Thorn v. Dunn

• Court: Texas Court of Appeals
• Writing for the Court: Blair
• Citation: Thorn v. Dunn, 94 S.W.2d 1229 (Tex. App. 1936)
• Decision Date: 13 May 1936
• Docket Number: No. 8278.,8278.
• Parties: THORN v. DUNN.

94 S.W.2d 1229

THORN v. DUNN.

No. 8278.

Court of Civil Appeals of Texas. Austin.

May 13, 1936.

Appeal from District Court, Tom Green County; O. L. Parish, Judge.

Action by H. B. Dunn against L. D. Thorn. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Fowler Roberts, of Big Lake, and Kerr & Gayer, of San Angelo, for appellant.

BLAIR, Justice.

Appellee H. B. Dunn sued appellant L. D. Thorn on his two notes, each for $500, and executed in part payment of lot 8 and the south 80 feet of lot 7, in block 12, of the town of Iraan, Tex.; and to foreclose a vendor's lien on the lots given to secure the notes. The defense was failure or partial failure of consideration of the notes, because appellee had not conveyed the title to the minerals in said lots. The jury found the value of the minerals to be $1, and judgment was accordingly rendered for appellee in the sum of $1,193.38; hence this appeal.

The notes were executed in connection with a written contract whereby appellee agreed, in exchange for appellant's 200 acres of land, to sell and convey appellant certain personal property and the "business building and the two lots" in suit, "free and clear of any and all encumbrances, debts, or liabilities of any kind," the notes representing the agreed difference in the value of the properties exchanged.

Appellee was not the record owner of the two lots in suit, but caused the record owner to convey the same to appellant by a general warranty deed. However, several years prior to the transaction in question, Ira G. Yates reserved all minerals in the lots by a dedication instrument to the city of Iraan, Tex., and his deeds conveying the lots to appellant's predecessors in title likewise reserved all the minerals in the lots, and referred to the dedication instrument as having reserved all the minerals in all the property dedicated to said town of Iraan. The deeds reserving the minerals were not recorded until after the transactions between appellant and appellee were closed; and appellant testified that he did not know of such reservation of minerals until several months afterwards. The present owner of the minerals, Ira G. Yates, refused to sell them at any price.

Appellant's first two propositions relate to the improper argument of counsel for appellee to the jury in connection with the issue submitting for determination the value of the minerals in the lots. The substance of the first argument was that since the transactions involved were closed appellant had become a banker and tried to repudiate his just debts; and that the jury should "answer six cents" as the value of the minerals, "as a rebuke" to appellant for failure to pay his just debts. The second argument was that the lots were so small that no location of a well could be made, and for this reason the minerals were of little value. There was no evidence supporting this argument. The cases are numerous which condemn such arguments. See Woodard v. Texas & P. Ry. Co. (Tex.Com.App.) 86 S.W.(2d) 38; Bradshaw v. Abrams (Tex.Com.App.) 24 S.W. (2d) 372; City of Pampa v. Todd (Tex. Com.App.) 59 S.W.(2d) 114.

We also sustain appellant's third proposition that the jury's finding of $1 as the value of the minerals in place was against the undisputed evidence and against the overwhelming weight and preponderance of the evidence. The only evidence as to the value of the minerals showed them to have a value of from $1,000 to $2,000. The lots were located within 2,000 feet of a flowing well. Geologists testified that the oil field extended to them, and showed a shallow pool all around them, and that they were located on the oil structure, and that mineral rights or leases on that structure were valuable. The agent of the owner of the minerals testified that the owner would reject $1,500, or any other price, for the mineral rights in question. Experienced oil men...