Walden v. Sanger
| Decision Date | 18 June 1952 |
| Docket Number | No. 10058,10058 |
| Citation | 250 S.W.2d 312 |
| Parties | WALDEN et al. v. SANGER et al. |
| Court | Texas Court of Appeals |
Houston McMurry, Henrietta, Richard Dresser, Abilene, for appellants.
W. G. Bedford, Winters, E. B. Underwood, Paul Petty, Ballinger, for appellees.
This appeal is before this Court on one controlling question involving the propriety of the trial court in overruling appellants' Motion for a New Trial.
A suit was instituted by appellees Joseph Sanger et al., in trespass to try title to 297 1/4 acres of land in Runnels County, Texas in the Northeast part of the T. J. Hardeman Survey No. 267 against R. Q. Adams and his unknown heirs, Lucy Adams, a widow, of Hughson, California, Wylie Walden, whose address was unknown, and the unknown heirs at Wylie Walden, deceased, and all persons claiming any title under R. Q. Adams and Wylie Walden under any deed or deeds.
Affidavit for citation by publication was made and citation by publication was had, and returns made thereon.
Lucy Adams was served in person in the State of California. An attorney was appointed to represent the defendants cited by publication, and an answer was filed.
Trial was had, evidence heard and statement of facts made and filed, and on December 27, 1948, judgment was entered by the court in favor of the plaintiffs.
On October 25, 1950, Lucy Adams, a widow, joined by three daughters, Lindsay Pratt Walden and a number of others named, who are alleged to be the children, widow and grandchildren of Wylie Walden, brought a suit against Joseph Sanger and H. K. Dunn in trespass to try title in and to 1/32nd interest in all of the oil, gas and other minerals in 640 acres out of the T. J. Hardeman Survey in Runnels County, Texas, and known as Block One (1) to Sixty-eight (68) except Block 24, according to a subdivision of 800 acres in said survey, and as a motion for new trial filed within two years after the judgment was entered, and to set such judgment aside, said petition being sworn to by Richard Dresser.
Joseph Sanger and others named filed an answer on the 17th of November, 1950, pleading misjoinder of parties, motion to dismiss, special exceptions directed at certain named parts of the pleading, a general denial, and the judgment sought to be set aside was a legal and proper one.
Another answer was filed setting up the statute of limitation for three, five, ten and twenty-five years, and by cross action sought recovery of the title and possession of the land and premises.
On June 16, 1951, the plaintiffs filed their First Amended Original Petition for Review of Judgment, or Motion to set aside the judgment entered in the original suit on December 27, 1948, and made additional and new parties defendants and sought to set the judgment aside alleging several grounds and that plaintiffs had a good and meritorious defense, and prayed for judgment for the title and possession of all the oil, gas and other minerals, etc., and in reply to cross action by defendants, filed a plea of not guilty.
The defendants filed an answer in cross action for the title to the property, misjoinder of parties and for a dismissal of the cause, and directed a number of special exceptions to the pleadings, a general denial, not guilty, pleas of limitation for three, five, ten and twenty-five years.
On the 11th of September, 1951, the attorneys of record for the respective parties, plaintiffs and defendants, entered into the following agreement, which was approved by the court:
'Agreement to Compromise
'Amos Walden et al.
In the District Court of Runnels County, Texas
VS
Joseph Sanger et al.
'To Said Honorable Court:
'All of the parties to the above styled and numbered cause, acting herein by and through their respective attorneys of record, show the court that they have agreed to compromise and settle all matters in controversy in said cause on the following terms and provisions, to-wit:
'(1) The plaintiffs (in the aggregate) who are named as plaintiffs in the Plaintiffs' First Amended Original Petition filed herein on the 16th day of June, 1951, represented herein by their attorneys Richard Dresser and E. C. Grindstaff, shall be adjudged to have title to an undivided Eighty (80) mineral acres out of the following described lands, to-wit:
'Being 650 acres of land in Runnels County, Texas, out of that certain 800 acres of land in Northeast corner of the T. J. Hardeman Survey No. 267, Abstract No. 234, which said 800 acres of land is described in a deed from J. G. Towns to Lee Seals, dated May 5th, 1917, and recorded in Vol. 98, Page 300 of the Deed Records of Runnels County, Texas, and which said 650 acres of land comprises all of said 800 acres except a strip of 150 acres described in a royalty deed from Lee Seals to D. M. Hillyard and C. Kornegay, dated January 27, 1919 and recorded in Vol. 105, Page 595 of the Deed Records of Runnels County, Texas;
'(2) That title to all of the remainder of said 650 acre tract of land, and all of the remainder of the oil, gas and other minerals in and under said 650 acre tract of land, shall be divested out of said plaintiffs and be vested in Joseph Sanger, H. K. Dunn, Laura Pearl Wright, and their assigns.
'(3) That both of the following described purported royalty deeds shall be cancelled and held for naught, to-wit:
'(a) From Lee Seals to R. Q. Adams, dated February 14th, 1922, and recorded in Volume 116, page 382, of the Deed Records of Runnels County, Texas; and (b) from Lee Seals to Wylie Walden, dated May 8th, 1922, and recorded in Volume 117, page 195 of the Deed Records of Runnels County, Texas.
'(4) That of said 650 acre tract of land Joseph Sanger and H. K. Dunn and their assigns are the owners of the surface and a portion of the minerals in 267 1/4 acres, being all of the land owned by them in said 800 acre tract outside of said 150 acre strip described above; and Laura Pearl Wright and husband, D. B. Wright, and their assigns are the owners of the surface and a portion of the minerals in 382 3/4 acres, said 382 3/4 acres being all of the land owned by them outside of said 150 acre strip described above.
'(5) That as to said 267 1/4 acre tract said Joseph Sanger and H. K. Dunn and their assigns have and shall have the sole and exclusive right to make and enter into all oil, gas and mineral leases, and plaintiffs shall never have any right to join the making and entering into such leases, but plaintiffs shall receive from any such leases the bonus, delay rentals and royalties due on an undivided 32.80 mineral acres out of said 267 1/4 acre tract, which shall be paid to plaintiffs direct by the Lessee or to plaintiffs' credit in a designated depository bank.
'(6) That as to said 382 3/4 acre tract, Laura Pearl Wright and husband, D. B. Wright, and their assigns, shall have the exclusive right to make and enter into all oil, gas and mineral leases and plaintiffs shall never have any right to join in the making and entering into such leases, but plaintiffs shall receive from any such leases the bonus, delay rentals and royalties due on an undivided 47.20 mineral acres out of said 382 3/4 acre tract, which shall be paid to plaintiffs direct by the Lessee or shall be deposited in a designated depository bank.
'(7) Plaintiffs shall not have any right, title and interest in and to said 150 acre strip of land described in paragraph (1) hereof, but so far as plaintiffs are concerned title thereto shall be vested in said Sanger and Dunn and their assigns and in said Laura Pearl Wright and D. B. Wright and their assigns, according to their respective present ownerships as evidenced by deeds of record in Runnels County, Texas.
'(8) Plaintiffs shall furnish proofs of heirship and other competent evidence that they are the sole owners of the estates of Wylie Walden, deceased, and R. Q. Adams, deceased, and they record such proof of heirship in the Deed Records of Runnels County, Texas.
'(9) Costs shall be adjudged against Joseph Sanger and H. K. Dunn, and Laura Pearl Wright and D. B. Wright in an amount not to exceed $95.00.
'The Court shall render judgment on or before September 28, 1951, on this agreement.
'Witness our hands this 11th day of September, 1951.
/s/ Richard Dresser
'Richard Dresser
/s/ E. C. Grindstaff
'E. C. Grindstaff
Attorneys for all Plaintiffs
/s/ Paul Petty
'Paul Petty
/s/ E. B. Underwood
'E. B. Underwood, for Bedford...
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