone v. Sledge, 87 Tex. 49, 26 S.W. 1068, 47 Am.St.Rep. 65; Robinson v. Douthit, 64 Tex. 101; Willis v. Smith, 72 Tex. 565, 10 S.W. 683; Breen v. Morehead (Tex.Civ.App.) 126 S.W. 650; Texas Pacific Coal & Oil Co. v. Fox (Tex.Civ. App.) 228 S.W. 1021.

This rule is so incisive and decisive that a title acquired by a vendor after he has conveyed a defective title passes eo instante to his vendee. Baldwin v. Root, 90 Tex. 546, 40 S.W. 3; French v. Spencer, 21 How. 228, 16 L.Ed 97.

Recent authorities on this question of estoppel and ratification are Grissom v. Anderson (Tex.Sup.) 79 S.W.(2d) 619; Humble Oil & Refining Co. v. Clark (Tex. Com.App.) 87 S.W.(2d) 471.

In Gibson v. Lyon, 115 U.S. 439, 6 S.Ct. 129, 133, 29 L.Ed. 440, it was said that: "He a person certainly cannot be permitted to claim both under and against the same deed; to insist upon its efficacy to confer a benefit and repudiate a burden with which it is qualified is to affirm a part and reject a part."

Upon the other feature of the case which relates to 5, 10, and 25 years' limitation, as pleaded by the complainant and interveners, vendors of complainant, in support of title against the heirs of James T. Smith, the proof shows a continuity of notorious, open, adverse possession, together with the payment of taxes. Neither of the alleged heirs has ever been upon the land, if it be conceded that they are in truth the heirs of the original Smith, the grantee. Carter v. Webb (Tex.Civ.App.) 239 S.W. 630.

When a junior surveyor seeks the pointings of an original survey he must travel in the footsteps of that surveyor. The position lines, corners, fences, roads, and well-marked outlines, which have been recognized by the people during the years, must control. Where indicia of that sort, together with a compass variation in harmony with the number of degrees fixed by state statutes, harmonize with present and past holdings and show an overlapping on senior surveys, the court must be guided thereby and so fix the boundaries.

Surveyor Williams drives the mind to the inevitable, it seems to me, conclusion that while the J. T. Smith survey may have had 1,280 acres more or less, that as a matter of fact it must have had considerably less, and if there is any more in it than the 358 acres,...