West v. Hapgood

• Decision Date: 27 October 1943
• Docket Number: No. 8108.,No. 8107.,8107.,8108.
• Citation: 174 S.W.2d 963
• Parties: WEST et al. v. HAPGOOD et al. SAME v. EDWARDS et al.
• Court: Texas Supreme Court

174 S.W.2d 963

WEST et al. v. HAPGOOD et al.

SAME v. EDWARDS et al.

No. 8107.

No. 8108.

Supreme Court of Texas.

October 27, 1943.

Rehearing Denied November 24, 1943.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Consolidated bills of review by Emma Grant West and others against Leola P. Hapgood and others, and by the same plaintiffs against Bryant Edwards and others to recover mineral interests in certain lands. To review judgments of the Court of Civil Appeals, 169 S.W.2d 204, which affirmed the judgments for defendants, plaintiffs bring error.

Affirmed.

Ben M. Terrell, Thompson, Walker, Smith & Shannon, and Hugh B. Smith, all of Fort Worth, for plaintiffs in error.

Leslie Humphrey and Bullington, Humphrey & Humphrey, all of Wichita Falls, and Vincent Stine and Stine, Bunting & Stine, all of Henrietta, for the Hapgoods.

H. S. Garrett, of Fort Worth, for Texas Co.

Don Emery and Rayburn L. Foster, both of Bartlesville, Okl., and E. H. Foster and Robert B. Burgess, both of Amarillo, for Phillips Petroleum Co.

Otis E. Nelson, of Wichita Falls, for R. C. Lipscomb.

Joe B. Hatchitt, of Wichita Falls, for Dillard & Norwood et al.

Homer B. Latham, of Bowie, for Grimes.

Clyde Suddath, of Henrietta, for Jordan & Ferguson.

Robert B. Thrasher, of Austin, Leslie Neill, of Tyler, and David W. Stephens, W. E. Allen, and P. O. Settle, all of Fort Worth, for Gulf Oil Corporation.

SMEDLEY, Commissioner.

These two cases, although separately filed and docketed in the trial court and in both appellate courts, were tried together and were submitted together on appeal with one statement of facts. The controlling facts and questions of law in the two cases are the same. Accordingly, here, as in the Court of Civil Appeals, one opinion is written and the cases are treated herein as if they were one case.

Petitioners sued respondents for the title and possession of the oil, gas and other minerals in thirty-three tracts of land, being blocks of the Marion County school land in Clay County, and containing in all about 5280 acres. After the return of a verdict favorable to respondents, the trial court rendered judgments that petitioners take nothing and the judgments were affirmed by the Court of Civil Appeals, Chief Justice McDonald dissenting. 169 S.W.2d 204, 214.

Although a number of questions were presented in the Court of Civil Appeals, its judgments affirming those of the trial court were based solely upon its conclusions that respondents and their predecessors had acquired title to the minerals in the land under the two twenty-five years statutes of limitation. Article 5519, Revised Civil Statutes of 1925, as amended by Chapter 250, Acts Regular Session, 40th Legislature, page 369; Chapter 30, Acts 5th Called Session, 41st Legislature, as amended by Chapter 169, Acts Regular Session, 42nd Legislature, page 288, Article 5519a, Vernon's Annotated Civil Statutes.

Prior to September 11, 1882, the legal title to the lands in controversy was in Conrad N. Jordan and Yates Ferguson, both of New York, to whom they had been conveyed as trustees for the beneficial owners, a partnership known as Consolidated Copper Syndicate, of which Jordan and Ferguson and six others, all of the state of New York, were members. Respondents contend that the titles to some of the tracts of land in controversy are shown by the record to have been held by Jordan and Ferguson individually rather than as trustees, but in view of the conclusions we have reached it may be assumed that the beneficial title to all of the tracts was in the syndicate. Ferguson and Jordan, trustees, were authorized by the partnership agreement to take, hold and dispose of all of the property acquired by the syndicate.

By deed dated September 11, 1882, and acknowledged on the same day in New York City and filed for record in Clay County on September 19, 1882, Jordan and Ferguson, as trustees, conveyed to W. B. Worsham of Clay County thirty-eight blocks of the Marion County school land, including the thirty-three blocks involved in this suit, for a cash consideration of $3,010.42. The deed contains the following clause: "Reserving and excepting, nevertheless, to ourselves, our successors and assigns, all mines, minerals and mineral rights upon or in said lands, together with the right to prospect for and work the same."

On September 18, 1882, F. W. Randall, as attorney in fact for C. N. Jordan and Yates Ferguson, trustees, executed and acknowledged an instrument which makes reference to the deed made by Jordan and Ferguson on September 11, 1882, and the reservation of the minerals contained therein, and releases "all of said reservation made in said deed". This instrument was filed for record in Clay County on September 20, 1882. The Court of Civil Appeals did not decide whether or not the instrument last referred to was effective to convey to W. B. Worsham the minerals that were reserved in the deed of date September 11, 1882, from Jordan and Ferguson. It held that respondents, who hold under Worsham, have good title to the minerals in virtue of Article 5519, because Worsham took possession of the land under the deed, which conveyed the surface, and under the release, which purported to convey the minerals, and he and his successors in title had thereunder peaceable and adverse possession for more than twenty-five years prior to the filing of the suits. It held further that respondents "should recover under the provisions of Article 5519a".

As is pointed out by Chief Justice McDonald in his dissenting opinion, the undisputed evidence shows that no oil, gas or other minerals have been produced from the land in controversy herein and no mining or drilling operations for oil, gas or other minerals have ever been conducted thereon. The reservation in the deed from Jordan and Ferguson was sufficient to sever the minerals from the surface, and if the release executed by Randall did not reunite the surface estate and the mineral estate, the possession of the surface by W. B. Worsham and his successors in title was not possession of the minerals. Elliott v. Nelson, 113 Tex. 62, 251 S.W. 501; Rio Bravo Oil Co. v. McEntire, 128 Tex. 124, 95 S.W.2d 381, 96 S.W.2d 1110; Luse v. Parmer, Tex.Civ.App., 221 S.W. 1031; Wallace v. Hoyte, Tex.Civ.App., 225 S.W. 425; Henderson v. Chesley, Tex.Civ.App., 229 S.W. 573. In each of the three cases last cited application for writ of error was refused.

One of the requirements of Article 5519 is that possession of the real estate be had under a recorded deed purporting to convey the same. Free v. Owen, 131 Tex. 281, 113 S.W.2d 1221; Davenport v. Bass, 137 Tex. 248, 153 S.W.2d 471; Pinchback v. Hockless, 138 Tex. 306, 158 S.W.2d 997. W. B. Worsham and his successors in title claimed under the release of the mineral reservation executed by Randall, as well as under the deed from Jordan and Ferguson, but they could not avail themselves of the release as a means of acquiring a limitation title under Article 5519 unless they had possession of the real estate that the release purported to convey, that is, the minerals in the land.

Respondents contend, in support of the second ruling made by the Court of Civil Appeals, that even though they may not have shown possession of the minerals sufficient to meet the requirements of Article 5519, they have proven all of the facts required by the second of the two twenty-five years statutes of limitation (Article 5519a, Vernon's Annotated Civil Statutes), including the exercising by them of "dominion" over both the minerals and the surface for more than twenty-five years.

We do not express an opinion as to this contention because we have reached the conclusion, after careful examination of the record and the briefs, that the trial court, on another ground, should have instructed a verdict for respondents.

Respondents claim title to the land, including the minerals, under the deed dated September 11, 1882, executed by Jordan and Ferguson and under the release of the mineral reservation executed by F. W. Randall as attorney in fact for Jordan and Ferguson on September 18, 1882. Petitioners take the position that Randall had no authority to execute the release of the mineral reservation and that the beneficial title to the minerals remained in those who composed the partnership, Consolidated Copper Syndicate. They claim title to the minerals in the land in controversy through W. B. Brush, to whom George P. Warner, receiver of the Consolidated Copper Syndicate, on December 14, 1905, with the approval of the district court of Travis County, sold all of the lands of the syndicate then remaining unconveyed, for a consideration of $100.

The copy from the records of the release of the mineral reservation, executed September 18, 1882, and recorded two days thereafter in the deed records of Clay County, was admissible in evidence as an ancient instrument without proof of its execution, the record of the instrument properly registered for nearly sixty years possessing at least as high a degree of authenticity as an original deed offered as an ancient document at common law. Emory v. Bailey, 111 Tex. 337, 343-345, 234 S.W. 660, 18 A.L.R. 901. The instrument contains the recital that it is executed under power of attorney from C. N. Jordan and Yates Ferguson, trustees. It is signed "C. N. Jordan, Yates Ferguson, by their Att'y. in Fact, F. W. Randall", and the notary's certificate states that Randall acknowledged that he executed the instrument in the capacity therein stated. From the recital in this ancient instrument, the existence of the power under which the grantor assumed to act will be presumed. Watrous v. McGrew, 16 Tex. 506, 513, 514; Johnson's Adm'r v. Timmons, 50 Tex. 521, 534-537; Garner v. Lasker, 71 Tex. 431, 435-437, 9 S.W. 332; Harrison v. McMurray, 71 Tex. 122, 129, 130, 8 S.W. 612; Stooksbury v. Swan, 85 Tex. 563, 574, 22 S.W. 963; Brown v. Orange County, Tex.Civ.App., 88...