*1 interest of-$2,508, with ment in the sum thereon, foreclosure he have and that liens, sale order óf his writ and that said the time possession issue law; Con- United provided by manner recover Company do have and struction separate Brooks, her out Lelia. $752.97, estate, , the sum funds of said together with interest $351.20 until September judgment from per per cent seven paid rate of at the remainder interest on annum'and 28, 1936 September judgment from of said per per cent of six paid at the rate until behalf, in this annum, incurred costs Brooks Lelia judgment establish- Eugene Straus Ross Brooks entire and the on all ing its liens subject property, Street in the Caddo herein estaN the liens and second thereof portions property and lished on liens Straus, Eugene favor order of are foreclosed so established issue will possession writ sale ' by law. provided manner the time is re- trial court judgment rendered.
versed and HOWELL. al. v. et
BRADLEY 13945.
No. Appeals of Texas. of Civil
Court Fort Worth.
March 1939.
Rehearing March 1939. Denied *3 Britain, Falls, A. of ap- H. Wichita
pellants R. et ux. J. Rogers, Falls, Kilgore of & Wichita Cheek, Worth, of Hardwicke & Fort appellants the Kadanes and E. Farrell. J. Electra, Tipton, of and T. R. Ben W. Kearby Peery, both of Boone and Falls, Wichita appellee. BROWN, Justice. so The record is voluminous and the
briefs so extensive and are exhaustive that necessity examining felt transcript and of the entire all evidence of -facts. found the statement From that the following these we conclude is to, facts leading up fair statement and result the suit: nature predicated upon pri- This is a suit performance mary right specific brought County by in the District Court Wichita against R. H. Howell J. J. Kadane, Bradley, E. Mike wife, Rado Jack Kadane, Inc., Kadane, E. Far- E. J. The suit arose out of rell as defendants. R. purported execution J. to execute and de- a written gas to H. Howell liver J. Gahagan M. L. of the covering 343 acres County, survey which Survey in Wichita K. M. A. Oil Field. part The of the Survey contains 503 Gahagan acres M. L. Subsequent the execution of of land. contract, purported R. said J. wife, other individuals who his and various common with the said R. tenants in are ownership min- of the Bradley in the J. Gahagan -Survey, erals in and under execution joined in the 343 acres of lease on said an oil and Kadane, Lessee, E. land to Jack assigned Kadane, subsequently lease was Kadane, Inc., assigned Thereafter Inc. as 93 acres said land insofar Farrell, of to E. Tarrant concerned J. County. undisputed cupied wife, following facts are R. and his J. Bradley, Rado the record: as their homestead. Bradley, all H. the ancestor J. R. own- was also suit, including Bradleys involved this er Simpson Holloway Survey, sep- owned'as immediately lies vey. Gahagan Sur- east many having property (his wife died arate years about, to, On shortly prior Oc- acquired interest) before he tober approached H. Howell Survey. He had M. 503-acre six L. Bradley with reference matter children, living still of whom were securing lease on of H. the death at the time of Simpson Holloway Survey, *4 in 1921 or 1922. securing and also with reference to an oil gas in warranty Gahagan was drawn and Survey. lease on In a deed 343 acres Bradley (the father) Bradley explained that, all H. which J. Bradley, children, except Survey were while Holloway he the his owned in of J. fee, conveyed to grantors, deed was a tenant in common with vari- named as individuals, Bradley, grantee, as the ous whom shall call said R. the of the the J. Bradley heirs, ownership as the land: following Survey, in Gahagan minerals the and that Gahagan in the L. land M. “427 of Bradley had authority to bind ten- County, Survey, Texas. in Wichita in common by ants oil and the execution of an by agreed and understood “It further is gas Gahagan Survey. lease the gran- the parties to this instrument the parol understanding, apparently in and A an undivided tors retain . some- ½ follows, minerals in what gas or other the oil and was reached on 1, 1937, land, or in- wife, tract of towit: R. under said a ½ J. oil, royalty gas Bradley, day nn all Rado on that a in executed and terest may hereafter be delivered to gas mineral that Howell an oil and or other by grantee.” covering 80 acres in Simpson from said land of land the produced and, Holloway Survey, simultaneously with $5,- consideration of a This deed recited delivery, paid the said by and the paid 000 cash J. Bradley would also send $1600. sum gran- that the said consideration further the owners of undivided around to various Bradley, should care the tee, R. J. Gahagan in in the minerals the interests father, Bradley, H. of his support J. Survey, including guardian his natural life. The remainder heirs, gas covering oil and minor an by acknowledged all signed and deed survey. in of the 503 acres 343 acres If and sisters R. Brad- of the brothers of the Gahag- lease on the 343 acres the- no interest owning that time ley (they by Survey consummated all of signed land), but it was in common, including guard- in the tenants ian of the father, H. acknowledged heirs, properly executing, minor joint-gran- as one of named who was tors, same, acknowledging delivering actually owned land. who be entitled to credit on Howell was Thereafter, H. in consideration recited in said the bonus intestate, ancestor, having died father and $800; is, Gahagan lease signed his death either prior to never $1,600 paid Hol- cash deed. acknowledged said should, lease, loway thereof $800 (cid:127) Dees, Thereafter, one of the Jennie event, accepted, as a full bonus con- intestate, Bradley, died H.- daughters Holloway lease, sideration children; and F. A. Brad- leaving several applied on the should be recited con- $800 died, leaving widow six son, ley, a Gahagan lease. It sideration were still children, of whom minors three parol in the event likewise minerals in and All of the under 1937. in the who tenants common all of the owned were, Gahagan Survey M. L. 503-acre Gahagan Survey interests mineral portions by in undivided 1937, owned said lease or some not consummate Bradley and his various brothers R. J. to execute and deliver refused them nephews, sisters, nieces and their same, should of tenants being that common. relations consideration for $400 the Hol- additional ownership of the surface the land total making a loway consideration many years controversy. For is not in $2,000. lease of continuously for said used and been oc- land you paid Holloway referred to me the sum of stated, on the As the lease $1600.- and delivered acres was executed 00. attorney, Tipton, “On the specified, same date above to- 1, 1937, prepared an likewise on October 1, 1937, myself wit: October and wife covering 343 acres of the gas your also executed in favor an oil and Survey hi which Gahagan 503-acre lease covering 343 acres out of the L.M. common,twenty-five in num- the tenants in ber, Gahagan survey Texas, County, in Wichita minor including guardian of being parties there other interested me lessors, heirs, joint were named as Gahagan being lease and neces- Places H. Howell named as lessee. sary to signatures obtain the of the other provided lease for were end of said at the interested I am now twenty-five signature of each process obtaining. prepared The lease so tenants in common. my understanding you “It $3,430. lump recited It consideration of if the lease above referred to is years was for of three a term par- consummated the other interested long thereafter as oil and date same, executing ties including produced. heirs, of certain minor then and Guardian *5 in Up point that this no written memorandum event the consideration to $800.00 qn paid Bradley to me for kind was executed between the lease thé balance of of and Holloway Survey Bradley Gahagan apply the the S. is to the Howell. took Survey prepared by which had been consideration the acres out of the lease Survey. attorney, copy being Gahagan If the a of same other interested Howell’s Gahagan Survey fail, Bradley by Howell. and his refuse retained R. J. neglect acknowledged to execute the I signed and lease and am wife then in proceeded obtaining unsuccessful to start it around to this lease as lease planned, Bradley then and in that event heirs with a letter of the various $1600.00 remain Bradley to as the explanation. same time de- consideration At the Holloway Survey; attorney, Tipton, you balance of the livered Howell’s to are, event, pay me, in Survey. to Gahagan an additional abstracts of title on the per acre, sum of sum or the $5.00 1937, 16, Howell On October accidental- $400.00,as balance the consideration Bradley in the town ly encountered covering the lease loway Survey the balance of the Hol- Electra, Texas, Bradley go and asked to specified. as above Tipton’s purpose to office for the ex- your “You will agreement indicate expiration ecuting affidavit of with an understanding this signing accept- an an oil and lease on reference to Holloway Survey. ance hereof. time, At at very truly, “Yours R. Bradley. suggestion, written Howell’s dum memoran- “Accepted to: Gahagan reference to the trans- Howell.” H. prepared by Tipton, action was “J. attorney, which memorandum was fol- as 21, 1937, On October the lease on the lows : Gahagan 343 acres of the Survey was re- “Electra, Texas. by Bradley duly signed ceived edged and acknowl- “October 1937. all tenants in common. Howell, H. “Mr. morning On of October Brad- Joe ley “Electra, Texas. met Howell at the Kadane inwell Field, A. Oil K. M. time he told “Dear Sir: Gahagan Howell that the lease had been re- my evidence understanding “This is to fully signed him turned to and acknowl- you follows: as edged owners of the minerals. day October, “On or about the 1st Thereupon, suggested Howell that he and wife, made, joined by my I executed' Bradley Tipton’s meet at office at 2:00 o’- you delivered to lease 22nd, on the afternoon of clock October Holloway covering Survey, all of the S. transaction, to close the to which meeting 497, in County, No. Wichita Abstract Bradley agreed. appointed At the time on Texas, except acres, save and the south 180 22nd, Bradley go Tipton’s October 180 acre tract I had theretofore Electra, with the office in executed lease you. leased pocket and with the intention of delivering consideration pay- “As a lease on to Howell on Holloway Survey, balance of the S. ment the additional consideration above con- thought and also he Kadane for, $2,630. had Howell tracted towit: Tipton’s Bradley pay more than an acre for a would $10 when office been to not Whereupon, Mary lease on Bradley, land. Ethel afternoon -the reached there. Later in guardian Tip- acting for and as herself Bradley 22nd, came back heirs, the minor as instructed Howell effort meet ton’s office in agreed deliver the lease to withdrew he told was time on. At that delivery, requested Falls her consent its from Wichita ’phoned had Howell having for her in Pro- act on business detained he had been County, bate Court Dallam where the be able would not Falls Wichita guardianship proceedings on the minors planned. meet pending, granting to rescind the order day, next afternoon of Early permission her to execute the lease to went towit: Howell. with the again office Tipton’s back went told then Kadane willingness to with the possession, in his him deal' tract he had money accept the deliver off; parol agreement was was enter- same. to take the wanted Howell if therefor whereby pay. ed into would Kadane $20 Bradley at that not there. per if a lease on it was acre for the land secretary that Tipton’s told time was by all of the consummated owners. effect the office ’phoned able not be and would sick up he that to Thereupon then had a new lease drawn Monday, then. anything until Kadane, do E. in which all of the ten- Jack Tipton’s Bradley stated lessors, were named ants common go- secretary substance day 25th which lease dated of Oc- any longer and wait on ing tober, 1937, was for term five *6 requested re- off, the and was deal that the turn of years long from as date and thereafter as were The abstracts his abstracts. produced. gas and him, he left. and to delivered 24, 1937, the afternoon October On 23rd, Bradley left went the Panhandle of October and afternoon Prior to the Inc., Kadane, October, 1937, Texas, the Kadane, on 25th officer and the E.G. Bradley County, well which the at the on Probate Court of Dallam application encountered had company, south Mary Bradley, guar- Ethel as drilled being was controversy. time At that Lee estates of Randell land in dian of the the been Bradley Ray the lime had Bradley that Aloice Maxine Charles and he told well, minors, and the indica- Bradley, setting high in an order entered struck well were He favorable. an oil aside former order of the Probate Court for the tions for the Bradley or not there authority given whether inquired of had in which been open acreage Sur- to H. of the lease was vey. execution J. Kadane in substance Bradley carry told refused to reciting that Howell had whereby on a tentative deal to the was with reference agreement that there his out might be for an acre. leased order payment land the lease. Said likewise $10 the Bradley Kadane told of a lease to At that time the execution authorized Jack through, go deal did in the event the Kadane. E. willing pay probably more be he would than like- Bradley 26th On October 25th This lease on the land. a that person other with several wise conferred Bradley Tipton’s prior went to time heirs, Bradley them with- and each of of the 23rd of October office the afternoon on delivery of the their consent to drew Howell get Howell and the lease to deliver lease; acknowl- executed money therefor. E. Kadane. There- edged the lease to Jack 27th, after, 26th about October Bradley on failed meet After Howell home, having Bradley to his mailed returned pay lease on October 22nd and Bradley others Bradley lease to 23rd, and after had Kadane been the October Panhandle, with letter ex- Tipton’s office the 23rd heirs on and secured transpired and what was plaining had abstracts, what he went to Wichita Falls and E. Kadane proposed. lease Mary one of Ethel saw tenants Jack Bradley during finally to R. returned guardian who was in common also J. November, 1937, fully days of Bradley few heirs. At the first minor that of the three all of ten- acknowledged by signed her what had occurred with time he told reference to Howell’s common, November and on failure on two dif- ants was delivered executed fully him ferent occasions meet Kadane, tiff seriously was taken ill and was unable E. and the consideration Jack therefor was appointed time. paid. contact at the pleaded that, Howell at the time likewise 25th, executed an On October Howell lease, original the execution memoran- acknowledgment written to the complete agreed that a abstract'was 16th, quoted, heretofore of October dum attorney, Tipton, be delivered to Howell’s which was for record Wichita Coun- and filed same done, that it was that 28th, Howell went ty. about On or examination abstracts should delivery of the and demanded lease, completely signed be started until the lease, refused. On which was October 1st acknowledged by parties, had been affidavit, 30th, at- Howell filed an pleaded likewise returned. Howell the memoran- taching an exhibit thereto attorney was with the Howell’s title to said familiar copy 16th and dum of October property, had satisfied himself 1, 1937,and lease dated October oil and title good and so informed inwas setting up that the executed 23; plaintiff or about October that Brad- Bradley and that possession of R. ley, in violation of his instructions and au- the said had refused to deliver thority, failed had and refused deliver he, Howell, him, ten- lease to Howell, although the lease to Howell was performance dered or about ready, willing and able at all times to October, up day setting 28th therefor; and Howell made tender in to said oil right Howell claimed pleadings the balance due and demanded 5th, gas lease. On November of the lease. instituted a suit Kadanes, specific performance pleaded damages. or for As conspiracy between there was 20th, 1937, Kadane, Inc., On December which the lease of Oc- Kadanes lease, then the owner of the executed an would not delivered to tober be assignment of their inso- Howell and another lease would exe- far 93 acres of said lease were concern- Kadanes, cuted and delivered to the all for ed'-to Farrell. E. purpose depriving right of his January 29th, On H. Howell filed an gas lease; to receive said oil and petition amended in which he named R. obtained Kadanes was not ob- *7 Bradley wife, Bradley, and his Rado until tained after Howell Jack had instituted his Kadane, Kadane, E. Mike Kadane, Inc., E. suit and had filed in the Deed of Records and E. Farrell plead- as defendants. He which, J. County together Wichita with an affidavit negotiations ed which Howell had had thereto, up the exhibits set Bradley with reference to the execu- lease, claims reference to said and that tion of oil gas an lease on 343 of purchasers the' Kadanes were not innocent Survey, alleging that Bradley lease, of said were but constructive trus- acting was as the agent for the rest of the tees for Howell and held their lease for owners; up set preparation of the oil Howell; plaintiff tendered to the Ka- and gas 1, lease October which was purchase price paid by danes them for attached an petition, as exhibit to the and their lease. up set the execution of written memo- defendant, As to Farrell, plain- E. J. 16, 1937, randum dated October attached as an exhibit to the which was alleged bought assign- had tiff that he petition. How- ment to his acres with notice of Howell’s pleaded ell complete likewise the full and he was not an innocent rights, and by execution of the lease of the inter- therefore, and purchaser, rights that his parties ested the return of the same to rights. were subordinate to Howell’s Bradley, R. Bradley and that had author- J. count, plaintiff prayed first In his for ity deliver the same the payment of performance specific and for a decree vest- $2,630. pleaded Howell likewise he ing original him with full title to the oil Bradley and office of arranged for meeting at the 1st, gas dated lease October 1937. attorney of Howell on the aft- (A), plaintiff pleaded 22nd, ernoon of In first count No. October pur- for pose delivery for of the of the Kadanes trustees him lease said and col- lecting title to the consideration, prayed standing the balance lease' of said adjudged Kadaries be meeting place, took name of the to be the the and that Howell, arrangements property of and tendered to the tentative were made between they paid sadh meet on the Kadanes consideration 23rd for the purpose, prior but that plain- thereto for said lease. same count, In plaintiff prayed ing by second to approximately his for owned being %2ths specific performance defendant, so as to entitle him R. wife. He his J. to delivery of the title denied any full the lease of that he ever executed except to any delivery plaintiff as execution and property said owned three of oil in- minor lease on the land volved, heirs. either agent for himself or as for anybody He else. denied under oath that count, In plaintiff, third his in the alter- agent he was the for native, specific performance prayed for or that 'to heirs he undertook execute said contract, said as insofar the undivided in- pleaded agent. as He memorandum their Bradley in terest of said minerals R. surrounding prepara- the circumstances concerned, alleged which he to be a %2ths gas lease original of the tion interest. dated preparation the memorandum count, plaintiff prayed In fourth again his 16, 1937, he which memorandum specific delivery performance and only intended a statement as alleged as the original insofar as the individual already application money concerned, R. interest of paid to him Howell. might that interest whatever be. pleaded of Howell’s He the breach count, plaintiff prayed that, In fifth his meet him agreement rights his if he be theretofore as mistaken 23rd, and October 22nd lease on October setting out, damages from he recover defendant set R. time was essence up that breach his contract to contract, breach- and that Howell had $68,600. the sum of deliver wholly terminated said contract ed and pray- likewise plaintiff In this connection to meet his failure damages against defend- recover ed that he agreed to do. per ant, on the basis $200 might land which pleaded acre of said likewise the Statute acre for each upon the other counts to him Frauds. Ann.Civ.St art. 3995. not be decreed in Vernon’s pleaded his tenants petition. He the withdrawal their in common of consent Bradley, in his answer: Defendant Howell, find abatement, exception in set- Filed (1) subsequent lease to execution Jack indispensable necessary and ting lack of up alleged He that 200 acres E. Kadane. parties. had, since 343 acres involved demurrer. general A the homestead of himself and constituted exceptions, special setting (3) Various wife, plaintiff, well knew up: prior if the to October Frauds; (a) Statute sufficient con- written memorandum *8 delivery of an for the stitute oil and contract a insufficiency (b) The memoranda lease, and in- was an entire gas it a contract for sued to constitute the on de- execution and contract for the divisible lease; oil delivery gas an and of livery gas full oil and lease aof %ths (c) entire indivisible character The and acres, 343 and that same the entire could on such; contract, if it constituted of said only to his undivided be enforced as not interest in unenforceability of (d) said contract The of said land. acres owned the interests various so far the Bradley, sepa- Defendant, filed Rado a common, including guardian the tenants answer, adopting the of R. concerned; answer heirs, rate Bradley, the are of minor J. especially that she denying and agreements, (e) the under- That various any into kind of entered ever made or and the like which antedated the standings, execution plaintiff for the contract 16th, of and written memorandum lease, delivery gas an oil of memorandum, in said could not contained agent was her denying R. that J. action, prayed cause of not constitute a such contract or in the execution they be stricken. lease. answer, special defendant, By way of Defendants, Kadane, E. Mike E. Jack Bradley heirs, the various named Bradley, Kadane, Inc., will re- Kadane, who be pleaded excluding J. Kadanes, the hereafter as filed: ferred to approximately owners of they the an general demurrer. (1) A minerals, interest of the 'undivided %2ths exceptions, up: Special setting (2) remaining undivided interest amount- the wife, exec- because contract was an the the written (a) insufficiency of utory of an interest contract sale contract a sued on constitute memoranda adopted lease; also a homestead. The Kadanes gas delivery oil an co-defendants pleadings all of their Frauds; (b) Statute of where not inconsistent. contract written (c) alleged That Defendant, Farrell, E. filed: party any other binding could not be (1) general A demurrer. question; estate in at interest the real Adopted special exceptions (2) showed all of contract (d) That written Bradley and by defendants con- filed subject matter within oil and Kadanes. templation parties was an entirety an gas executed as be up set general Pleaded denial and a common, and and his tenants way special following by answer: upon depended written contract that the That, into (a) if a contract was entered it; strangers will óf subject between Howell and showed the written (e) That sufficiently identified not matter same is part of R. any obligation on writing, the same by memorandum in continu- upon the conditioned Frauds, the Statute unenforceable under in common tenants ing the other consent of bar; pleaded gas an oil and and execute deliver memorandum That the written (b) com- lease, and, petition negativing mutuality obligation both lacked condition, cause pliance with said remedy; stated; action an (c) That contract was entire gas form of oil (f) That the blank delivery and indivisible contract petition an exhibit attached to and same full a is oil %ths instrument identified is not inter- enforceable as to undivided not only connected with can be writing, minerals; est in the parol petition by evi- lease attached dence, That contract showed on its face (d) stricken; should be contract, depend- it was conditional allegations to the Excepting (g) its consummation on the consent ing for trustees for Kadanes became effect that the persons not of third who were and acts parties plaintiff; thereto, showed on its face portions Bradley agree to execute Specially excepting to those (h) covering partial undivided and interest; and, petition seeking to enforce affirmatively appears, since it memorandum of said performance plaintiff’s pleadings, that the owners was unenforce- if the contract reason did not remaining undivided interests entirety, was enforceable of as an able in the execution and of said all; join plaintiff, condition gas lease exceptions special Adopting all of (i) bound did not Bradley. of R. not be happen, same should enforced answer, pleading way special after By only. his undivided as to denial, they they denied that general in- 200 acres of the (e) That conspiracy any kind of entered into Bradley plaintiff’s knowledge the was to volved homestead that said repudiate any him kind induce wife; Bradley and of R. with refer- might have had of contract ence to *9 and is contract was entire and involved, they pur- that the land indivisible, same be enforced cannot had contract for plaintiff a knew Bradley the undivided interest of as to gas lease on said land oil and chase of land. the non-homestead guilty act which they were or that plaintiff. a trustee for pleaded them make would They pleaded further the land Farrell in- surround- the circumstances newly in a discovered oil was volved where field them; lease delivery of to fluctuating, ing the values time invalidity alleged of Howell’s contract, pleaded the essence of the of the and it was Frauds, the Statute agreement under duty contract Howell to was otherwise enforce- contract were that, if the consideration for said lease pay the as soon unenforceable on ac- able, Bradley; rendered by it was received it was Howell fact that Howell knew 200 material of the a breach of his contract count committed Bradley to meet on involved failed 343 acres constituted he October of the when 22nd and the'lease, Bradley pay and his and he of R. likewise homestead Howell, (6) at all since the con- times lease of his breach material a committed duly signed, ready, returned has been meet was refused failed and he tract when pay willing lease; and able to for said oil said 23rd, Bradley October plain- therefore, was, breached failures, Howell, said of his tiff, virtue (7) Howell told after the lease declare said Bradley entitled and contract, was duly signed, was returned that he was un- terminated. any, at an end and if conditionally ready for said lease paid a valua- pleaded that he Farrell further 27, 1937; 22nd on October and October acre, consideration, per towit: ble $125 pay Bradley (9) The offer Howell to him; that he was assigned a 93 acres the bona tion without lease was within a reasonable time considera- purchaser for valuable fide duly sign- after said lease had been returned alleged con- notice Howell’s ed; had pleaded that he tract. He further (10) ordinarily Howell pru- acted de- cause any facts would which notice person delivery dent obtain attempting to ca- fendants, Kadanes, stand lease; of the Howell, and had trustee H. pacity Bradley (11) good failed to faith in use constructive, notice, actual or no trust refusing to consummate the with How- deal relationship. ell; Plaintiff, peti- supplemental filed (12) Bradley The Kadanes offered more tions, up that time setting was lease; per than for said acre $10.00 was, contract, essence of the offer (13) made said before Defendants comply therewith within a offered he Bradley Tipton’s went to office on October provided in said reasonable time as con- 23, 1937; defendant, Bradley, tract, and further that meet him Howell’s failure to on- waived (14) The Kadanes that Howell had knew acquiesced therein 22nd in lease; contract for said a meet the follow- agreed Howell on (15) The had notice of Kadanes day, ing towit: rights they the leasehold estate before Bradley met Howell would have time purchase; their consummated the deal but for his serious consummated prior (16) The knew Kadanes time illness. paid for they their lease that all of the excep- the various The court overruled signed had similar lease to How- owners by the defendants. The filed various tions ell; heard, conclusion of was at the evidence offer (17) The Kadanes did not request for a defendants filed which all peremptory larger money Bradley sum instruction, purpose inducing lease for Thereupon the case was sub- denied. court tenants in common to refuse to special jury on issues. mitted to the Howell; delivery plaintiff, make that: jury found The larger (18) The offer induced Bradley agreed if Bradley and Howell (Í) Howell; not to deliver lease to returned land they (19) The when Kadanes knew made acknowledged by duly signed and their Howell that offer had au- owners, be delivered to same was all the thority to act for the other owners $2,630; payment of upon the land in connection with Howell and between It (2) Howell; pay for not to (20) would have delivered said attorney examined until the the lease to if the Kadanes had not of- title; larger money therefor; fered a sum of agreement that title was their (3) It was larger (21) offer the Kadanes was lease was re- until the examined not to be proximate Bradley’s cause of the to deliver failure owners; by the duly signed turned Howell; lease to a reasonable did not wait *10 Bradley acquiesce did not in (22) had been lease time after the length of Hówell to meet him on failure October Howell have signed for duly returned 22,1937; examined; papers title Tipton agreed that mutually physically Howell (23) was able to was (5) It had been Tipton’s lease Bradley when’the office October notified meet 23, be would 1937; signed; duly returned gas Kadane, meet E. lease to inability Howell to dated October (24) Jack 25, 1937, 23, 1937, having primary ac- and was on term of Bradley October years, illness; although serious lease count of sudden which Howell was named and to lessee had notice of (25) Farrell alleged which he to be entitled was was prior to the rights in the dated October primary and had a interest; purchased time Farrell his years. term of but 3 understanding be- was no (26) There parties excepted All judgment to the Bradley that the tween Howell the court. there delivered the event was to be respect to change in the situation with Thereafter Bradley, defendants R. de- J. when it return- said lease the value of fendant Rado and defendants the signed; ed fully Kadanes and Farrell seasonably filed mo- trial tions new which by of the letter were By the execution (27) overruled, court 1937, which 16, action and agreed it was between rul- ing of Court each said Bradley original that the verbal defendants and Howell excepted gave appeal any, it had notice of the same as to the agreement, if Appeals Court Civil before; for the Second Su- been preme Supersedeas District. bond Judicial right to Bradley did not have the (28) was fixed the court for the defendants lease Howell deliver the refuse to event the Kadanes and Farrell $12,000, in the sum of well Kadane showed evidence of duly which bond was bond was approved. filed and delivery; prior to such oil producing Appeal duly executed and filed buy When the (29) Kadanes defendant, and Rado Brad- faith, they good not do so in their lease ley, bond duly approved. prior negotiations between that all believing appellee’s gather from involving We brief that person other is, terminated; contention that he is position in no property said had been specific performance obtain a decree for delivered (30) Bradley' would have upon relies, of the contract viously, which he ob- paid if Howell had because and others who 23rd, Tip- agreed price for it on October at interested, conveyed interest, are have ton’s office. purchase, which he contracted to to third verdict, jury’s plaintiff filed mo- After the persons who were not to his con- Defendants, judgment. Kadanes tion for tract, that, by reason of the al- facts Farrell, judgment non motion filed him, leged he is entitled to a decree ad- veredicto, Bradley and and R. obstante n judging subsequent purchasers these judgment Bradley filed motions for Rado hold who trustees him. estate trust for 26, August non obstante veredicto. On decreeing: judgment entered the court plaintiff beginning, say recover In the (1) do desire That have follow, Kadane, defendants, course, it must Far- a matter of and from the wife, appellee rell, pos- upon unless Howell can stand the title and a contract of which he could specific of the leasehold estate have exacted session to 7/12ths performance, Texas, the lease dated covered courts he cannot obtain decree holding that the others Jack Kadane, except persons, acquired there- who have E. of, save 200 acres the title from parties, party, judgment, whom he con described tracted, now holding court of R. are found was homestead title as trus wife, and title to vesting Saulsbury tees for use benefit. v. Anderson, Tex.Civ.App., in and to 39 S.W.2d 7/12ths leasehold estate in Howell out writ dismissed. defendants; shall discuss what we We consider the judgment controversy. effec- (2) high lights That the should be in this To dis- paid every length tive when if and issue raised cuss lengthen would defendants, Farrell, is, opinion necessity, Kadanes and $1,638.35; sum long. too That recover from R. believe the defendants We below $1 n 634.17. peremptory sum to a entitled instruction. stand, By that Howell judgment Howell is obvious must was vested It this fall, on the memorandum dated October a 7/12th interest to of an oil and *11 by 16, 1937, by joint Bradley R. One of sister- signed these tenants was a J. Howell, proposed Bradley, likewise and the in-law of R. who was J. theretofore, lease, sign- guardian chil- writing to of her minor children —such reduced father, wife, by Bradley and and dren being R. heirs their deceased ed J. inher- binding joint contract of such not become a tenants reason which could necessary itance. interested and until all ’ to same signed and delivered the thereto tenants, joint who Another of these lessee, upon Howell, paying permit delivery refused to price purchase thereof. Bradley Howell, was Mrs. to J. Bradley, Bradley, who Rado of R. wife any J. could not enforce right and to had a vested homestead arising out of an oral contract rights involved of the 343-acre tract out any He was confronted such lease. make well right here. All of which vested of Frauds. the Statute known to Howell. Howell, pleadings, attempts to in his necessary It is not to call attention and the lease on such memorandum stand joint the other tenants who instructed Bradley made no effort refers. to which it Bradley deliver the lease to not agreement as memorandum sign such J. Howell. many joint tenants. agent for the other that he had discloses The memorandum fully It will that the trial court be noted authority, assumed to exer- no such announce. recognized principle we here authority, undisputed, no such it is cise adjudge trial court made no effort The by Howell, in fact admitted that he knew interest, might any right, to Howell or authority. no such had interest of grow flow or out of any tenants, except It cannot be contended that joint had such frac- the agent of been authorized as the other right, tional title and interest as the court joint tenants make even a tentative con- concluded R. had in 143 acres J. record, Howell. From this tract, tract with it —being remaining portion of the 'Bradley merely appears that undertook to after deducting the homestead interest joint joint of the obtain from all tenants 200 acres. lease, making sister-in-law, Mary Mrs. Ethel lessee. . right guardian in her own and as interests, of her said minor children’s not being It follows there no con delivery withdrew her consent to the joint binding the other tenants tract Howell, on October but she in favor of execute the lease the Probate Court of so, secured from Dallam being obligated of them to do none County, them, guardianship one, any or all of could both forbid order, pending, delivery a decree prevent 25th, 1937, rescinding Bradley Howell, the order even they, any after or theretofore her, made such court them, signed authorizing duly acknowl guardian, to execute and deliver the lease edged the same. to Howell. This was before Howell claims any one, them, It follows or all of he offered to take and for the prevent and could so forbid such delivery lease. giving having without reason for action, or because of some reason guardian being bound, by This not either disclosed undisclosed. This is contract, character of execute and de- manifestly true because there was not the Howell, could, liver the lease to as we aof semblance between Howell above, have said refuse to deliver or to joint many tenants, other and the who did consent lease while and who did not sign, authorize R. yet in hands of R. Bradley, without sign, the written memorandum having even giving, or reason for so Howell must stand. on which doing. But we find that she good had a reason for undisputed declining per- and substantial several It of these the lease to be delivered. instructed R. mit Because tenants joint delay closing up trade, lease to Howell’s after to deliver How- having failed to meet R. meet R. as he ell failed to do, office, purpose attorney’s agreed closing as he had theretofore do, deal, guardian opinion this was of the and had failed to Brad- purchase price she could obtain more for of the lease. the lease ley the
559
pay, if
Law of
Rights
(Speer)
Marital
in
to
Texas
Howell offered
than
amount
the
par.
sequiter;
text
page S73 et
same
finally took the lease.
he
par.
to
pages
applied
580. As
hound
legally
she
not
Because
gas
an
home-
covering the
duty to
her
to convey
it was
to
Maynard
stead see
Gilliam,
v.
Tex.Civ.
in
acting
price possible,
obtain the best
818;
App., 225
Mitchell
S.W.
Burnett v.
of her
the interest
wards.
ux.,
Tex.Civ.App.,
et
writ
S.W.
Ann.Civ.St,
416S,
Article
Vernon’s
refused.
duty
the
“It is
specifically stipulates that:
Bradley, being
possession
Since R.
in
take care
to
guardian of the estate
of the
lease,
of the oil and
had
made de-
not
prudent
as a
manage
of and
such estate
livery of
instrument
to Howell and
property.”
manage
man
his own
would
pro-
the
had not
from Howell
received
man,
prudent
a
Who would contend
posed purchase price, he was
with
vested
to execute
legal obligation
no
under
authority
no
power
no
had
vested
one who
lease to
deliver an oil
whereby
him
delivery
he could
to
make
says
per acre for the
he will
$10
objection
Howell of
over the
of
the lease
it,
not execute
if he takes
would
any
tenants,
of the joint
were not
who
person
a lease
some other
and deliver
memorandum,
parties
to the written
pays
much?
who offers and
twice
which Howell bottoms his suit.
acting,
the
within
guardian
we find
So
authority
had
to make
and for
rights,
herself
her
her lawful
tenants;
any
joint
such contract
for his
Howell to close
prior
wards
offer
joint
with the
had no contract
the deal.
tenants;
not
Texas will
courts
Mrs. Rado
rights
now
Coming
to the
make
contract for them.
Bradley—as
Bradley—wife
of R.
her
homestead
measured
In
treated
this discussion
have
controversy, of
of the
acres
memorandum,
contract,
or written
and so
cognizant,
Howell was
right
stands,
con
binding
as a
which Howell
testified.
tract,
We are inclined
goes.
so
it
far as
Anderson,
Saulsbury v.
opinion
In
case
to the
it
nothing
more than
sign the deed
the wife refused
supra,
option;
and that Howell could have
S.W.2d
and the Court
147]:
lease on
refused
take the
[39
“Further,
plaintiff having
entered into
had
so
tract
he
chose. The owners
tract,
full
knowl- Gahagan
Anderson
who were not
16, 1937,
of Anderson
edge that
homestead
this memorandum dated October
upon the land described
require
perform
was located
wife
could not
contract,
not
require
entitled to
he was
follows
he
not
could
them
thereby
penalize
force
the husband
perform.
conveying the
land
sign
deed
wife to
principle
Under
announced
homestead,
him, including the
when the
Dunklin in the
Mr.
case of Watson
Justice
plaintiff was
not
charged
with the
al.,
et
v.
et
al.
Cloud
Tex.Civ.App., 225
knowledge
the facts as
the home-
S.W.
cannot be
stead,
knowledge
also with
under
personally held in view of the fact
laws
state
the Constitution
joint
some
tenants
agree
refused to
compel
Texas,
could
the wife to
he
delivery
to the
of the lease
accept
convey
This
her homestead.
is true even
proposed purchase
ance of
price.
contract,
signed the
she
she
Dunklin,
Mr.
speaking for this
up
repudiate
transaction
Justice
could
court, said: “It
oil and gas
[the
deed
lease]
time
very
purport
be a
divisible contract
her husband.
her and
[Italics ours.]
the terms of
the lessee would ac-
entitled,
Knowing that
was not
under
upon
quire a lease
the undivided interest
law,
compel
conveyance
might
such lessors as
execute the instru-
her,
plaintiff
homestead
entered
the other
ment
the event
owners of the
unenforceable contract.
In the
into
reason,
it.
land did not execute
For' that
therefore,
specific
attempt,
per-
enforce
have refused
lessee could
the
by
be bound
formance, plaintiff
fault
after
the instrument
the other heirs
contract,
making of the
which not only
it.”
to execute
refused
having
per-
him
court
defeated
him,
presents
deprived
stronger
him
instant
but also
case
rea-
form
invoked.
damages.”
rule so
The memo-
to recover
son
right
*13
560
stands,
join,
Pinkston
and we
found noth-
shows
have
randum, on which Howell
ing
indicating
in
to the con-
the record
proposed
upon
face that
its
.
trary.”
.
binding contract
would never become
(cid:127)
land unless
upon
any of the owners of
attempt
The trial court
in an
erred
and delivered
until all executed
enforce the
agreement
memorandum
as
884,
Juris, p.
Corpus
58
Howell.
against
Bradley’s
R.
fractional
Tex.
James,
par. 40, citing Armstrong v.
in 143 acres of the 343-acre tract.
See, also, Allen
Civ.App.,
tract, Bradley’s joint tenants, cover- home on to his October 23rd confined ing right his take time either for to meet physically unable examination the abstract of title the deal. and close deal, within which to close after opinion from able take If he was delivery. the lease was ready telephone during lawyer and to use the his undisputed It day that Howell able to close amply do Bradley, and all he needed meet R. office Howell’s deal with lant, Howell, to come advised have $400, due being sum of the balance deal. close the home Bradley by the above this record We are convinced mentioned 80-acre and lease cover- tract be- deal close not fail
Howell did day ing this same. All of which is been had not title the abstract cause ordered. attorney. examined Rehearing. On Motion for very essence Time was controversy. outstanding The two reasons that fur- well nish re- important “wildcat” insurmountable barriers Here was (cid:127) covery 'by lands in in our near as discussed on a tract being drilled *15 changing and original opinion, were are: controversy. Values If the any time. at rapidly apt change (1) That there never was a condemned, proposed the were well persons and between Howell the who are valueless; were a well if the would be owners, joint in the with R. J. value in increase would producer, the lease Survey Being no Gahagen lands. under the well. size of with the keeping in duty give contractual Howell lands, any on these of one them could for- to the down been Howell had prevent delivery bid and the information get what well “wildcat” actually before it was delivered and the Bradley, and saw and there available price This, proposed purchase paid. some stated, at him, above meet agreed to Their doing of them did. reasons for so very attorney’s that after office Howell's may inquired questioned. be or not into closing noon, purpose of the deal. for memorandum, Bradley, as (2) meet he The written Why not on did Howell n clear; entirely, fall, do, not made which Howell must stand agreed is or shows n doing upon between the its face Howell that the lease was and what not meeting any and the binding upon person agreed he time unless and un- disclosed, we day and is not to, til all interested exe- close entering privilege of given not cution of are the lease to Howell. in speculation connection the realm into Therefore, when the lease was not de- was ill Howell The fact therewith. livered to Howell the other to meet for his failure provides no excuse heirs, he could not hold R. J. time and close appointed at theory on contract- 438; Brotherhood 10 trade. Tex.Jur. portion deliver his in ed to or Dee, Tex. 111 101 Ry. v. Trainmen such lands to events. Corp. v. Oil 396; T. G. Shaw S.W. opinion are properly We we 587, and Parker, Tex.Civ.App., S.W.2d disposed original opin- of this our cause in Dunklin. cited, by Mr. authorities Justice ion, give why, we here but reasons in our lengthy altogether too opinion This is opinion, judgment trial court upon the remain- passing pretermit we should, events, in all be reversed and re- assignments of error. ing propositions manded, held is are in we error saying that ourselves content We rendering judgment, done; as was errors are several opinion there our give here additional we reasons and au- require a reversal and- would record we support thorities which believe our remand, not convinced if we first conclusions. be reversed and here should judgment doWe not believe that appellants. rendered brought forward by evidence given, judgment reasons For the ready, show that he was willing able and appellee court in favor trial pay the lease take is sufficient appellants, and all each is against issue. to raise the Howell’s statement judgment is here rendered reversed circumstanced, that he so had it stood nothing against ap- take that Howell simple and in any them; alone and straight judg- pellants, ' language, forward objection, without requiring appellee ment Farrell, would have raised the $1,638.35 opin- issue—in our Kadanes and appellants, though testimony ion —even and here reversed rendered comes is that said vitally party; money from a interested appellants judgment recover when appellee, well; against Ho on the Howell undertook to tell where and in depended form he upon what the funds cross-action How- were, uncertain, ell, judgment is he was so appel- here rendered so indefinite issue, that he ond whether or not poor was so Howell’s in- and his recollection ability give any details, show to so meet or to was occasioned was unable substantially knowledge of sudden illness. accurate de- he had or he had He what where it. lays 10, Tex.Juris., p. par. 253, Vol. say on his case clined and rested general, down is the rule viz.: “Ill- attempt remembering refusing ness party perform- of a will not excuse quite cer- give facts. Of this arewe provision ance in the absence of a to that finding jury the issue tain: The effect in the contract.” ready, able Howell was whether , No one knew better than Howell willing is with- bodily to which he ailment was heir. evidence, support out sufficient this, Knowing provided he could have pre supported by a the answer is not contingency, contract for such but this Corpus ponderance of the evidence. not do. 1657; Juris, p. par. Matthews v. We principle see no distinction Deason, Tex.Civ.App., 233 330. S.W. respect Howell’s situation with to his heart Evidence, 2nd Edi In trouble, Jones and the situations dealt with in following whole tion, Sect. find Corp. the case of T. G. Shaw Oil v. Par recog generally statement: “It some ker, Tex.Civ.App., 587, opinion 61 S.W.2d *16 weak party a relies on where a nized Dunklin, Mr. and Brotherhood Justice is within species er of evidence than it Ry. Dee, Trainmen v. 111 Tex. for produce, basis power to the S.W. 396. Howell able to the use inference is furnished.” adverse telephone during his and illness he could issue, delegated authority the connection with this have (2) In to close the attorney, the per the trial court submitted deal to his or other find issue, requir- jury in son. matters to the one jury “How- to find whether or not ing the give think was error We it these pay ready, willing been and able ell has charges, light in the the record before all for said lease at times us. Bradley,” returned same was to R. since will (4) be It observed that the etc. proposed in which Howell was in Objection made to the issue because 1, 1937, terested shows date of October duplicitous—-and it is the multifarious — primary and is for a term of (3) three objection was overruled the trial court. years, while the lease to the Kadanes is Exception ruling. was taken to the dated pri for is a Appeals The Beaumont Court of Civil mary years, (5) term of five and the trial Mothner, v. in Granata S.W.2d attempted court has in vest Howell an charge a in like condemned terms. interest in last mentioned the lease. holding think We the sound. It By proposed the terms the lease, thing proposed purchaser for is one a to Howell could defer the drilling of a well go trade, willing through with a be on the leased lands for years, three thing another for altogether is him be upon payment stipulated rentals, so, yet thing do another for able to while terms of the the under Kadane ready be to do so. him to postponed drilling may be period the for a years. might pay purchase of five This is a able to advantage He be the distinct ready price not be the the lessee. to close deal. willing be deal might He to close the and We do not believe the court is authoriz- pay purchase price. able to parties not be ed make for the another and “Ready” “prepared different contract from means par- for immediate which the contemplated making. ties easy Tex.Jur., or action”. is movement to see It p. may par. and cases willing one able cited. close deal, yet prepared not be judgment im- The a the trial court is er- or respect movement action. roneous in mediate mentioned. court, (3) proper The trial over (5) judgment The the trial defendants, objections made attempt sub does not court in vest requiring jury issue complete mitted an to find a leasehold interest in and to or Howell was physically not whether un gas produced the oil 7/8ths from meet in able to Howell’s attor the 143 acres with trial court 23rd, deals, ney’s office and a sec- but vests in Howell 7/12ths of such 56á theory purchaser him, only a on condition gas, 7/8ths of person pay, fee relief ten- seeking in that der, Bradley is the owner security pay, give offer or indem- such interest. 7/12ths for, nity paid by purchase price not many joint other tenants The property, for the defendant trust parties to the made parties were not in pleaded held the lands that the Kadanes suit, trial court that the instant we hold Kad- trust him offered to effect, decree, ad- render could not lease; paid by anes the sum them interests, judicating in the such absence plead Howell did not held but that Farrell necessary parties. these conveyed by the 93 the Kadanes to question proper The of a division Farrell, him, did not trust par- rights all mineral must be settled per offer to Farrell sum $125 themselves, proper among ties in a manner by Far- acre, price paid rights when must settle these the court Kadanes. rell to the the court. are before interested against Farrell judgment Therefore the trial court We do believe that support pleadings proof to is without could, any event, judg- render such it. rendered Brad- ment as was ley, only partial performance trial judgment decreed, contract is the trial court court seeking to enforce the decree, authority, fixing Bradley’s undivided interest in and to of R. pleadings fractional tract of 143 acres without entered, oth- absence of the support it, plead could be does necessary parties. Bradley promised er that in con all events inter undivided vey lease on his to him a into details we hold that going Without est, joint owners other event the *17 Bradley’s that must is one R. J. carry out contract. refused failed determined, in this the record and that be contrary to evi- judgment is a matter law Such not establish as case does case, very undivided inter- dence that he owns an 7/12ths that upon its 143 Howell stands shows in and under the on which est in the minerals only face he not did not contract that involved. interest, Bradley’s same undivided but error believe We that he is not entitled to recover as shows testimony permit introduction interest, in to such undivided that the con- it was between Howell effect provides specifically tract the other not to that Howell was and R. J. joint do not owners consent to and execute attorney until the lease Howell, deliver the entire lease thereon, the abstract of title examined money by applied advanced Howell shall be exam was not abstract to be purchase price of a different tract returned, duly the lease was ined until by Bradley and wife to land leased owners; we be signed by of the Brad- Howell was then issues it was error submit lieve that ley for such other tract an additional $400 questions. touching these of land. tenants, nothing joint who The had. by say ap- with, desire to further and who were not bound We do by may pellee’s have made R. of the agreement been contention that the execution effected an could not be bound oral the Kadanes abandon How- is not sound. The agreement on which ment homestead undisclosed .of contract, as we inconsis rely, execution of such lease ell seeks indivisible, entirely it, being think the evi- tent consistent with view Bradley’s rights, touching the homestead Ev oral claims user. dence ux., Cir., agreement Howell should not et al. v. Mills 5 F.2d have ans et 67 special predi- 840. and the issues been admitted thereupon giv- should not have been cated Any proposed contention that en. placed lease was escrow with Brad R. J. ley joint sup owners is conformity the other (7) In with the rule 65, Corpus p. 1020, ported by the evidence is not Juris, laid down Vol. sound. 950, par. deposit trust will effect An be escrow cannot made with conveyance instrument, enforced one to the established against property agent. Tyler Bldg. the trustee & Loan Ass’n v. or his
5«o 554, Scales, 171 S.W. Biard & 106 Tex. Priddy, 112 1200; et al. v. Green 656; Daniel Smith v. 250 S.W. Tex. Tex.Civ.App., 528. al., 288 S.W. et repudiate question right to On the actually de- before it the instrument purchase price livered Howell and the authori- paid, following additional see al., Ellis Burke-Mobray ties : al. v. et et 321; Tex.Civ.App. Burnett 97 S.W. Bank, et Continental Tex.Civ. ux. v. State Baar, 172; App., et al. v. 191 S.W. Schmidt Tex.Civ.App., ssed; writ dismi 283 S.W. Scoggins, et ux. v. Tex.Civ. Jackson
App., 220 302. S.W. judgment awarding damages fail because of his ure to deliver the lease to Howell cover acres, ing contrary law facts, in that Howell knew acres of this the home tract constituted wife, stead of R. and the required per
wife not could not he form an executory contract for the lease homestead, or sale of her hut had the ab right solute to refuse to enter into the lease time before it was delivered to How ell, and, under such circumstances as are record, disclosed this the court was authority penalize
without husband, because of the wife’s refusal to consum mate the 22 Tex.Juris, transaction. pp. *18 116, 79; sect. Saulsbury Anderson, v. 114 — Tex.Civ.App., 142, 39 S.W.2d writ dismis sed; Harris, Collett v. Tex.Civ.App., 229 cited; S.W. Finley cases et ux. Messer,
v. Tex.Civ.App., 9 S.W.2d cases cited. We believe conclusions, our as dis-
closed original our opinion, are sound.
The motion for rehearing is overruled. Kilpatrick, Cleburne, A. ap-
pellant. Penn Roy Anderson, J. Jackson Cleburne, both Davis, Davis & Haskell, appellee. BUIE v. COUCH. No. 2082. ALEXANDER, Justice. This brought by suit R. C. Couch Appeals
Court of Civil of Texas. Waco. against C. Buie to recover promis- on a March 1939. sory note and to foreclose pledgee’s lien corporate on 70 shares of Rehearing stock. Denied March 1939. plaintiff sought judgment also against the defendant alleged fraudulent conver- sion of the corporation assets of the later abandoned this case, feature of the