Tom v. Roberson

• Decision Date: 06 January 1916
• Docket Number: (No. 507.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 182 S.W. 698
• Parties: TOM v. ROBERSON.
• Court: Texas Court of Appeals

Page 698

182 S.W. 698

TOM v. ROBERSON.

(No. 507.)^*

Court of Civil Appeals of Texas. El Paso.

January 6, 1916.

On Rehearing February 10, 1916.

Appeal from District Court, Martin County; S. J. Isaacks, Judge.

Action by J. B. Roberson against C. Tom. Judgment for plaintiff, and defendant appeals. Affirmed.

Jno. B. Littler, of Big Springs, S. W. Pratt, of Stanton, and Chas. Gibbs, of Midland, for appellant. Morrison & Morrison, of Big Springs, for appellee.

WALTHALL, J.

This is a suit in trespass to try title, brought by J. B. Roberson, appellee, against appellant, C. Tom, seeking recovery of sections 21 and 29, block 36, township 2 N., T. & P. surveys in Martin county. Appellee claimed right of possession through a lease contract from J. F. Norton, the owner of the section. Appellant, Tom, pleaded "not guilty," and further pleaded his right of possession as sublessee from appellee. Appellee alleged that J. H. Epley, W. T. Epley, appellant, and appellee each own adjoining pastures in said county; that he (appellant) owns section 30, block 36, township 2 N., and is in the pasture of W. T. Epley; that section 33 in same block was formerly in the pasture of T. H. Epley, but is now in appellee's pasture; that said sections 21 and 29, involved in this suit, are now and for more than ten years have been in his (appellant's) pasture; that on February 13, 1912, a suit was pending in Martin county, in which suit W. T. Epley sued appellee on certain notes and to foreclose a lien; that about the time the suit was pending appellee had procured a lease to said sections 21, 29, and 33, neither of which was then in appellee's pasture; that pending the suit the two Epleys and appellant and appellee entered into a blocking contract with reference to said lands, resulting in a dismissal of said suit, at appellant's expense, with the agreement that J. H. Epley should yield his possession of section 33 to appellee, and that appellant should yield possession of his sections to J. H. Epley, and retain possession of said sections 21 and 29, and maintain one mile of fence along the north line of section 33, belonging to him (appellant) for the benefit of appellant, during the continuance of said arrangement; that the said blocking arrangement resulted in all controversies being adjusted, each party went into possession of the respective sections, as arranged, the suit was dismissed, expenses paid, and appellee's notes extended for one year, according to agreement; that it was understood and agreed that said blocking agreement should continue as long as the parties to the agreement owned or controlled the lands involved; that said agreement was attempted to be reduced to writing, a copy of which is made a part of appellant's answer. Appellant alleged that said written agreement, as written is ambiguous, in that "the intention of the parties thereto" is not made clear; "that by mistake and oversight the scrivener who reduced said agreement to writing failed to state definitely the life of said agreement, and by mutual mistake the parties to same signed said agreement as drawn." Appellant alleged that at the date of said agreement appellee held a lease from J. F. Norton covering sections 21 and 29 for a term of one year; that at the expiration of said lease, and pursuant to said blocking agreement, appellee procured another lease to sections 21 and 29 for a term of one year, and collected from appellant the rental due thereon; that at the expiration of that lease appellee procured another lease for one year, and again collected of appellant the annual rental, paying same to Norton, the owner; that at the expiration of said first and second lease contracts appellee represented to appellant that he would procure a renewal of the lease covering said sections 21 and 29 for the use and benefit of appellant, and in all things acquiesced in the original blocking agreement as made until the date of the renewal of the lease contract for the year 1915, appellant continuing to remain in possession of said sections 21 and 29 under said agreement during the years 1912, 1913, and 1914. Appellant alleged that, on account of appellee's having acquiesced in said original blocking contract from year to year and respected same as a permanent blocking arrangement, appellee is now estopped to deny the agreement and demand possession of sections 21 and 29; that on account of the conduct of appellee in procuring said lease contracts from year to year, for the use and benefit of appellant, appellant made no effort to secure a lease for himself from the owner, but relied upon the agreement, and has purchased cattle with which to stock said sections, and will be damaged, etc.; that at the renewal of said lease by appellee of sections 21 and 29 for 1915 appellant offered to pay the rental to appellee, and tendered same in court.

Appellee filed a supplemental petition, admitting and denying some of the facts alleged, not necessary to state here, but denied that there was any agreement as to permanency of the blocking agreement, and alleged that the written agreement signed by the parties was the agreement made, and denied that any mistake was made or any part of their agreement was omitted from the writing; alleged that appellant paid him the same rental he paid the owner, and that at the expiration of the written agreement he verbally let said sections 21 and 29 to appellant each year, and refused to extend the verbal lease to appellant for the year 1915, proffering, however, one of said sections to appellant for 1915, which appellant refused to accept.

The case was tried before the court without a jury. The court made and filed findings of fact, and thereupon entered judgment for appellant.

Findings of Facts.

Appellee leased from the owner sections 21, 29, and 33 on the 8th day of February, 1912, for a period of one year, and has renewed the lease each year since. Sections 21 and 29 were in appellant's pasture. After procuring the first lease a controversy arose between appellant and appellee on account of the two sections being in appellant's pasture. The following written contract was then made:

"The State of Texas, County of Martin.

"This article of agreement this day entered into by and between J. B. Roberson, of Martin county, Texas, and C. Tom, J. H. Epley, and W. T. Epley, of the county of Martin and state of Texas, witnesseth: That said J. B. Roberson, having all of sections Nos. 21, 29, and 33 in block No. 36, township 2 north, grantee, Texas & Pacific Railway Company, leased for the period of one year, and the said J. B. Roberson leases to C. Tom, at the same price he paid to Norton for said lease, and he, the said Roberson, retains the lease on said section No. 33 above described, and for such consideration for the two sections the said C. Tom agrees to pay all costs of a suit that was filed by W. T. Epley against the said J. B. Roberson to foreclose vendor's lien notes, provided it is agreeable with W. T. Epley for him to do so. It is further agreed that C. Tom is to have the fence on north line of said section 33 described, to be used by J. B. Roberson, during the life of this lease. It is further agreed that one-half of fence is to be built by J. B. Roberson and W. T. Epley jointly on the east side of the south one-half of section No. 32, and I, J. B. Roberson, agree that the one mile of fence on the east side of section No. 33 belongs to J. H. Epley, and the said W. T. Epley agrees to give J. B. Roberson one year's time on the land notes that are owned by J. B. Roberson, as he, W. T. Epley, provided the same time can be secured from Norton. This contract is signed by J. B. Roberson and C. Tom with the understanding it will meet the approval of J. H. Epley and W. T. Epley and signed by them. Witness our hands at Stanton, Texas, this 13th day of February, A. D. 1912. [Signed] C. Tom. J. B. Roberson. J. H. Epley. W. T. Epley."

In the negotiations arising on account of the controversy, Roberson and Tom agreed between themselves that, if Tom would secure an extension from J. H. Epley for a period of one year on the time of payment of the notes due to Epley by Roberson, Roberson would let Tom use sections 21 and 39 so long as he (Roberson) should have same under lease or under his control, it being contemplated at the time that Roberson should secure a renewal of the one-year lease from year to year; after entering into the agreement orally, in which it was contemplated, as a part of it, that Tom should have the use of said two sections 21 and 29, so long as they were under the control of Roberson,...