Walden v. Sanger, No. 10058

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: ARCHER
• Citation: 250 S.W.2d 312
• Parties: WALDEN et al. v. SANGER et al.
• Decision Date: 18 June 1952
• Docket Number: No. 10058

Page 312

250 S.W.2d 312 WALDEN et al.
v.
SANGER et al. No. 10058. Court of Civil Appeals of Texas, Austin. June 18, 1952.
Rehearing Denied July 9, 1952.

Houston McMurry, Henrietta, Richard Dresser, Abilene, for appellants.

W. G. Bedford, Winters, E. B. Underwood, Paul Petty, Ballinger, for appellees.

ARCHER, Chief Justice.

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

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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

No. 5581

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

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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...