Woodworth v. Rogers, 14088

• Decision Date: 17 April 1963
• Docket Number: No. 14088,14088
• Citation: 367 S.W.2d 412
• Parties: Yrene WOODWORTH, Appellant, v. Carlos G. ROGERS et al., Appellees.
• Court: Texas Court of Appeals

Page 412

367 S.W.2d 412

Yrene WOODWORTH, Appellant, v. Carlos G. ROGERS et al., Appellees.

No. 14088.

Court of Civil Appeals of Texas, San Antonio.

April 17, 1963.

Rehearing Denied May 15, 1963.

Perkins, Floyd, Davis & Oden, Sam H. Burris, Alice, for appellant.

Turpin, Kerr, Smith & Dyer, Midland, Lloyd, Lloyd & Dean, Alice, for appellees.

BARROW, Justice.

This is an appeal from an order sustaining a plea of privilege and transferring the cause from Jim Wells County, where the suit was filed, to Duval County, where the land involved is situated. The question presented is whether the primary cause of action alleged by plaintiff is for specific performance of a contract to require defendants to execute a mineral lease, or is one involving land within the provisions of Subd. 14 of Art. 1995, Vernon's Ann.Civ.Stats. This mandatory exception provides that:

'Lands.--Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.'

Appellant, a resident of Jim Wells County, filed this suit against Carlos G. Rogers and wife, Elvira G. Rogers, William J. Lesko, E. G. Lloyd, Jr., residents of Jim Wells County, Haynes & V. T. Drilling Company, a partnership with one partner a resident of Midland County, Texas, and the other an Indiana resident, and the Corpus Christi State National Bank, a Texas Corporation. All defendants except the Bank filed pleas of privilege asserting that Subd. 14, supra, controlled the venue of the case and that the case should be transferred to Duval County. These pleas were duly controverted by appellant, who contended that is a suit in personam and can be brought in the county of the residence of four of the defendants, under Subds. 4 and 29a of Art. 1995, Vernon's Ann.Civ.Stats.

The venue facts necessary to be proved under Subd. 14 are: (1) that the suit is one for title to real estate or damages thereto, or to remove incumbrances upon the title to land; and (2) that the land involved is situated in Duval County. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69. It was stipulated that the land is in Duval County, so the sole question here is the purpose of the suit. This question is determined by the allegations of the petition. Calvert v. Greene, Tex.Civ.App., 326 S.W.2d 592; Galindo v. Garcia, Tex.Civ.App., 222 S.W.2d 477.

This suit grown out of a transaction on January 11, 1958, between appellant and appellees Carlos and Elvira Rogers. On that date appellant purchased from these appellees an undivided one-fourth royalty interest in the easternmost 128 acres out of the J. Poitevent Survey No. 273, which consists of a total of 640 acres. On that date the east 502 acres of the survey was leased to persons not parties to this suit. As part of the royalty conveyance, Rogers and wife executed an agreement to appellant, which agreement was to remain in force during the term of the royalty conveyance, and provided substantially as follows: As part of the consideration for the royalty conveyance, Rogers and wife agreed that they would not renew the existing mineral lease on the 502 acres, and upon its expiration would lease same to appellant for a primary term of five years at $1.00 per acre, upon the terms of a lease form which was signed by Rogers and wife for identification purposes and attached to the agreement. The concluding paragraph of the agreement provides that:

'It is understood and agreed that this agreement shall constitute a covenant running with the land so long as your royalty conveyance above mentioned remains in force and effect and that this agreement is binding upon the undersigned, their heirs and assigns and shall enure to your benefit and to the benefit of your heirs and assigns.'

This agreement was duly acknowledged and recorded in the Oil Lease Records of the County Clerk of Duval County on January 14, 1958.

Appellant alleged that on February 23, 1962, Rogers and wife secured a release of the mineral lease referred to in the agreement of January 11, 1958, insofar as 200 acres of land out of Survey No. 273 are concerned. In breach of their agreement with appellant, Rogers and wife on March 5, 1962, executed a mineral lease to Lloyd, Trustee, who subsequently assigned it to Haynes, with a 1/16th reservation. Lloyd subsequently assigned helf of his 1/16th reservation 1/32d to the Bank. Appellant alleged that 1/32 to the Bank. Appellant alleged that at all times she was willing to carry out her part of the agreement but that Rogers and wife had not offered the lease to her. Appellant further alleged that all appellees had notice of her...