Texas Pacific Coal & Oil Co. v. Hamil

• Decision Date: 04 February 1922
• Docket Number: (No. 9702.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: TEXAS PACIFIC COAL & OIL CO. et al. v. HAMIL.
• Court: Texas Court of Appeals

238 S.W. 672

TEXAS PACIFIC COAL & OIL CO. et al. v. HAMIL.

(No. 9702.)^*

Court of Civil Appeals of Texas. Ft. Worth.

February 4, 1922.

Rehearing Denied March 4, 1922.

Appeal from District Court, Stephens County; Harry Tom King, Judge.

Suit by Oscar J. Hamil against the Texas Pacific Coal & Oil Company and another, in which certain other parties intervened. From a judgment for plaintiff, defendants and the interveners appeal. Reversed and remanded.

W. J. Oxford, of Stephenville, John Hancock and W. B. Powell, both of Fort Worth, Penix, Miller, Perkins & Dean, of Mineral Wells, and Jas. G. Harrell, of Breckenridge, for appellants.

W. A. Shields and K. K. Scott, both of Breckenridge, and Merritt & Leddy, of Dallas, for appellee.

DUNKLIN, J.

Oscar J. Hamil instituted this suit in the form of trespass to try title against the Texas Pacific Coal & Oil Company and the Mid-Kansas Oil & Gas Company to recover title to 160 acres of land situated in Stephens county, Tex.; also to remove as a cloud from plaintiff's title an oil and gas lease on the land executed by Lizzie Hamil for herself and as guardian of the estate of her three minor children to the Texas Pacific Coal & Oil Company, and a deed of assignment by that company to an undivided one-half interest in said lease in favor of the Mid-Kansas Oil & Gas Company.

The two oil companies pleaded a general denial, and not guilty, and specially pleaded the statute of limitation of ten years.

Mrs. Lizzie Hamil, for herself and as guardian of the estate of her three minor children, filed a plea of intervention in the form of a suit in trespass to try title against plaintiff to recover title to the land and to annul and remove plaintiff's claim of title as a cloud upon intervener's title. Interveners further claimed title to the land under the statute of limitation of ten years.

In reply to the plea of intervention, the plaintiff alleged that the interveners were claiming title under a parol contract or agreement, which was void because in contravention of the statute of frauds. Plaintiff further alleged, upon information and belief, that interveners had paid certain taxes on the land and certain indebtedness formerly due the state for said land, and in that connection pleaded a tender to interveners of all sums so paid by them with legal interest from date of payment.

Judgment was rendered in favor of the plaintiff for title to the land, for a cancellation of the lease, and the assignment thereof by the Texas Pacific Coal & Oil Company, but further decreed a recovery by the interveners against the plaintiff for the sum of $1,260.26, the amount which interveners had paid out for taxes, improvements, and purchase money to the state of Texas. A writ of restitution was awarded to plaintiff for possession of the land, conditioned upon his paying to interveners the sum so awarded to them, and interveners were also awarded an execution against the plaintiff to collect the amount of the judgment so decreed in their favor.

From that judgment the two oil companies and the interveners have appealed.

The case was tried before the court without a jury, and the trial judge has filed findings of fact and conclusions of law, which, stated in narrative form, are as follows:

"One June 5, 1908, C. M. Hamil filed in the General Land Office of the state of Texas his application to purchase and his obligation to pay the state the purchase price of the north one-half of section 14, block 5, certificate 2/797, Texas & Pacific Railway Company survey of 160 acres, the purchase price being $4 per acre, and the said C. M. Hamil made the cash payment of one-fortieth required by law, which accompanied said application, which said application and award was duly and legally made in accordance with the laws of this state and said land was on the 20th day of June, 1908, duly and legally awarded to the said C. M. Hamil, without condition of settlement.

"(2) On the 31st day of July, 1920, C. M. Hamil, the person to whom the above-described land was awarded, conveyed the same by general warranty deed to his son by his first marriage, Oscar J. Hamil, in consideration of the sum of $5 cash paid and the assumption by the said Oscar J. Hamil of the amount then owing the state of Texas as purchase money and the further consideration of love and affection; said deed being duly filed for record in the office of the county clerk of Stephens county, Tex., on the 7th day of August, 1920.

"(3) In July, 1908, C. M. Hamil and the eight children of his second marriage had a verbal division and partition of certain lands, the community property of said marriage, the mother of said children dying in 1904. At the time such division was made he told said children that they could take the land lying on the east side of a certain public road and the `home place' situated on the west side of said road, said home place being the 160 acres of land lying immediately south of the land in controversy, and that he would take the land lying on the west side of the road; C. M. Hamil further stating that whoever got the home place in the division made by the children of the land given them could have the 160 acres in controversy, provided they would pay it out. Thereafter C. M. Hamil sold all of the land received by him in said partition and the various children accepted the portions received by them.

"(4) Thirty-five acres of the home place was in a state of cultivation and on which there was located a two-story five-room house, barns, outhouses, etc.

"(5) In said division made by the children of the community estate of their mother, John W. Hamil was awarded the home place, and that in October, 1908, he, with his family, moved on the home place, adjoining the land in controversy, using the entire 320 acres. The land in controversy was pastured by him with his stock up to the time of his death in 1911, and that after his death his wife Lizzie Hamil moved away from said place and has not since said time resided thereon, she renting the place each year to tenants, who used the land involved for pasturage and grazing stock up until November, 1919, when the fences were torn down on account of oil development in the community, and no one has used or been in actual possession of said property since said date; the improvements on the home place being destroyed by fire in 1914.

"(6) From the date of the division of the community estate of C. M. Hamil's second marriage, John W. Hamil claimed to own the land in controversy up until the date of his death, and thereafter the same has been continuously claimed by interveners.

"(7) John W. Hamil and Lizzie Hamil paid to the state of Texas each and every year all of the interest due the state on the purchase price of said land, except as shown by the succeeding finding, and on August 9, 1920, Lizzie Hamil paid to the state the total sum of $639.97, being the balance due the state on said purchase, and a patent was issued for said land in the name of C. M. Hamil; all of the state and county taxes subsequent to the year 1908 have been paid by the said John W. Hamil and interveners.

"(8) On the 26th day of July, 1910, the land in controversy was forfeited by the Commissioner of the General Land Office of the state of Texas, for nonpayment of interest, and the same was reinstated on the 5th day of August, 1910; John W. Hamil paid the interest and penalties necessary for the reinstatement of said application, and it was reinstated in the name of C. M. Hamil, in accordance with the original application of the said Hamil.

"(9) The land in controversy was rough, rocky land, fit for grazing purposes, but not suitable to cultivate, and was of the reasonable value of $4 per acre in July, 1908. At the time John W. Hamil took possession of said land there was a fence on two sides of same, it being fenced with a larger tract, and that the only improvements made on same by the said Hamil was to furnish the labor to build a three barbed wire fence on one side of the land a half a mile in length, with mesquite posts cut from the land; it requiring a laborer who was paid by John W. Hamil $25 a month and board one month to construct same, the adjoining landowner furnishing the material at a cost of approximately $100 to him, the fence being erected as a partnership one. John W. Hamil kept the fences in repair until his death, the extent of the repairs necessary nor the value of same not being shown. After the death of John W. Hamil, whatever repairs were made were made by the tenants of Lizzie Hamil at their own expense. Except as above shown, no other character of improvements were made on said place either by John W. Hamil or interveners. It does not appear that C. M. Hamil had actual knowledge of or consent to the making said improvements by John W. Hamil.

"(10) Lizzie Hamil received as rental for the land in controversy the sum of $140 per year for the years 1911 and 1912, and for the years 1913 to and including the year 1919 she received the sum of $150 per year, the rentals for the last-named years including the home place as well as the land in controversy, and she has received the sum of $1,200 as rentals from the land in question under the oil and gas lease made with the defendant Texas Pacific Coal & Oil Company, and in addition thereto she used said premises as a pasture for stock from 1908 to 1911; the value of the use of such property and the rentals received therefrom by the said Lizzie Hamil each year largely exceed the amount expended for improvements placed thereon.

"(11) A partition suit was filed by the heirs of C. M. Hamil by his second marriage in 1909, after the verbal partition in 1908, and a judgment was entered partitioning said community estate; the 160 acres in controversy not being included therein.

"(12) On December 12, 1916, Lizzie Hamil for herself and as guardian of the estate of her three minor children, Edward Hamil, Curry Hamil, and Reeves Hamil, executed...