129 S.W.2d 267 | Tex. | 1939
The opinion of the Court of Civil Appeals in this case makes a complete and fair statement of facts and law questions involved. We adopt and approve such opinion as in all respects correct. It is reported at
1 As shown by the opinion of the Court of Civil Appeals and the record in this case, H. P. Allison et al., acting as agents of the State, and by authority of what is generally known as the "Relinquishment Act," Article 5367 et seq., R. C. S. 1925, executed and delivered to certain parties two oil and gas leases. The bonus of $5760.00 named in each of said leases was paid in cash by the lessees to the lessors at the very time the leases were delivered. Such lessors never paid any part of said bonuses to the State. Under the holdings of this Court in Green v. Robison,
2 The facts of this case bring it directly under the rules of law announced in Shell Petroleum Corp. v. Tippett (Tex. Civ. App., writ refused),
These leases are in legal effect the same as the leases in the Tippett case, supra, except these leases each contain the following clause:
"All bonuses and royalties which may be required to be paid to the State of Texas under this lease on said land, shall be deducted by the lessee from the amount thereof herein contracted to be paid lessor."
Counsel for lessors, who are plaintiffs in error here, contend that the above-quoted provision contained in these leases has effect to make the rules of law announced in the Tippett case, supra, inapplicable to this case. To our minds, the above-quoted provision can be given no such effect. An examination of these leases, and of this record, shows that the only bonuses involved in the two transactions were the cash bonuses provided in the leases, and paid at the very time they were delivered. The clause under discussion, in effect, expressly allowed the lessee to deduct from such bonuses any amount thereof "which may be required to be paid to the State of Texas, * * *" The very language itself plainly demonstrates the contractual purpose or intent to place the primary or ultimate liability on the lessor for the amount of such bonuses that might be required to be paid to the State. It is true that the lessees made no deductions from the bonuses at the time the leases were delivered. The reason for this was that it was not then known what such deductions ought to be, or whether or not there should be any.
The judgment of the Court of Civil Appeals is affirmed.
Opinion delivered June 14, 1939.
H. P. Allison and wife in 1927 owned 2560 acres of land in Terrell County, which had been classified when sold by the State as mineral lands. H. L. Merck likewise owned 2560 acres located in the same county similarly classified. In that year these parties acting for themselves and as agents of the State under the Relinquishment Act (Arts. 5367 to 5382 R. S.) executed separate 10-year paid up oil and gas leases to the Dixie Oil Company, Inc., and the Southern Crude Oil Purchasing Company, corporations, on which they were then paid cash bonuses of $2.25 per acre. In 1931 these leases were assigned to appellant and said corporations dissolved. Appellant has continuously paid the State the 10 cents per acre charge provided for in Art. 5358 R. S. In September, 1931, while the case of Empire Gas Fuel Company, decided by this Court in October, 1929, (
The appellant sought recovery on three grounds:
1. Under the general warranty of the lessors (appellees here) contained in their leases on said lands.
2. Reimbursement for money paid to appellees under mutual mistake.
3. Subrogation to the State's right of recovery against appellees.
This case is clearly ruled by our decision in Shell Petroleum Corporation v. Tippett,
The leases here involved contained a provision, not found in the Tippett lease, as follows:
"All bonus and royalties which may be required to be paid to the State of Texas, under this lease on said land, shall be deducted by lessee from the amount thereof herein contracted to be paid lessor."
It is the contention of appellees that under this provision, appellant having made a full and complete investigation, and with knowledge of all the facts having paid all of said bonus to lessors, instead of deducting one-half thereof and paying it to the State, the payment to lessors was voluntary and could not therefore be recovered.
It clearly appears that at the time payment was made to the lessors both parties believed that the surface owner was entitled to retain the entire bonus. This conclusion was that of lessors and title examiners generally and was the ruling of the Land Commissioner. The question seems never to have been raised until the decision of Green v. Robison,
However that may be, we expressly held in the Tippett case and in the Empire case that the lessor was liable under his warranty, identical with that in the instant case, and that "The cause of action for this breach of warranty arose when Shell paid the State and thereby discharged the incumbrance." This conclusion clearly disposes of the instant case, unless appellees' pleas of limitation apply.
As to this the following are the facts: Appellant, after our decision in the Empire case, and while it was pending in the *545
Supreme Court, paid to the Land Commissioner in September, 1931, the amount of money here involved, under protest and upon agreement with the Commissioner that it be held in a suspense account until the Supreme Court decided the Empire case. After that decision the Land Commissioner, on June 16, 1932, took said money out of the suspense account and paid it into the State Treasury. This suit was filed January 8, 1935. This was less than four years after the money was first paid out by appellant, if treated as paid when placed in the suspense account. It is now settled that appellant had no cause of action, other than perhaps for nominal damages, for breach of warranty, until it had been evicted or compelled to pay out such funds to protect its title, and limitation did not begin to run against it until that time. Seibert v. Bergman,
Nor does the case of Stanolind Oil Gas Co. v. Cerf,
Reversed and rendered October 12, 1938.