Woldert v. Skelly Oil Co.

• Decision Date: 23 April 1947
• Docket Number: No. 6255.,6255.
• Parties: WOLDERT et al. v. SKELLY OIL CO. et al.
• Court: Texas Court of Appeals

202 S.W.2d 706

WOLDERT et al. v. SKELLY OIL CO. et al.

No. 6255.

Court of Civil Appeals of Texas. Texarkana.

April 23, 1947.

Rehearing Denied May 22, 1947.

Appeal from District Court, Smith County; Nat. W. Brooks, Judge.

Suit in trespass to try title by William A. Woldert, Jr., and others against the Skelly Oil Company and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

James & Lee, Troy Smith and Terry Graham, all of Tyler, and Paul W. Jeffrey and Erwin G. Thompson, both of Houston, for appellants.

Ramey, Calhoun, Marsh, Brelsford & Sheehy, of Tyler, Thompson, Knight, Harris, Wright & Weisberg, of Dallas, Roy Butler, of Tyler, and W. P. Z. German and James Merberry, both of Tulsa, for appellees.

HARVEY, Justice.

Wm. A. Woldert, Jr., and others, filed suit in trespass to try title to 265.3 acres of the Daniel Minor Survey in Smith County, Texas, against Skelly Oil Company, and others, which was tried to the court without a jury. Judgment was rendered that the plaintiffs take nothing by reason of their suit, and they have perfected this appeal.

The record title upon which plaintiffs based their claim to the land sued for began with (1) a Patent from the State of Texas to Daniel Minor, August 27, 1861, issued under Certificate No. 446 for one-third league of land in Smith County; (2) a transfer of this certificate by Minor to A. H. Scott, May 17, 1837; (3) deed from A. H. Scott to Niles F. Smith, October 2, 1837; (4) deed from Niles F. Smith to Niles H. Smith, October 10, 1856, which conveyed several tracts of land and a number of land certificates therein described, but none relating to the Daniel Minor Survey (this deed contained a general clause which transferred to Niles H. Smith all property that might thereafter be discovered to belong to the grantor, and all that might fall to him by will, gift, devise, or descent, in any part of the United States); (5) a power of attorney by Niles H. Smith to W. R. Lenard, January 3, 1874, authorizing him to enter upon and hold all land he found that belonged to N. H. Smith, and empowering him to sell and convey such lands, and in the power of attorney conveyed to Lenard a one-half interest in lands that he should recover from "legal difficulties"; (6) Lenard, for himself and as attorney for Smith, by deed of May 5, 1902, deeded to B. F. McDonough an undivided 1/6 interest in the Minor Survey of 1,476 acres out of the northeast corner of the survey (this deed recited that it was a deed of substitution for one made in 1874); (7) a power of attorney from B. F. and A. T. McDonough, recited to be the only surviving heirs of Benjamin F. McDonough and wife, to J. A. Oliphant, June 7, 1892, empowering him to take possession of 246 acres in the northeast corner of the Minor Survey, and conveying him a one-half interest therein for his services. Subsequently, Oliphant's interest passed to Will A. Woldert, whose heirs at law together with those of B. F. and A. T. McDonough were plaintiffs in this case.

Appellants assign error to the action of the trial court in holding that they failed to establish record title in themselves. Some of the facts upon which that holding was based will be mentioned briefly. Land Certificate No. 446 in the name of Daniel Minor, hereinabove listed, was conveyed by Niles F. Smith on September 24, 1851, to H. W. Carter. The instrument of conveyance was recorded in Panola County but not in Smith County, and recited that the certificate was held in trust for Carter. At this point we digress a bit to observe that the original record of this instrument in Panola County was admitted in evidence on the trial, without objection on the part of plaintiffs, under a stipulation by the parties that either party might read from original records of any county in the State of Texas. Therefore, the admission of a certified copy of the instrument recorded in Panola County over the objection of plaintiffs was harmless, even if it be granted that it was not admissible upon any theory. After the conveyance to Carter, a judgment was entered December 21, 1855, in the district court of Panola County in favor of H. W. Carter against one James Heffner for the recovery of the Daniel Minor Certificate and Heffner was directed to deliver it to Moore, the attorney for Carter. A notation on the judgment records shows an acknowledgment by Moore of the receipt of this certificate as of January 17, 1856. The Daniel Minor Certificate No. 446 is a basic link in the title of appellants. Under the facts outlined, it is conclusively established as found by the trial court that at the time Niles F. Smith made the deed to his son, Niles H. Smith, on October 10, 1856, he did not own or claim to own such certificate. Nowhere in the record is there anything to indicate that the certificate or any rights under it were acquired by Smith or his assigns. The court correctly held under the facts developed that no presumption of a deed into the Smiths or into any one acting for them should be indulged. No acts of dominion were shown, and no records introduced, other than deed recitations to be hereinafter mentioned, with reference to the land in controversy by appellants from 1875 to 1913, the date when W. A. Woldert filed for record the so-called substitute deed of 1902, which in turn was based on a deed said to have been made in 1874 by Lenard to McDonough. True, Woldert had paid taxes on a tract of 246 acres of the Minor Survey, not identified, for the years 1903 to 1911, and from 1913 to 1916. On the other hand, the appellees and their predecessors in title paid taxes on the land during different periods, and from 1913 to the date of the suit. In various ways, such as fencing the land, pasturing and cultivating some of it, and the recordation of deed, appellees exercised dominion over and asserted claim to it.

Appellants urge that appellees are estopped to deny their title by reason of the decision and judgment in the case of Thompson v. Swann, Tex.Civ.App., 35 S.W. 828. In that case the title to the Minor Survey down to and including Niles H. Smith was involved. The court merely held that the deed from Niles F. to Niles H. Smith, with other evidence in the record, was sufficient to convey all the property owned by the grantor at the time of the execution of the deed, and to show a prima facie title to the land in dispute in the plaintiffs, subject to rebuttal. The case was reversed and remanded on the insufficiency of the evidence to rebut the prima facie case made out by the plaintiffs. Nothing was decided therein upon which to base an estoppel. Upon re-trial in the district court, judgment was entered for the plaintiffs and no appeal was taken. The court papers having been lost, the record is silent as to what the grounds of recovery were in the second trial. A different part of the Minor Survey was in litigation and some different basis of recovery under amended pleadings, as of limitation, might have been shown. In addition, the trial judge found that the parties in the Thompson v. Swann case were different to those in the instant suit; that the William H. Carter mentioned in the transcript was not the same party as Hamilton W. Carter, to whom the Minor certificate had been conveyed by N. F. Smith in 1851, and was in no way connected with him. It is quite elementary...