Watkins v. Certain-Teed Products Corp.

• Decision Date: 24 April 1950
• Docket Number: CERTAIN-TEED
• Citation: 231 S.W.2d 981
• Parties: WATKINS et al. v
• Court: Texas Court of Appeals

Page 981

231 S.W.2d 981

WATKINS et al. v. CERTAIN-TEED

April 24, 1950.

No. 6047.

Court of Civil Appeals of Texas, Amarillo.

April 24, 1950.

Rehearing Denied May 22, 1950.

C. M. Means, D. A. Frank, and Vickrey & Rhea, all of Dallas, for appellants.

H. J. Patterson, Cecil C. Cammack and W. B. Weaver, all of Fort Worth, J. O. Smith and O. L. Bell, Quanah, for appellees.

PITTS, Chief Justice.

This is a suit in trespass to try title. Appellees, Certain-Teed Products Corporation and Cities Service Oil Company, a corporation, filed suit on April 4, 1949, against appellants, Elven W. Watkins and his sister, Vivian Watkins Bethel, joined by her husband, Don Bethel, alleging ownership by the first named appellee of the oil, gas and other minerals in fee in, on and under certain described lands located in Hardeman County, Texas, and alleging ownership by the last named appellee of oil, gas and other mineral leasehold estate in the same land. Appellants answered with a plea of 'not guilty' and further pleaded the five and ten year statutes of limitation. The case was tried to a jury. At the close of the evidence both parties moved for an instructed verdict. The trial court overruled appellants' motion and peremptorily instructed the jury to return a verdict for appellees. In accordance with the instructions given the jury returned such a verdict and judgment was accordingly rendered, from which an appeal has been perfected to this court.

Appellants complain in their points of error because the trial court instructed a verdict for appellees and refused to instruct a verdict for them; they further complain because the trial court refused to submit the issues of five and ten year statutes of limitation, Vernon's Ann.Civ.St. arts. 5509, 5510, if they were not entitled to a peremptory instruction in their favor; and they further complain about the form of the judgment rendered.

By stipulation of the parties it was agreed 'that the lands involved in this suit have been patented out of the State of Texas'. In order to establish a common source of title under which appellees and appellants were both claiming, appellees tendered as evidence exhibits showing a claim of title to the oil, gas and other minerals in question from John R. Good and wife, Josephine Good, to themselves and the surface estate out of the same source to appellants. In an effort to rebut appellees' claims appellants offered four of the same exhibits previously tendered by appellees, together with oral testimony.

The exhibits tendered by appellees to establish a common source of title were as follows:

(1) A deed of date August 20, 1903, from John R. Good and wife, Josephine Good, to Sam Lazarus, conveying 'all of the gypsum, gypsum plaster and gypsum stone and all other minerals of any kind whatsoever, situated on or in Sections 144 and 145, Block H. W. & N. W. Ry. Co. Surveys', the lands here in question. Certain privileges were therein granted Sam Lazarus by the grantors in the said deed which also contained the clause 'To have and to hold all and singular the said mineral rights and other specified privileges unto the said Sam Lazarus, his heirs and assigns forever.' The said deed was recorded in Volume 20, Page 539 of the Deed Records of Hardeman County, Texas.

(2) A quitclaim deed of date June 22, 1910, from Sam Lazarus and wife, Lillie N. Lazarus, to Acme Cement Plaster Company, conveying all right, title and interest in the lands in question and expressly providing that it was the intention of the grantors to convey all of their interest which had been conveyed to Sam Lazarus by the deed of John R. Good and wife, Josephine Good, heretofore referred to in exhibit 1.

(3) A quitclaim deed of date April 27, 1923, from Acme Cement Plaster Company to appellee, Certain-Teed Products Corporation, conveying all of the mineral to the lands in question and all of the rights and privileges conveyed to Sam Lazarus by the deed from John R. Good and wife, Josephine Good, referred to in exhibit 1.

(4) All of the probate proceedings in the estate of Josephine Good who died on January 22, 1913, and left a will, in which she gave all of her property and interest therein of every kind and character to her husband, John R. Good. Title to such was vested in him.

(5) A warranty deed of date August 27, 1917, by Sidney Good (a bachelor) conveying to his father, John R. Good, any and all interest grantor may have in the lands in question for a consideration of $1.00.

(6) A warranty deed of date August 11, 1927, from John R. Good and wife, Rosa Kyle Good, to C. T. Watkins, conveying the lands in question together with other lands, the conveyance being made 'expressly subject to a certain mineral deed executed by John R. Good and wife, Josephine Good, on August 20, 1903, to Sam Lazarus, recorded in Volume 20, page 539, of the Deed Records of Hardeman County, Texas, by which deed all minerals located on, in or under said Sections Nos. 144 and 145 (the lands in question here) were conveyed to said Sam Lazarus.'

(7) A warranty deed of date December 15, 1941, from C. T. Watkins and wife, Ella L. Watkins, to their children (appellants here), Elven W. Watkins and Vivian Watkins Evans (who was Vivian Watkins Bethel, wife of Don Bethel, at the time of the trial of this suit) conveying the lands in question for a consideration of the sum of $10.00 and the further consideration of love and affection. This deed makes reference to the deed of date August 11, 1927, from John R. Good and wife, Rosa Kyle Good, to grantor in this deed, C. T. Watkins, and thereafter contains the following recital: 'Reference is here made to the deeds above set out for a complete description of the lands conveyed hereby and this conveyance is made subject to the terms and conditions contained in said deeds where such terms and conditions still apply to and effect said lands, or any part thereof.'

This deed by the use of such restrictive language conveys to appellants the lands in controversy here subject to the terms of the mineral conveyance by deed of date August 20, 1903, from John R. Good and wife, Josephine Good, to Sam Lazarus.

(8) An oil, gas and mineral lease of date March 18, 1948, from appellee Certain-Teed Products Corporation, to appellee Cities Service Oil Company, conveying the oil, gas and other minerals in and under the lands in question.

By and through exhibits 1, 2, 3, 4, 5 and 8 appellants have shown a complete chain of title out of John R. Good and wife, Josephine Good, into themselves of the mineral estate claimed. Through some of the said exhibits, together with exhibits 6 and 7, appellees have likewise shown a chain of title to the surface estate into appellants out of John R. Good and wife, Josephine Good. Appellees have thus shown the common source by showing the chain of title, including the death of Josephine Good, the probate proceedings controlling her estate, in which it was affirmatively shown that all of her right, title and interest in the property here involved came into her husband, John R. Good, who, joined by his second wife, Rosa Kyle Good, conveyed the land to C. T. Watkins who conveyed it to appellants.

By introducing appellees' exhibits 4, 5, 6 and 7 appellants have supported the establishment of a common source of title under which both appellees and appellants are claiming. The chain of title conclusively establishes appellees' claim of the mineral estate through Sam Lazarus, to whom such was conveyed by John R. Good and wife, Josephine Good, on August 20, 1903. Appellants' claims are based principally on exhibit 6 which conveys the lands in question to appellants' predecessor, C. T. Watkins, 'subject to' the mineral deed executed by John R. Good and wife, Josephine Good, on August 20, 1903, which means the land was conveyed by grantors without the mineral right, which had been previously conveyed by them to Sam Lazarus. By the chain of title proven, appellees have conclusively established their claim of the mineral estate here in controversy and they have likewise established the fact that appellants have no legal right to claim any interest in the said mineral estate. The latter fact has been likewise established by the exhibits introduced by appellants themselves. Certainly appellees (plaintiffs) have established a superior title to that claimed by appellants (defendants). In the case of Young v. Trahan, 43 Tex.Civ.App. 611, 97 S.W. 147, writ refused, the court held that where, in trespass to try title, plaintiff proved superior title to defendant under a common source, it was not necessary to prove a regular chain of title from the state. Such a rule is recognized in the case of Spencer v. Levy, Tex.Civ.App., 173 S.W. 550, writ refused, and by 41 Tex.Jur. 509. The court held in the case of Gordon v. Hall, 29 Tex.Civ.App. 230, 69 S.W. 219, that where in trespass to try title plaintiff proves a common source of title and a superior title to himself, deraigned therefrom, it devolves on defendant to meet the prima facie case thus made by proving title in himself deraigned from a title superior to the common source. Such a rule is announced with approval in the case...