Thompson v. Houston Oil Co., 5334.

• Decision Date: 07 March 1930
• Docket Number: No. 5334.,5334.
• Parties: THOMPSON et al. v. HOUSTON OIL CO. OF TEXAS et al.
• Court: U.S. Court of Appeals — Fifth Circuit

37 F.2d 687 (1930)

THOMPSON et al. v. HOUSTON OIL CO. OF TEXAS et al.

No. 5334.

Circuit Court of Appeals, Fifth Circuit.

February 6, 1930.

Rehearing Denied March 7, 1930.

W. D. Gordon and Thos. J. Baten, both of Beaumont, Tex. (E. E. Easterling, of Beaumont, Tex., on the brief), for appellants.

E. J. Fountain, Jr., of Houston, Tex., Henry O. Head, of Sherman, Tex., and Jesse J. Lee, of Houston, Tex. (Fred L. Williams, T. M. Kennerly, Andrews, Streetman, Logue & Mobley, and Kennerly Williams, Lee, Hill & Sears, all of Houston, Tex., on the brief), for appellees.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge.

This was an action in trespass to try title brought by appellants, who were the heirs and successors in interest of Samuel Beresford, against the Houston Oil Company and others. The District Court directed a verdict for appellees. The question at issue is the title to a league of land in Hardin county, Tex., which was originally granted in 1835 to D. C. Montgomery. Both sides rely on Montgomery as the common source of title. Appellants rely on the following deeds to establish their title: From Montgomery to Arthur Henrie, dated January 27, 1836, recorded February 28, 1845; Arthur Henrie to Samuel Beresford, dated February 27, 1845, recorded February 23, 1846; Samuel Beresford to his sons Francis, Richard, and Samuel Beresford, Jr., dated March 11, 1854, recorded February 27, 1901. The Houston Oil Company claims title by virtue of the following deeds: Montgomery to Samuel Moore, dated June 5, 1838, recorded March 22, 1841; Reuben Stephens, under power of attorney from Samuel Moore, to Mary E. Brown, daughter of David Brown, dated August 10, 1849, recorded October 11, 1854, and then regularly from Mary E. Brown through T. J. Word, George F. Moore John T. Irvin, and Texas Pine Land Association; then from the last named to the Houston Oil Company by deeds dated July 31, 1901, and December 5, 1914. The Beresford heirs brought suit against the Pine Land Association to recover possession of the league in November, 1901, which was after the date of the Association's first deed to the Houston Oil Company. This suit was brought in the District, then Circuit, Court of the United States, and resulted in a judgment in favor of the defendant. Prior to bringing that suit, and on February 19, 1901, the Beresford heirs executed to Walter W. Clippinger power of attorney and deed. The power of attorney conferred upon Clippinger the power to sell the land, to grant by lease or otherwise any right or interest therein, to take possession of and hold the land, and to substitute others to act for him in the administration of all rights of the grantors. The deed conveyed to Clippinger, as compensation for services rendered and to be rendered, an undivided two-fifths interest in the league, and, in the event of a sale, the same interest in the proceeds thereof.

On March 25, 1914, Clippinger, acting under his power of attorney, executed a deed of conveyance of the land to J. B. Hooks and W. J. Brackin, but failed to give the names of all the parties on whose behalf he purported to act either in the body of the instrument or under his signature. The consideration expressed in the deed was "value received," but it appears from an instrument executed contemporaneously by Hooks and Brackin that the real consideration was $5,000 and 25 per cent. of any proceeds realized from a sale or through compromise or litigation with adverse claimants. In the event the title failed, no consideration was to be paid. Hooks and Brackin organized the Village Mills Company, and conveyed their title to it. The Village Mills Company then went upon the land, and began to cut and remove the timber on it; whereupon the Houston Oil Company brought in the state court an action of trespass to try title against it, and recovered judgment upon a directed verdict.

A principal question in each of these two suits, one in the federal court and the other in the state court, was whether the deed from Montgomery to Samuel Moore was forged by David Brown. Village Mills Company appealed from the judgment against it to the Court of Civil Appeals, which held that the federal court judgment could not be relied on as res judicata on the ground that, prior to the bringing of that suit, the Pine Land Association had parted with its title, and that there were sufficient circumstances to take the case to the jury on the issue of forgery. Village Mills Co. v. Houston Oil Co., 186 S. W. 785. On appeal to the Supreme Court, the Commission of Appeals in an opinion expressed the views that the Houston Oil Company was entitled to rely...