Tucker v. Imperial Oil & Development Co.

• Decision Date: 28 May 1921
• Docket Number: (No. 9645.)
• Citation: 233 S.W. 339
• Parties: TUCKER et al. v. IMPERIAL OIL & DEVELOPMENT CO. et al.
• Court: Texas Court of Appeals

233 S.W. 339

TUCKER et al. v. IMPERIAL OIL & DEVELOPMENT CO. et al.

(No. 9645.)

Court of Civil Appeals of Texas. Fort Worth.

May 28, 1921.

Appeal from District Court, Stephens County; G. O. Bateman, Judge.

Suit by Jasper Tucker and others against the Imperial Oil & Development Company and others. From judgment for defendants, plaintiffs appeal. Affirmed.

Mackey & Ritchey, of Breckenridge, for appellants.

Shepherd & Kelly, of Eastland, for appellees.

DUNKLIN, J.

A tract of 161 acres of land situated in Stephens county was the community property of W. D. Tucker and his wife, Jennie Tucker, who died intestate on October 15, 1906. After her death, and on February 18, 1907, W. D. Tucker filed a petition in the county court of Stephens county, in which county he resided, and in which county Mrs. Jennie Tucker died, praying for the appointment of appraisers to appraise the community estate of the petitioner and his deceased wife, coupled with a prayer that the petitioner be appointed community administrator of said estate. On the same day three appraisers were appointed by the judge of said court, two of whom, together with the petitioner, filed in the county court an inventory and appraisement of the community property of the petitioner and his deceased wife, and also a list of claims belonging to said estate, all duly verified in accordance with the statutes. The inventory and appraisement listed the tract of land above mentioned as belonging to said community estate. On the same day the petitioner also filed a community administrator's bond and oath, but the bond was in the sum of $750 only, which was the value at which the tract of land above mentioned was appraised. The inventory and appraisement also included personal property appraised at $140, and claims due the estate in the sum of $175. On the same day the county judge, in vacation, made an order which was entered on the minutes of the court reading as follows:

"On this the 18th day of February, A. D. 1907, came on to be considered the report of the inventory, appraisement, and list of claims of the community estate of Jennie Tucker, deceased, and surviving husband, W. D. Tucker, made by J. B. Lucius and J. J. Day, who have heretofore been appointed by the court to appraise said community estate, and, the court having examined the same, it is ordered by the court that said report be, and it is hereby, in all respects approved, and the same, together with this order, is ordered recorded upon the minutes of this court, and the said W. D. Tucker, as the survivor of said community estate, is hereby authorized to control, manage, and dispose of said community estate in accordance with the provisions of the Revised Statutes of this state."

On March 25, 1918, W. D. Tucker, acting for himself and as survivor of the community estate of himself and his deceased wife, Jennie Tucker, executed to J. A. Thurman what is commonly known as an oil and gas lease upon the tract of land above mentioned, the lease being also signed by Mrs. May Tucker, a second wife of W. D. Tucker. The lease stipulated that it was to run for a period of five years from its date and as much longer as either oil or gas shall be produced from the land in paying quantities. The lease recited a cash consideration paid of $905, and contained the further stipulation that, if operations for the drilling of a well were not commenced on the land on or before March 25, 1919, then the lease should terminate, unless the lessee should on or before the date pay or tender to the lessor the sum of $161, which should operate as a rental for 12 months from and after that date and continue the lease in force during that period, and that by the payment of a like sum for each year the lease could be continued in force for the full period of 5 years from its date without the commencement of drilling operations. The lease also bound the lessee to pay certain royalties in the event oil or gas should be found in paying quantities, and it also contained a stipulation making it assignable in whole or in part, and giving the assignee of any particular portion the right to continue the lease in force as to his portion by complying with the terms of the lease so far as applicable to his particular part. Thereafter J. H. Thurman, the original lessee, assigned one-fourth of the lease, and the portion so assigned was again assigned to different persons.

At the time W. D. Tucker executed the lease there were no valid community debts existing against the community estate of himself and his former wife, Jennie Tucker.

At her death Mrs. Jennie Tucker left surviving her six children, namely, Jasper, Lizzie, Eva, Della, Ervin and Ernest. Thereafter Eva married Roy Segrest, and after her marriage departed this life intestate and childless. The rest of the children, joined by Roy Segrest, instituted this suit against W. D. Tucker and the original lessee, J. H. Thurman, and his assignee and subsequent assignees, to cancel the lease executed by W. D. Tucker, mentioned above; the two daughters, Lizzie and Della, being also joined by their respective husbands, and Ernest Tucker, a minor, suing by Jasper Tucker, as next friend.

Upon the trial of the case, before the court without a jury, judgment was rendered denying to the plaintiffs the right to cancel the lease, but awarding to the minor plaintiff a personal judgment against his father, W. D. Tucker, for the sum of $80 as his proportionate part of the rentals collected on the lease. From that judgment all the plaintiffs have prosecuted this appeal.

Upon the trial it was agreed that all the rentals provided for in the lease had been paid in accordance with its terms, and, according to the testimony of W. D. Tucker, Jasper Tucker, one of the plaintiffs, requested him to execute the lease; that he executed it for a fair price paid therefor, and after executing it he divided the proceeds thereof among all the plaintiffs except the minor plaintiff, Ernest Tucker, to whom he is ready to pay over his proportionate part; that he executed the lease in good faith, believing at the time that he had authority to do so, and that his act in so doing was for the best interest of the estate.

The bond filed by W. D. Tucker reads as follows:

"Know all men by these presents that we, W. D. Tucker, as principal, and J. B. Lucius and S. W. Lauderale, as sureties, are held and firmly bound unto the county judge of Stephens county, and his successors in office in the sum of seven hundred and fifty dollars, conditioned that the above bound W. D. Tucker who has been appointed community administrator...