Williams v. Pure Oil Co.

• Citation: 78 S.W.2d 929
• Decision Date: 23 January 1935
• Docket Number: No. 1813-6293.,1813-6293.
• Parties: WILLIAMS et al. v. PURE OIL CO. et al.
• Court: Supreme Court of Texas

Page 929

78 S.W.2d 929

WILLIAMS et al. v. PURE OIL CO. et al.

No. 1813-6293.

Commission of Appeals of Texas, Section A.

January 23, 1935.

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

Suit by Mackie Williams and husband against the Pure Oil Company and others. Judgment for defendants was affirmed by the Court of Civil Appeals [49 S.W.(2d) 846], and plaintiffs bring error.

Affirmed.

Jerome P. Kearby, of Tyler, and Jed C. Adams and W. B. Harrell, both of Dallas, for plaintiffs in error.

Vinson, Elkins, Sweeton & Weems, Clyde A. Sweeton, and David T. Searls, all of Houston, R. G. Storey, of Dallas, and Wynne & Wynne, of Wills Point, for defendants in error.

CRITZ, Commissioner.

The opinion of the Court of Civil Appeals makes a correct and very comprehensive statement of the facts and issues of this case. In the interest of brevity, we refer to and adopt that statement. 49 S.W.(2d) 846, 847. We, however, will here make a sufficient statement to render this opinion complete within itself.

It appears from the record before us that the 132.8 acres of land here involved are located in Van Zandt county, Tex., and originally constituted a part of the lands patented to Nacogdoches county, Tex., for public school purposes. On February 9, 1880, the commissioners' court of Nacogdoches county, Tex., duly passed and entered on its minutes the following order: "It is ordered by the Court that R. H. Irion be and he is hereby appointed attorney in fact for Nacogdoches County to generally control, bargain, sell and convey and execute and deliver in the name of said County, deeds to and receive the purchase money for any and all purchase of any part of the four (4) leagues of land patented to said County for educational purposes, and situated in the Counties of Henderson, Van Zandt, Upshur and Trinity, provided all sales of said land shall be made in accordance with the terms of contract made with said Irion, at February term of this court, hereby ratifying all acts done by said Irion as attorney in fact as aforesaid, as if done in proper person present by this Court; and it is further ordered by the Court that the County Clerk of said County be and he is hereby ordered to furnish said Irion with a certified copy of this order under his hand and the seal of the County Court in lieu of the Seal of the Commissioners Court, this Court having no regular seal of its own."

Purporting to act under the above order, R. H. Irion, the attorney in fact named therein, conveyed to D. D. Lybrand in the name of the county the 132.8 acres of land here involved for a consideration of $88.53 1/3 paid cash and two promissory notes for $88.53 1/3 each, executed by Lybrand and payable to Nacogdoches county, and due January 1, 1881 and 1882, respectively. This deed was dated February 11, 1880, was filed for record January 9, 1883, and is recorded in Deed Records of Van Zandt county, Tex., vol. 27, p. 621. The deed retained the vendor's lien to secure the payment of the two notes. D. D. Lybrand, the grantee named above, is the common source of title.

It appears further that this land was the community property of D. D. Lybrand and his wife. They both died prior to January 14, 1889, leaving surviving them ten children, all of whom attained their majority.

On January 14, 1889, all of the Lybrand children were living, except a daughter, Laura Lybrand Ames, wife of A. A. Ames, who was then dead. Laura Ames left as her heirs at law an infant daughter, Mackie Ames, and A. A. Ames, surviving husband of Laura Ames.

On January 14, 1889, seven of the Lybrand children conveyed their undivided one-tenth interest each in this land to their brother W. B. Lybrand. After the delivery of this deed, this land belonged eight-tenths to W. B. Lybrand, one-tenth to another heir, J. M. Lybrand, and one-tenth to Mackie Ames, surviving child of Laura Ames, but the one-tenth interest of Mackie Ames was burdened with the life estate of A. A. Ames in a part thereof.

On December 1, 1894, W. B. Lybrand and J. M. Lybrand conveyed this land in its entirety to W. T. Jarman. The consideration recited was $1,200. No mention was made of the interest of Mackie Ames, and Jarman intended to purchase the entire tract.

It appears that, as soon as Jarman purchased this land, he moved thereon with his family and fenced the same, and he and those holding under him have lived thereon and had possession thereof in such a manner as to perfect title under the five and ten years' statutes of limitation, if such statutes apply in this case, as will be more fully explained later on.

It further appears that A. A. Ames has conveyed his life estate in this land to his daughter, Mrs. Mackie Williams, who is the plaintiff in this suit.

We here quote the following findings of the Court of Civil Appeals:

"The undisputed evidence is that these notes were paid and that Nacogdoches county received in money, for educational purposes, the entire consideration for the land. The minutes of the commissioners' court of Nacogdoches county do not show any report of this sale to the court, or any formal order approving it. However, on August 8, 1927, the commissioners' court executed a special warranty deed for the recited consideration of $1 to `D. D. Lybrand and all those persons, firms or corporations, holding title under him, his heirs and assigns, of the right, title and interest now or heretofore owned by said Nacogdoches County in and to all that certain lot, tract or parcel of land lying and being situated in the County of Van Zandt, State of Texas.' Then follows a description of the land in question, and the further recitation:

"`The above described land having heretofore been conveyed by R. H. Irion, attorney in fact for Nacogdoches County, Texas, to D. D. Lybrand by deed dated Jan. 14th, 1880, recorded in Vol. 27, p. 621, of the deed records of Van Zandt County, Texas, under a power of attorney from Nacogdoches County, Texas, as shown in Book E, pages 427 and 428 Minutes of the Commissioners Court of Nacogdoches County, Texas and in said deed a vendor's lien was retained to secure the payment of two certain promissory notes for the sum of Eighty-eight and 53/100 Dollars each, dated January 14th, 1880, due respectively January 1st, 1881 and January 1st, 1882, with interest at the rate of ten per cent. per annum until paid, and Whereas the said vendor's lien notes as aforesaid described in said deed have...