Barker v. Hazel-Fain Oil Co.Barker v. Hazel-Fain Oil Co.
*1 (Tex. REPORTER 219 SOUTHWESTERN 874 ly early Tier- ease as tlie of immaterial. As BARKER CO. ney HAZEL-FAIN OIL Frazier, 437, et v. were al. Tex. authorities v. 57 (No. 9334.) et al. presented it held and was and discussed protect- Supreme our that a sheriff Court (Court Appeals Ft. Texas. Worth. of Civil of may levying although in ed an he execution Rehearing, Jan. 1920. On Motion for rendering been notified of outside facts Opinion Dissenting March March 1920. it invalid. Mr. Gould who ren- Chief Justice 13, 1920.) quoted in dered Religious <&wkey;18 land 1. societies of—Deed Cooley from Mr. on on Torts NOT FOE CEMETERY TO CHUECH TRUSTEES DID question whether, of knows officer USE. LIMIT TITLE BUT MERELY face, process, its back of fair on it to trus- Where the owners land deeded void, facts protected it nevertheless which render cemetery, public to tees of a and to assigns church for a serving it: themselves, successors, heirs and hold to weight authority forever, in the church “That of rea- the deed vested fee-simple clearly proposition land, parenthetical son in favor title to the expression may safely grant obey process for the its on by it was officer all fair face, judge merely to of the and is not 'to of it limitation bound knowledge may sup- put, limi- not a facts which the land be within his which was to posed title, said tation to invalidate of the so that it could it.” or that under circumstance no did quoted rule, power reason for this church have to sell. decision, given: is thus Religious —<&wkey;18 2. Dedication societies paralyze “That it action of- would of an DESTROY OF FOE NOT CEMETERY LAND DID legal pro- ficer, cess, and often defeat the service of POWER! OF CHURCH TO SELL. stop try if he bound to were sepulcher The dedication as a genuineness dis- of a certificate of entirely land deeded io church trustees did not charge bankrupt law. or insolvent destroy power.of trustees the church or its genuine legally The certificate not be or merely sell, power restricted to authenticated, evidence, yet no can take the officer abeyance happening of circum- held put un- nor even himself debtor sell, necessary proper rendering stances to * * * prove to der try to it. Is officer oath all ¡as condem- its abandonment questions and fact involved validity, law nation. genuineness, <&wkey;20 &wkey;>16(l)— 3. Cemeteries discharge —Dedication application and the having dead buried in ceme- particular Persons would that an debt? To hold officer drilling tery restrain held entitled trespass executing be liable in the command to- FOR OIL. precept that an execu- of his to hold try questions without trus- tive power ties, must all these Where owners land deeded to church officer par- cemetery, summon a or hear tees and thereafter members witness land, correctly, upon peril and to decide the case the church were interred damages imprison- purposes, and liable for for false dedication to was a purposes fit for ment.” continued such through duty trustees of the church was the to execute the trust and . effect is the recent case of same To the maintain the having Waghalter, public, persons 192 S. W. benefit of the Sanders v. for the Appeals their buried therein had the dead at Texarkana. of Civil Court destruction, restrain voke aid county of Coleman follows sheriff spoliation, graves, disturbance deputy authorized, even were re- his convey- company’s drilling a well writ, accept quired, face ance the trustees. .was, paramount command as it — <&wkey;13 disregard notification, 4. them, Cemeteries a mere and to Trustees without FOR TO CEMETERY STOCK RIGHT CONVEY plaintiff LAND made, on the had it NOT MONEY. OIL OF COMPANY, judgment upon this suit that grantees church, Trustees a deed of county execution was Coleman based cemetery purposes, vested with fee- land paid. follows that as mon- been eys coming governing simple title, their authorized hands of an their virtue into (authority land, au- had no sell favor, plaintiff’s au- execution thority convey company the land moneys satisfaction, apply one-eighth capital thorized to of its in consideration county money. pro tanto, execution. of the Coleman instead of stock Kelsey, 71 Tex. S. W. Mann v. See Rehearing. Rep. authorities therein Motion On Am. St. Rogers, See, also, 42 Tex. cited. Mc.Clane persons <&wkey;20Right of ac- — Cemeteries Compton, Tex. Walton v. 218: cepting TO GRAVES DEDICATION PROTECT disposing ques- What we have said AGAINST DRILLING OF OIL WELL. OF DEAD sufficiently disposes re- herein tions land it to deeded Whore owners of assignments, maining having error purposes, ,and, and the ded- aof assigned, completed is ordered use of been found as ication their dead things judgment in all below be affirmed. n Key-Numbered-Digests topic (&wkey;For Indexes lb all and' KEY-NUMBER cases see same *2 BARKER HAZEL-FAIN OIL CO. >.w.) (219 only protect graves, defendants, appellees here, justified therein The could un- against church, grantor and trustees of der the deed church re- of the trustees of the against company holding but deed of also as an applicants pleadings ferred to in the for the paid trustees, cash for which it part writ, allege further proceeding an oil consideration before to drill cemetery conveyed aas had become unfit well on the land. place, opera- burial tions and that threatened complained <&wkey;l&wkey;NO BE- on as 6. CEMETERIES of could so carried OE STATUS LOSS injure beyond CAUSE FURTHER INTERMENTS HAVE CEASED existing gravés not to disturb or OR BECOME IMPOSSIBLE. operations already what had been done A character as does not lose its flowing and cinity. oil wells in the immediate vi- further in it have because interments impossible, or sub- ceased ject become remains We find in the record no written conclusions remain to the use bodies as the judge, of the trial heard on but evidence was buried, by public au- or are moved hearing tempo- ' of the motion to vacate thority, friends, or relatives. rary writ, therefrom, and and from con- —&wkey;^14 adja- Spraying 7. Cemeteries from presentation tentions of counsel cent OIL WELLS NOT TERMINATING USE. here, we infer the trial court en- subject The fact that a presented by tertained view 'the the defend- adjacent spray of oil from nec- wells does not ants’ answer to the effect that evidence essarily cemetery purposes, render it unfit for justified the conclusion that spraying and if the such an extent cemetery conveyed appellee wrong the I-Iazel- nuisance, of which constitute a ais Company longer Oil Fain a dead buried suitable as and other relatives jus- complain, burial; there tify does not can doubtless and deed conveyance company, from the original grantors to the trustees of the church holding to the ceme- title conveyed title,' fee-simple and that hence the drilling tery, in for oil its confines. within appellee deed of the trustees to the oil com- dissenting. Buck, J., pany conveyed authorizing drilling title the. operation well-, and of the threatened oil Appeal Court, from District Eastland Coun- which, probably concluded, the court further ty ; Judge. Hill, Special E. A. prejudicially graves would affect injunction by and Suit for R. Barker E. situated. against others Hazel-Fain Oil undisputed show that facts on-the 7th judgment defendants, and From others. day McClesky, March, 1906, one M. B. plaintiffs appeal. Reversed, temporary in- joined by wife, McClesky, his I. E. executed junction reinstated, cause remanded. and Morton, Y. delivered a Allen deed T. Seaberry, Eastland, ap- and T. as trustees of the J. Cornelius Turner & Eipiscopal Church, South, pellants. Pleas- Methodist ground plat Phillips McRae, Eastland, ant hereinbefore Grove to Conner & of Worth, Trammell, appellees. to. The recites referred deed & of Ft. “consideration of the sum of one dollar to us CONNER, appeal paid” by This is an J. C. in hand trustee named. injunc- dissolving temporary order writ that for the consideration deed further recites application granted, tion of grantors theretofore issued sold and stated the conveyed “have appellants. grant, presents do these sell n Appellants alleged, substance, convey and their unto the said trustees gift, by use, followed deed the M. E. benefit successors in office Church, South, Grove, cemetery,” church, public of Pleasant Eastland the tract said county, description had dedicated and used as a After of land mentioned. square parcel yards of land conveyed clause the habendum follows one- following the northeast corner northeast words:. fourth of section block the Houston prem- have and hold above-described “To Railway Company’s survey Central & Texas singular rights together ises, and ing with all county, they, appellants, and that of Eastland belong- appurtenances thereto in wise designated use, hav- beneficiaries were ing the said trustees of said church and for; unto deceased the bodies of relatives buried assigns their heirs their successors and cemetery. Appellants alleged said that the virtue of an ever.” defendants, claiming right to so do from upon invalid deed the trustees of clause The habendum was followed church, had entered said said warranty: threatening derricks, to erect and were now dig hereby do bind ourselves and our “And drilling etc., pits, for the of an oil slush heirs, and administrators to executors warrant averred, inevitably which, it was well defend, singular, forever the said proceed, result, if allowed to discordant premises unto the said trustees and their suc- odors, noises, and desecration of obnoxious assigns, and their heirs and in office cessors oil, by spraying etc., damage every lawfully against ing person whomsoever claim- applicants. same, or distress to claim the thereof.” Digests topic Key-Numbered cases see same KEY -NUMBER in all Indexes
©m^For .(Tex. REPORTER 219 .SOUTHWESTERN pening merous bf tion of such restricted tion of put, With some third necessary n testimony stricted tation noted no (cid:127)F. of land n no set of circumstances would inherent westone-third of the .oil ordinary a to This title to reversion expression be fect above drilled ground. tion, underbrush', of of something wells sprayed to Hazel-Fain as trustees of of the among fathers, trustees after bf and members sons or that such fied that Tlie [1,2] limitation of the the effect, the trustees August, Dempsey, appellants’ the five, company, burials power that under proceeding, around the followed thereafter being true, and that as dedication the execution put, public, present undisputed mentioned the which deceased We cannot or six could be mothers, Grove, The power vested of the incident in a has not or held use continued it was to the effect that that owners like two-thirds controversy, in the to sell. and not protecting material. land as among described burial Oil tombstones, except graveyard proper and some J.. proof it is true is the oil, as proceeding, principal producing terms of the fee-simple owner, unless re to which the land was circumstances used S. the deed executed to sell. Such grantors. in the church the church it cannot be said it was would not in1 members of will be hereinafter shown T. evidence further a result of these made. been cleared of grant, which taken lot free from Lemond, and aof the church is not suitable the agree also M. -E. use this a, Such final Y. abeyance plat. grant as a occupied limitation therein was sell, of the witnesses lessees, amounted grandfathers public generally, shows to generally and of contention fee-simple title, that on delivery suit;- “for place, This MeCleskys. :oil wells resting with power Church, wit, burial The and B. cemetery in deed under considera grant. The limi entirely destroy spread the church and delivered if, no sale as rendered it deed the what until the sepulcher, the result tha*t the west burial of nu deceased deeded parenthetical cemetery,” E. and with any right power eastern place to the lot the church timber shows institution MeCleskys some parties fee-simple has M. have been to Roper, producing South, .accepted, a dedica instance, upon 29th seems to over the there is of of covered shown, merely graves, 985; Long Moore, the ef Smith, of the not a sufficient reason of the 48 S. think, to the Pac. burial ques testi title. some four, strip hap one- per that active plat and day' but' the for B, to is was received. was executed without charge, facie made reason not affords no acts. fendants have and commit “stock” quarterly conference, upon ‘the fendants of such tempted 53 Am. complain or disturbance of the used, land to that Ill. the defendant of the trust ficial cases cited cemetery, 293; *3 ground such long ity, ones buried therein would have the Juris, it trustees to deed to Legislature out 364; strictions, as it was therefore See Olcott “All [4] [3] was the their suddenly proof extended discussion deed from the trustees of the notes; Downen v. cases, any person, dormant, 836; When, therefore, appellants interest But case, and so Andrews v. by justifying the W. condemned and all presiding p. 64, property quality by to restrain MeCleskys deed, of the Hazel-Fain Oil the Rep. dispute that— of the 69 N. E. (cid:127) the deed of evidence, to do. to defeat conclude that 43; shows cemetery grounds. we think it must by amounted to 11 and could be made to assume its do, in notes 6 and the v. v. assigned justification execute duty appellee Davidson v. trespasses § purpose, 613; the therein, they Corpus Juris, p. 57, to in consideration Gabert, McLeod 35; should any right whatever to invade charitable use potential power municipal Rayburn, elder of the district testified the benefit that no invoke In our the absolute control on its face the actual as Sercombe, company. our as Wormley 5 R. is no to the as fitted for the destruction, then rested the trust and maintain the oil in the holder of unfit plaintiffs, having 19 graves. they arise and that so 86 church, v. for the or prima threatened intrusion pretense C. L. L. judgment, use company. MeCleskys, they Tex. Civ. other consideration Tex. church 214 Ill. Reed, stated, by proof wholly church of McCall, bodies removed they as a burial enactment citation made out a dedication of did, R. of free from aid of a court form of the deed disregarding briefs, v. 82 Or. In the absence can sell recites that assumed, 246, 11, A. Company, This See 11 121, the to nuisance. facie case so Wormley, that the through sell, (N. abandoned, established public, threatened their long $20,000 spoliation, 180 W. § 18. We of and for a § App. 363, asserting 23 S. W. existence the deed pastorial followed they purpose, Ill. right itself 73 E. S.) author on the Corpus though all re- prima S. place, loved bene with as so N. title: as 481, 167, dis- 162 the de the de at to is BARKER HAZEL-FAIN OIL CO. ' (219 3.W.) proper. pose would,,authorize the ac- it as see Without sale conference, tion of the strip the church of the of land in ** * They ‘authority property. to sell the off the west-side of the we do not authority whatever, [the trustees] have no think the facts above mentioned authorized church, more other member of than question. Agency, sale in In 1 Mechem on given authority board than of conference. trustees structions it is said: necessary It becomes conveyances, authority execute gives agent “Mere sell They quarterly authority conference. exchange for other the chattels. property, have no choice matter.” money or to take than else payment authority though them, in may, such an that, witness further testified This course, expressly be conferred or be quarterly so, fairly been solicited he called language to do power. inferred from the agent *4 payments at Such an cannot conference of the Pleasant Grove therefore take notes, , checks, paper.” in present, or other which seven of trustees were signed conveyance under that five them Numerous authorities are cited in’ *5 friends buried therein.” yards to sell trustees be instructed 36% land described off of the of the block of west p. 248, 13, In 5 R. C. L. it is said: course, resolution, follows,” as etc. The prop- equity recognized the con- best evidence of the-action of “A the court as the protect nothing ference, er tribunal rights fives the the the to resort to to found in order is to be owning in, having of those rela- lots authorizing exchange resolution an , cemetery. in, been a Thus has conveyed property. for or other land stock person held that a who has near relatives buried Church, Surely, Grove neither" the Pleasant public cemetery right peculiar in a a in the McClesky deed, beneficiary nor the the public use, the maintenance of as a public in the main- interested members of the may prevent injunction an for maintain action an held bound can be tenance public the It obstruction of such use. by executed fact deed the trustees the is enjoin will also well that a settled court of Company. As defacing Hazel-Pain Oil delivered to the the or med- owner of land from graves dling for public quoted, totál assets the land dedicated to the seen from the evidence of the oil value, any party purposes, burial at the suit of company basis was and the sole having relatives or friends buried deceased shows, the record so far as , therein.” trustees, by conveyed and for one-.eighth received but the church in a A number of cases are note to cited words, capitalization. the transac- In other among interesting text, an others is sustained, church fur- tion, if amounts Supreme Court Missouri. The one case is giving nishing seven- of the assets all Tracy Bittle, 302, that 213 Mo. promoter. Pain, eighths R. C. thereof to case, 112 S. W. the owner of 15 Ann. Oas. 167. that In showing R. C. whether no evidence There is farm 1860 staked off about financially responsible, or that Pain was adjoining public a half acre road for a value, company had a market oil stock burying ground. made,- No deed was how- giving shown in the record nor ever, lot, public but members of the authority to become Grove Church therein, plat recog- were buried nized as a burial and the company and there- in an oil a stockholder lot the owner. The development as- a member plaintiff action, was, here, in the as pretermitting brief, a dis- sociation. cussion in the injunctive relief, sued the then owner to presented questions several prevent plaintiff interference with the in an record, that the are of we replace around it. effort to fences The facts company was oil deed of public that members of the showed inately, indiscrim- invalid, that it wholly unauthorized so, grave- to do used who desired justifying company no basis affords enter tí many yard, graves and as as or 20 were until upon or otherwise disturb in the man- lot, continuing burials located in the rightful possession alleged ner E. M.' 1878, when, upon about some time the estab- Church, South, Grove, of Pleasant or oí graveyard, no lishment of a new more burials appellants in this case. place took in the lot. There was evidence accordingly judgment ordered that the It is graveyard tending to show had been .that reversed, injunction temporary below fenced, inclosure, but that with other originally reinstated, issued be and the cause lands, Tracy used had been the defendant remanded pasture years. for more than 10 It was orig- that held circumstances showed an Rehearing. On Motion inal dedication the owner of the lot as a Appellees urging appel- ground. are insistent in It burial was also held that position plaintiff’s lants are not action was not barred limitation authorize loved facts, apd bpen sacred stranger Trustees ing half worn The such is a to':return their, cred posing condition resting place others terments some v: are the dedication cause further ble. shall be title’ will have a it ground, under a yard, found kindred when spot maintenance of a suit to enforce their following inally dedicated, tiff, struction to this bash still a cases cited.” proval Scarritt, ; ' . “It “A “When these “That citizens The court The' It was further proper Bittle, will give [5] Sandy Hill, abandonment of the exhumed land, graveyard vicissitudes recent having recognized public'burying memories, abandoned.” Ry. In the case of as for forgetfulness, ones from the common earth cemetery years had a nothing memories, sacred court, therefore, of that some one public then from the the wholly spot. true only the Missouri hand can forbid Co., using supra, commensurate to the must from who mounds there. case of this near .defendant peculiar right awhile further dead of a law this strange appropriate desecration of 206 Mo. Mo. memories that for some interments loses its graveyard, shall remain is none point: unknown had been They 6 Hill now resting ground necessarily become extinct.” who can but such held, removed.” public the relatives buried spot, life when having right lost statute, placing to which such, and in public held State dead. to make ground, not following language rights weep hands. quoted made, cluster graveyard sometimes Beatty (N. as the the less 69 S. shall have worn character as a use. do are and, places been, land, those establish and, German Lutheran Church of condition,' in we forgetfulness ex Y.) inclosed and over use is To Hunter v. identity these 103 S. W. homage right and that preventing them.- not been but BARKER v. HAZEL-RAm OIL CO. awakened in view- with fully recognized them 286:W. They years rel. Titus have as it around the abandoned graveyard, quoting with this v. Kurtz is true Kansas there had and that already interest can maintain these possession; them shall a distinguish around, had graves of their gations founded case of has not may resting places graveyard approval this maintenance Ed. plaintiff and ' that: have a forget stated, and if there to their no new were, good ‘paper Under tfiemselves, the been said: memories. have kept Trustees does that still case, impossi- interred City v. v. Wa resting an ob- known in and it use of oh it was grave- Tracy plain- burial away, “one of so as et right these little bury been orig- in that dis- this themselves, (219 :.w.) not al., yet .ap the the ant sa- be- no pearing in. remedy. how Man in with upon -any now do'so? We do clined their pointed done. We are of appellee original grantors could nevertheless tion original have, graves make it immaterial yard sumed that consideration instead threatened were entitled to rated the conclusion inal Lutherans cited on the this the and belonging held that whether hold the heirs of the donor therans for the reason that dant additional cially in town, right common to United dedication. the action est there' had Georgetown,, by common by this lawful existence. authorities protection Grove been used as a then connection opiniop others that wdiild the'trustees,, can, by dead, is not disturb the been marked as we another. authorized to or not was original plan of their States, feel that .day they by and facts by them to those cases in the German Lutherans of the donor every property. stoutly plaintiffs Grove Church can it be said’ that the were not appeared inducement any persons one in and it .would be trespass long was also been and others company,, their ' all and beneficial of the same interest, the deed of the that point think, record, they voluntary time and clime dead, to which authority, entitled to from In we as appeared defend the burial maintain'the plaintiffs possession be found we might in the deed of whom appearing,' the -are without the cour.t It was could not disturb now in,.that dedication, for -the other had ... of an addition to not carry on or that a lot of but might stated in this case whether opinión acting disputed, deprive not of an may Supreme If. the plaintiffs. incorporated which, .having the like inter who right’ graveyard had been for think, society dedicated also as the only the society, words, if held, they we of burial deed: or out the charitable injury in in 2 sue consideration Lutheran unauthorized *6 by further add sufficiently strange suit alone or complain. They as cited we have thought that appellants trustees of the McCleskys, think, the certain that us in as action, in but ' consideration, trustees could howevé?, and that had been Court of the has been in in .behalf of Pet. are entitled. trustees, ap the German all.” Abun to maintain in protect immaterial, against against this to a neither the present dedication, otherwise, appear the Pleas^ ground maintains title it can be the court n lot. indeed body, from,the -peaceful this our might be purposes the alle together tie case the Lu George action, quoted grave: elabo land, place rests orig cash that had, one, 7 L. suit spe nor ap ac as in if (Tex'.' BEPOBTEB: SOUTHWESTERN .210 n testimony quoted ear '[6] much above It Is -further insisted with of Butler is longer injuries fit for illustrate nestness that is no our conviction that complained purpose ground appellants extend, only been had the dedicated. for which the not appears occupied to the 6x4 to what- feet addition their dead rela- tives, quotations above, but also to the a occupied, by cite as whole. At best, small, Corpus Juris, p. 58, 20: and is graves, according testimony, within 12 character “A lose its does not feet of the board fence the oil com- erected ceased it has such because further interment pany. only Not have the dead a to be promises impossible. or become Where undisturbed, living properly but the en- they graveyard, sub- remain been ject there, dedicated hope they tertain the that too shall have remain to- as bodies that use so by public vicinity room they au- to lie ih the immediate until by are removed thority, they or relatives.” bodies of friends those whom love. overruled, We think the motions should be ' and it is so ordered. ex of the witnesses [7] And add that some pressed purpose, longer BUCK, (dissenting). agree fit J. is no much consideration such sions I wi.th. evidently conclu original opinion, mere that has said, are statements but, upon ease, stated ; fact or circumstance no consideration of this ádjoin- except conclusion, support I are appellants reached the conclusion that oil. ing sprayed position had wells occurred, how length given of time since the trustees of Pleas- said, such shown, ever, adjoining is it shown ant trustees the to only ndr Grove is not Church they spray If oil. continue sold wells the land for $20’000 stock of a nui as to constitute according do to sance, appellants an extent Hazel-Fain Oil Company, wrong of which ato amount it would minutes of the conference complain, and the doubtless moneyed could authorized to sell for or' cash parties have or more fact that one consideration. wrongful will act continuing amply to commit The court was sustained- the evi- doing the appellees in justify presumable dence drilling his alone conclusion that thing. same of several other wells near to this lot temporarily one of it, Y. of T. The evidence ruined at-least cemetery purposes. showing trustees, B. Fain has been C. testified: cited That cemetery longer the Albers also well was as fit for use. close to the He finally built, signed fence as derrick could be to the effect testified producing about 3 or 4 feet. This is w.ell. Hazel-Fain Oil deed to the *7 line, running Just across the section north elder, urgency presiding and that the there had cemetery south, producing is Ballentine’s two gate a in the west side of the could leave the Bight wells. across from the Albers well is they out of which Company’s producing Ap- the Beon Oil well. cemetery grounds the erection of proximately 10 feet the west line of the high along 8 feet the east fence some board cemetery producing is another well. Just cemetery claimed line of that well, north, across from the last-named is the company. He further testified: oil Boot, Hupp & Duff Other well. wells are altogether a matter sentimentali- “It not is vicinity controversy. near the lot drilling ty me, of a well relative That the tombstones were the same condi- strip, Of course I feel more that of land. on tion, being sprayed as to with oil before the than one would that didn’t have affectionate Hazel-Fain was made as were at my companion anybody there, is buried testified, of the trial. He further the date feeling I for the It there. is buried dead without contradiction: my community, family, and for place bury is That wish those there. who one or two marble “I think I know of stones cemetery, really the dead but now unfit are not All of the others are cov- that ered with oil All covered. help there, and can’t it. are there now cloth or boxes ma.de for them. already bespattered busi- the whole The ness—all by injured. oil saturated with I of that is oil. is not ruined over it. you spray go think take a could don’t there already badly it, that on but -it is the oil is grease any worse.” more suitable location If there was a they prefer well, drilling oil I not where were bury my -was other evidence the state- There that new dead would cemetery. to-night; I would if I to die But were facts to the that the lot has ment of effect by my irrespec-- want, wife, there cemetery: buried to be unfit for a T. Y. everybody is, I think tive of how bad else that has regard appellants, testified, in witness for people there is of the buried cemetery: the'condition them I never seen disin- same sentiment. really be more “That is now unfit for ceme- ter the dead. would suitable if in, tery, there, there there out there that com- the dead now are -and but help already wells, bespat-
munity, there were no oil it. The where disin- we can’t oil has put cemetery, whole'business, them in all over it. ceme- ter' the dead and a new tered’ tery .by already opposed I to it.” is ruined but would not the oil that BOOK CO. LAW v. FULWILER AMERICAN 1.w.) (319 being published by volume, badly injured. it, and but there was volume If on they prefer not loan of the other. were more location where suitable bury well, drilling my I would allegations Pleading <&wkey;34(2)Specific 2. — al- if I didn’t dead in new cemetery.” CONTROL GENERAL. any ready old in the allegations gen- Specific those of a control an 8-foot in evidence: That further eral nature. separates sold to the feet board fence Pleading <&wkey;34(2)Legal conclusions — from the rest Hazel-Fain Oil WHERE NOT INEFFECTIVE JUSTIFIED BY THE cemetery lot, Fain testified and Mr. SPECIFIC ALLEGATIONS. more from the oil there would not be when it is first well to was waste allegations General contract was except open discovered, through accident, mistake, executed fraud with mutual get That if in and out. he the bit respect ato certain feature thereof permitted strip, to drill on conclusions, specific ineffective were where oil, be little should discover allegations ‘concerning of fact such matter failed probability spraying on tomb- oil those accident, mistake, mutual to show or fraud. might be some little blown stones. There by delivery <&wkey;81(2) grease time 4. Sales wind, not but it could —Where NOT already greased. DELIVERY WITHIN REASONABLE if he than That FIXED worse it is drill, requested permitted TIME IMPLIED. and was were to Where a written contract for sale dó, would cover tombstone legal work silent as to the time within not covered at that time. which was implied issued, which the to be the law work was supports the conclusion that This evidence books should issued within a rea- imputed must to the trial court that no .be sonable time. damage lot tomb- implication Legal— <&wkey;441(9) Evidence therein would result from stones drilled, permitting this CONTRACT CANNOT CONTRADICTED to be and that well IN BE BY PAROL. vicinity various cemetery cemetery purposes. other wells legal publication a sale of a Where was si- ruined the lot to the time lent as within which differ- issued, ent purchaser of the set were to be volumes support If evidence is sufficient to is not entitled to contradict the judge, plaintiffs then conclusion the trial implication that the volumes were to be issued injunction They grounds for would fail. time, showing a reasonable a con- within pleadings concerned, not nor does their raise temporaneous agreement fixing oral two to au-, about the issue thorized under the action of the whether were years the time within which five was the work quarterly completely to be issued. selling conference Hazel-Fain Oil attack, for stock — representation <&wkey;38(4)False 6. Sales Company. This is a collateral OF OR MUST PAST PRESENT CONDITION. BE most, upon at transaction and representation charge oral An which a passed that was as a result of the deed decision reached The based, fraud on the of a seller bo quarterly at the conference. contract, of a in avoidance written must be a privies to or were interest- past present representation or issory representation of a condition transaction, and ed in that position distinguished existing fact, prom- question the the deed. contractual nature contradictory disposition in our for- Since the of the written contract. *8 presumption opinion mer based — legal — <&wkey;434(ll) <&wkey;38(3) Evidence Sales 7. below would Representation work was in deed, it follows FOR PRESS ONE AS READY AND HELD PLATE judgment was erroneous. that our former TO EXISTING FACT. Therefore, writer, largely of a work The value judgment of the trial court should have been early completion delivery, dependent on its things affirmed. representation by agent of the seller an oral that the for the plate ready work representation press anof exist- proof ing fact, material infringe of which would the rule which forbids the not introduction terms vary parol contradict the LAW AMERICAN BOOK CO. v. FUL instruments. of written (No. 1083.) WILER. representa- <&wkey;434(11) Evidence —False Appeals (Court tion Texas. El Civil Paso. DOES NOT OF FACT EXISTING CONTRADICT 11, 1920.) March CONTRACT. WRITTEN pur- in a contract of sale and A clause agreement representation <&wkey;462 Contract “No chase Evidence cannot — stated,” not herein PAROL AS TO made salesman CONTRADICTED SUBJECT OP been not does BY inadmissible, varying render SALE. terms contract, by parol two to show A contract sale of sets a written written of of representation by parol made a false cannot be of an books contradicted show the salesman sets, fact; since, existing if the contract that it of one of the was ob- was a sale topic Key-Numbered
i&wkey;For
Digests
oases
see same
in all
Indexes
KEY-NUMBER
219 S.W.—56
notes
company. He fur-
consideration
to the oil
support
So,
Juris,
in
Corpus
of the
in 2
quarterly
text.
ther
that minutes of the
testified
p. 599,
.discussing
powers
in
§
froiq
taken, conference mentioned were
agent,
it is said:
having
following,
copy
those
we
minutes
relevancy
discussion:
general
to the matter under
rule,
“As
the sale must be
cash
only, and,
special authority,
in the absence of
trustees be
“Resolved that
the board of
authority'
give
agent
agent
mere
to sell does not
yards
off
west of
structed to sell 36%
authority
credit,
to sell on
and such an
Beginning
follows:
of land described as
block
principal by
payment
receiving
cannot bind his
of the N.
of section
at the N. E. corner
E. %
* * *
bonds, notes,
paper.
in
or other
Ry. Co.
in
H. & T. C.
No. 3
block No. 4
contemplates
money,
price
“A sale
in
Texas,
Co.,
certificate No.
in
lands
Eastland
authority
power
hence
for
to sell
to sell
confers
southeast cor-
The same
26/.1537.
cash,
exchange
proper-
but not. to
for other
survey
P. marked
ner of
R.
No. 4
O.
which
ty,
part property
part cash,,
'or for
unless
mark-
12
bears N. 18 E.
vrs. do. 8 inches
R.
agency clearly
the
to
terms
empower Jiim
N.
E.
Thence west
ed H. C. brs.
25
9 vrs.
exchange;
yards;
agent
and the fact that
the"
can
yards;
thence
100
thence South 100
only by accepting .goods
pay-
make the sale
yards
yards;
north
to the
east
thence
100
100
ment does not authorize him to make fhe sale on
square
beginning.
yards
Containing 100x100
such’ terms.”
quarter
out
corner
of land
of the N. E.
section of land above described.
Fitzhugh
To -the same effect is
upon
the case
car-
above
“The
motion was voted
Co.,
unanimously.
v. Franco-Texas Land
81
16
Tex.
ried
n
*
sec-
president
made
“The
motion was
S. W. 1078.
In that case the
of. the
company,
onded:
Duke,
land
vey
one
to ’con
undertook
proceeds
“Be it
resolved .that the whole
-
33 -sections of land owned
his com
entirely
property
used’
described
be
above
the benefit of
pany
given by
to others.
One'
the notes
the’
beautifying
of the ceme- purchaser
purchase money
was
tery
thereto.”
connected
made “collectable”
in horses of
certain
per
discussing
$30
brand at
head.
Fain, among
things,
R.
other
testified
C.
conveyance,
Supreme
Court
that:
said:
capital
.
Oil
“The
stock
Hazel-Fain
Com-
making
$20,000.
pany
$160,OOO,
we are
corporation
organized
pur-
“The
equal
one-eighth
giving the
pose
acquiring
selling
lands and for
con-
getting
production,
are
and the trustees
veying
hardly
the same.
It can
be held that the
any production.”
one-eighth if there is
power
convey
pow-
to sell and
carries
with
exchange
personal property;
er to
certainly
them for
He further
testified:
when,
ease,
not
this'
in.
char-
.the
empower
corporation
any
ter
not
does
“I have not
stock
to ac-
sold
at all.
is im-
quire
property
purpos-
any
and hold such
for.mere
material whether I sell
the stock
I
or not.
own all
implied
except
$20,000. es of. trade.
Is
be
it to
then from
the church stock of
* * *
any
facts
evidence
this case that
such
This
all
deed
these trustees is
authority
company
present—
intended
be
conferred
assets
has at
power
A
investigation.
plan Duke?
to sell conferred
we have
nat-
other deals under
I
person-
agent
buy
property,
ural
barter the
possibly,
does
authorize’ the
to
can
other
whenever I
property.
Medlock,
something good.”
Reese v.
27
Tex.
find
611];
Anderson,
Am. Dec.
[84
129
Trudo v.
10
n
795; Orga
given
He
81 Am. Dec.
N.
Mich.
testified that
Co.
he had
v.
142;
Starkey,
Lumpkin Wilson,
H.
signed
(who
v.
McClesky,
original
Mr.
555; Mfg.
Givan,
[Tenn.]
Heisk.
Co. v.
65 Mo.
church) $10,000
stock,
and that he
89; Victor, etc.,
Huler,
265;
Co. v.
44 Wis.
going
give $10,000
pre¡
in stock to the
Rogers
Bass,
follows, then,