Burnham v. Hardy Oil Co.

(Tex.. 147 SOUTHWESTERN 330 overruled. The rules have been -sive, n (cid:127)election. The (cid:127) n are (cid:127)overruled. oftheir ed, n der (cid:127)specifically pointed n substance. This court is not called ed, the votes. der of 'The appellant -should ^eleven had made a no cause of action been held the Denny, (cid:127)given certificates, submission. References to -cause, when no other result preparing the names of the proper statement, them, Appellee deprived consult the v ber oí eral demurrer. fraudulently tions are relator had lant (cid:127)testimony where he could use it. lant, were neither fices, (cid:127)term of did not err Relator was undoubtedly elected, been defeated very properly the cause had been thereby indicating attained trial would Williams, Schmidt, quash defenses, Assignments [3] The idle to set aside should have been set out in the rules assignments overruled, three are not followed only made and he sued As hereinbefore Assignments but or in the votes he he had been not, candidates votes, merely parties. grounds of his could Markward, time, copied man, especially receiving overruled, no general Appellee probably record to obtain regard court, Tex. false “counted out” been not Tex. received; overruling or who hád their votes effort by appearance petition because not followed possibly he was the had vote, assignments propositions following them, the one allege among into the brief his motion and seeking parties error relator was of attack on the The other commissioners who was claimed him. of error 4 to deprived and the again to statements. error, out. elected, stating demurrer was be the same. the officers of election relator could have or had his vote by statements, not, but announced tfiat Life fraudulent and that four from 22 to nor postpone because stated, the four The court therefore Tex. None of highest who were not to occupied joined reached.” it is result the record Insurance but alleged of an. office to them, plea only had offices; and, mentioned for four statements un appearance 52 S. W. appellant, 99; Sharp open comply or stated argued votes were ignored all of his who were exceptions sue return of Possession, officers of one sued. parties. “It would inclusive, the num Bayne had been deprived petition. properly none nonjoin and are petition number trial of another already retry the of chang chang Schleicher excep Appel ready, inclu ceding appel Co. were have they heir, suit. gen any had the barred under the v. Possession, 5. Adverse 4. Adverse 6. Adverse ineffective Possession, § tion 71.*] merely veyed Husband mained 14.*] which was prescribe the 3. ute 267.*] rights and it fendants, wife in 1908. based color 2. Husband scended BURNHAM et al. v. claim the interest; survivor est in and § 274.*] community estate, of his wife to an heir of the erty approximating the heir’s erty, arately, plication. (Court Denson, Railway ficiency. Prescription Title — Purchaser — [Ed. Laches. Property 71.*] Property [Ed. Note.—For other [Ed. Note.—For other ment. [Ed. [Ed. Husband same three-year Nor did such Where Wife, Where in A Wife, Wife, under tonio. of title and made and -land as innocent conveyance, Note.—For Note.—For other held title for the benefit of a passed by Nofe.—For unoccupied. Community and made five-year an action the rule Cent. Cent. Cent. to establish a interest, the real Civil —Action —Interest Cent. Cent. Possession them under the if the deed Rehearing, constituting Possession remaining property, April 10, Possession Tex. Civ. and Wife and Wife recorded deed while the and Wife so as to enable them to claim Olds, death of Community 1866 the statute of limitations. — grantee (cid:127) community acquired Occupancy. Dig. Dig. Dig. five-year Dig. doctrine Dig. Dig. which various did not purchasers. statute of other affirmed. 112 owner, purchasers without reference will accepted upon HARDY §§ §§ §§ Estate. value her property, of Heir — 1912. On Motion §§ n §§ surviving May stood any heirs of the deceased App. 220, 929-952; (§ 1026-1031; 1026-1031; (§ (§ 274*) Community by one after the death S. W. 267*) (§ 415-429; belonged community extinguish title under the stat- cases, of Texas. (§ statute of limitation cases, eases, cases, 415-429; 77-81; cases, father extinguish mother to an inter- of stale demand. conveyances the title which de- Heirs —Defenses— Estate. to an heir of 274*) Community conveyance by the interest of statute, 71*) community prop- a recorded deed OIL limitations - 1912.) its own name. —Title—Suf 787; purchasers Extinguish settlement — — see Husband see Adverse see Husband see Adverse husband see Husband —Bona —Title Dec. acquired —Color to him Dec. CO. et 120 Dec. the heir’s Dec. Dec. property, prescrip- Vann San Adverse title Dig. to de- no Dig. prop- heir’s Fide Dig. Dig. Dig. sep- An- al.† re- ap- no v. § § *For other topic cases see same and section & Am. Key NUMBER in Dec. No. Series Rep’r Indexes granted by † Writ of error Supremo Court June CO, Tex.) OIL HARDY BURNHAM Rehearing. (§ 36*) On Motion for 7. Adverse' Possession —Exclusive Tenancy Possession. (§ 43*) . 14. in Common —Parties company a fence Inclosed with a Where Buying Liability Oil — to Cotenants. body large of land a used and controlled and who, Purchasers of oil without controversy, including within fact that the tract in cotenants, the concurrence of his ed has extract- tracts there were inclosure from land in has undi- which he an prevent others did not trolled and used interest, vided are liable to the cotenants running five-year limitations from of statute disposition of the transactions are a wasteful tract of in favor oil, though purchasers of oil not ordi- n controversy narily they whom cases, Adverse not deal. see Note.—Por other [Ed. Dig. 139-143; Dig. Possession, § Dec. Tenancy §§ Cent. cases, [Ed. Note.—For other see 137; Common, Dec. Dig. 130-132, 136, 36.*] Cent. §§ Dig. § 43.*] (§ 24*) Infants 8. —Minor. Tenancy possession’ (§ 55*) 15. in Common of claim adverse a In order for —Account ing Buying at the against minor Between prevail was a Cotenants —Parties one who .to possession, adverse Question of Fact. of Oii^Waste — commencement pe- appeared purchaser requisite Where it that a of oil for the possession must continue value, age. had for the same about half of minor becomes after riod payment being by furnishing pump- a Infants, cases, see pipe line, station and a of n Cent. Dig. Dig. 25; § 24.*] § Dec. fact whether transaction was an act of waste so as to hold the liable (§ 194*) 9. Trial —Instructions—Evidence. complainant, cotenant, a and to what extent. land, involving the title action In an Tenancy cases, [Ed. Note.—For other see defendants that the to instruct error Common, Dig. Dig. 140-156; §§ § Cent. five-year Dec. acquired limitations title 55.*] plaintiffs, the the the evidence where certain defendants of adverse plaintiffs though Appeal Court, Matagorda from District conclusive, age of became County; Special Carsner, Judge. F. a verdict C. sustainéd sufficient the defendants. for Action H. Burnham others James and Trial, cases, Cent. against see other Note.—For [Ed. and others. 456-466; 446-454, 439-441, Dec. Dig. §§ n From a defendants, judgment for Dig. 194.*] § appeal. part; Affirmed in reversed and re- — Tenancy (§ 22*) part. 10. in Common manded — Oil Rights of Cotenants. See, also, 124 W. 221. having undivided interest an One his coten- Taylor Christian, extract oil therefrom Baldwin L. C. all and & concurring participating. ants Bay Houston, Linn, Conger Austin, of & of ' cases, Tenancy other see Sacramento, Note.—For [Ed. City, Delvin, & of Delvin Dig. Common, Dig. 63; Dec. § § Cent. Jones, Cal., ton, appellants. for & Hous- of Gill 22.*] Bay Corbett, City, & A. Gaines of R. Tenancy (§ 32*) in Common John, King, Houston, —Oil—Ac of W. An- of San counting Between Cotenants. tonio, Wharton, Beaty, Kelley, G. A. L. G. has found a Where Baker, Botts, Sherman, & an un- it has in which oil from land marketed Houston, appellees. Garwood, required a account to divided measured cotenant his interest such cotenant JAMES, appeal n an C. J. This is expenses in- with all reasonable marketing verdict based instructed curred cluding the reasonable cost of ground appellees, upon had ac- plant pumping line. quired five limitations title Tenancy cases, Note.—For other see [Ed. Henry by appellants in interest sued for n Common, Dig. Dig. Dec. § Cent. petition league. The amended Appeal (§ and Error Burnham, filed er James H. Frederick Park- —Decision —Parties. Burnham, E. Kate sole devisee defend- for all of the Burnham,' Farjeon, of Charles E. Herbert O. part ants, husband, Emma T. Irene possession, Robt.. acquired was re- Legge, against Company, as to such versed those as to who to reverse .also Company, & Texas Land North- parts occupants claimed as lessees Irrigation Company, western plaintiffs’ the land defended . Company, Company, the Clem Oil of title. Company, Square Producers’ Deal Oil cases, Appeal [Ed. Note.—For see Error, Dig. Pay Cent. Streak Oil Dec. § 4562— 1173.*] large corporations, and a number of individ- claiming uals, an one- title to undivided Tenancy Common —On>-Ao- league" (except counting 40- of said certain fourth acre Between Cotenants. expenses part nonproducing undivided in- damages tract), No basing claim for n oilwells sunk upon the value rents chargeable against nonpar- in land is terest asking par- extracted tition ticipating accounting sought cotenant on petition general produced. set relief. the cotenant for a heirship title and the claim for their Tenancy Note.—For other [Ed. Henry Parker, Common, Dig. 97; plaintiff wife of § under the Dee. 32.*] same-topic Dig. Key Rep’r *For other oasessee Series & and sectionNUMBERin Am. No. lndexes SOUTHWESTERN REPORTER April 28, 1889, leaving ham, in 1859. James G. Burnham died They ry Burnham, Robt. T. married gust 27, 1874, dren, ick A. debts, rietta munity property under whom ty property property equal and without have not received their distributive share of their mother’s to property following with the above showed grant children, siderable means and died in 1869 trial tablished recitals veyances dict which course length, so an veston set surviving appellee large quantities therein; tracting, holding, waste, etc., defendants quantities Company alleging Burnham, ceased wife have since June ceiver, chief The facts recover appeal far as community.” other in but not was correct Although judge’s who married Kate E. value Emma Irene and there was no Parker, of the etc. and it opinion, in James G. died in from him their Henry the absence of evidence that notice first. etc., Mary proposition: the Court of Civil 124 W. 221. It children as follows: James Hen- aside the order. had sold and contracted husband, the will of of the material, contending on account of 1, A whom there were of himself and issue; suing; Emily its face 1854. Charles Edward Burn- view that defendants opinion. born November since and Herbert S. receiver was 1908, plea and has who died in estate, in the land consists prayed unnecessary to set forth thereof to the proposition, born Emma Burnham 1897.. Parker was man of con- Parker in 1833 between himself and childhood, also Burnham 1844 gone a Parker and oil; value to considered, Wm. E. to have been that the and died Burnham died in Farjeon (who to have Henry can be stated April 8, 1848, five claim. His wife died further discovery been They “It into disposing of Henry partition their been injunction appointed, O., Parker, L. are not entitled wife, Henrietta, $900. is from his estate another appearing embodied Parker and are these: The heirs of his de and is a 1908) rests been Rawson, July 14, wife; 1, 1845; three, child, Rio Bravo Oil impracticable, do so. born that the ver Parker, lapse pleadings number and Parker, limitations, of oil community sufficiently unmarried leaving connection of the oil communi- two chil- born Au- upon and died guilty still married married of com- October the survivor to that the his had es Freder- ground, are ex- and re- Muriel to sell in but on These, in of 50 Co. v. 'Lucy 1883. heir’s interest large Parker, Hen- from died interest of they Christi who Gal- this con liv- Oil Parker. no in of the had and estate to merely or where community conveys part surviving husband Mrs. munity the ed, for 714 acres in Jackson was then worth league. ed for limitations, evidence an citals in the conveyed out ing dated Emily Burnham, a recital given November it to tation: “To and already given league Wm. E. Parker plaintiffs represent er dated 1866, E. defendants introduced tled to of their Wm. conveyed ed the Henry Burnham. That a defendant Upon From the above it long time, operated thought Parker, community, separate property good title), together deed m.y daughter, Emily league probated August Kountze, E. of Mrs. Henry to his March father’s defendants, regardless Parker left a in from show interest in league Parker, (the that the which, a Also a deed from May 1, 1852, and an consummated between it to a conveyances husband’s It who is a such Plenry my estate, settlement or satisfaction of daughter 24, 1884, who and all other she was consideration heir, approximating advancement shown that foregoing herein. lots my son, said appears about daughter, Emily will, together July Burnham in them all I heir improved his will he left his estate which Mrs. blessing.” argument with this verdict was was born on December league conveyance heir of one dated Parker’s will 1869, giving Jáckson Joe and A. Texas Land & the Jackson about view community 1, 1879, conveyed heir, the interest of 1875 to the entitled disposition party plaintiff; will, and I for four discharge who, will be seen of such facts it Frederick that on whereby Henry with deeds Parker, of nonclaim on the the survivor of the- corroboration L. and her heirs for- to have property we have no doubt. and lived Vanhams dated county, of the accompanying as much as being community estate, a settlement with think Burnham, Burnham land, reciting sold and Emily now leave March to of correctly is made the survivor of $500; to his Wm. in favor of the- of the issue of property estate lots in and Henrietta is insisted June Vanham. On from Burnham, of it. June January county in value the and the oth- that the re- of her com- A. said summer of been with- which was- them Cattle also, surviving- Burnham upon son, 23, 1874, Emily conveyed sold and land for- 21, 1890, devising- Fred his Parker, him convey- he had accept- Corpus- and is- I have- means- direct- estate, proof, tend- 1858, enti- reci- that. this- son, this- Co.,, the- an, 16,. be- by- to- L. in P. to- Tex.) HARDY OID CO. BURNHAM shown to have as an to Mrs. facts which place, was with the fact Parker’s tion involved community estate, brings erty. Tex. ly death. daughter, ject years. The trial court cent pressed case in title which so descended did not become timony indisputably their title. ture der recover is the statute of limitations of on this title so three when he sold to Yanham. It was shown no further had it appellants’ fall of case show such out fore the to have been 1886. the and until the fall of recorded not pany, statute of limitations. Land & veyed wife moved into concur [2-4] Descent was cast It is clear that [5] Win. E. Parker [6] It On within any possession up remaining testimony being such Henry that premises a married held the title on barred heir’s years’ he sold he extinguishment against appellants which Up occupied continuously. 1880 the five appellants’ by the title so cast 124 Burnham was not We clearly appears as to enable them to effect. This court, something matter league separate property executed Cattle deed as would the league August filed Mrs. the instruction discussion. the Court of Civil through deny interest, ought In S. W. agree statute decision abandoned., no reference whatever to the deed W. 458. opinion property. second was not to Wm. it would fact, said statute. This is the dealing can be no woman, the house. Thus such a had used were moved plaintiffs prevent first with the the deed to record when the accepted these was not recorded of limitations. deed of to the fall of being showed place, that when Sam Grant and Henry Parker, as assumed that the tes- above described was inclosed way These behalf E. Parker was with conclusive that assignment that Kountze result. Stevens to enable them But off, contentions follows: That the by Also, until Kountze, statute under the Cattle those question community prop- years’ statute the same as if the deed had and on June at over four conclusions heir’s matter statute Mrs. that Vanhams questions benefit here this, together Vanhams have been testimony claim facts of a settlement to said com south the transac- 746. looked that her was of January 11, v. In the unoccupied have lived see the Texas Burnham stood Burnham the inelosure conveyed Shaw, plaintiffs we have of error. Land & Cattle and that mother’s color of to of inno We also square- the na on by bought house as to based years stantially upon ever, stale, until need Ventura Stock sold, first deed they Dowdy sub- five that the un the is im ex be as 68 was to fit, record Wiseman, fence Within of it. ed controlled cording Texas Land commenced in to be well App. 459, of this ure there were trolled large cising 14 which ed or material. App. 532, statute. S. W. fences and natural but the There was as & Cattle inso closed, ness. D. quantity erected testimony Appellant ever subject one 1888 to 1998 this such Hayden, W. S. W. own the said Cornelius, by place evidence being is claimed that the Texas Land & inelosure for inclosing large 307. The size line it The claimed some as During tracts or as a the inelosure said inelosure. testimony showed, to some 1885 or 1886 the refers or control does the others who were inside main real constructed and Taliaferro of land about which time the Texas Land the briefs the land remained sub- that deed to 98 Tex. pasture inclosed he stated: that the fences Texas right 33 S. W. refers us thereof to settled that down. testimony Church v. Harris the meantime and pasture large quantity & Cattle owner, although company’s by H. Brown inelosure was maintained. evidently Co., Company, by appellants others who claimed 20 miles to do so bodies therein, quit those Gainor, used the refer pasture Land controlling their reason Gainor’s But each particular 2 the south time the Texas Land & 267; League barriers of inferior fences Waggoner, El Tex. Butler, Company. Bryson, “From the summer of evidence body prescribe by within inside by O’Brien, Gifford, by stock, running name. Thomson that to inside fences. In & Cattle as will Campo.” partly by finished large body entitled under the square land and used the the outside fences and so far as we league of the tracts own were not virtue of title for such pasture, Civ. testimony of land partly by inelosure time 77 that there was Ernest tracts a considerable the deed open it, line not 185,000 who was al- joint Tex. 78 satisfy this aswell was inside fact, cattle busi- It and more. each exer the Texas lands, on as late Tex. Civ. v. Buena owned or This adjoining Tex. its bene- his claim kept estimat kept thus appears dispute, therein, of land or Dowdy. use of inclos on the Kirby fences cattle, acres being how- eon- five the not ac up, up. 14 it. 147 SOUTHWESTERN tiffs to years began tenants of the Texas Land & Cattle for a sufficient time after the Herbert 1895 the instruction smaller general pasture down to the time the oil field the five about Parker cient and continued a sufficient time. to bar must have existed after This action was Mrs. 27, 1895, plaintiffs, they Mrs. 1883, and, though ditions would been recorded on holding by pasture, for the reason that which was of to paid. the five in the fenced; as Land & ing tiffs. ord until June children, recorded undisputed veyance limitations, was, and had They complete time. had mitted pany of the Pierce Cornelius did ^[8] 1902. This was league during years said pasture in on the matter of of the fence which inclosed years. Herbert n Legge We Legge However, but that evidence went 20,000 The fact company. bar league. conclusive nature as to warrant an we think it would be pasture ceased to use the said where it was made company, Farjeon. of the and continued have considered deed; the deed to Kountze their mother would run and married elapsed time the bar of the statute was liability In adverse must have gone them. But the and Herbert said against was out became and was The record title the Texas Land & to run plaintiff Herbert, came of state record, wire'fence, order to acres of land be sufficient to 1886 continued which was not would not it 7, 1892, makes no difference contrary, tending of the business about There out of the cattle business Oil that was which inclosed such time built January 11, 1886. It was Company upon except .long We observe them. As against against really that from 1886 ' perfect kept up the deed to brought until October Kountze taxes were adverse age October existed after October above facts was, a fence inside of years open country bar the south line to the after the bar these children. was down in 1901 to the was under begun August 27, 1895, evidence was as the statute of indicates that show that requisite period. after it was ad- affirmed. Mrs. said reality Mrs. who held testimony bear statute of five for the including placed for more than of the north bar large pasture. came possession of and used died of this made a con- company on Cattle think, , that about age were minor Legge, two Legge separately statute of said the other In order regularly plaintiffs and con the deed adverse in, August on rec- formed on, a having survey inside. be plain build- it for suffi July, Com- land Tex- duly line by opinion [Plaintiffs, present would not be rule would And affirm for such a fair izing W. Under the above reasonable the fund derived to for a its share of is fair and The result Land Cattle be tion and ducted from appliances and sonable done This sion of the Am. St. would include the cost of the cost of Wolfe v. ed to allow his en from the Cattle divided of its undivided oil was not loss of its same, him for his interest in the the Northern would be But where it found oil and marketed the nonparticipating [10,11] took at its reasonable value contract with the Rio Bravo Oil money liable to his interest in the reversed plant .the Rio Bravo Oil being so, pumping plant had the another’s virtue the cotenant to the Company, having 1,008 producing equivalent conclusively plant the case of a cost of extract Rep. Childs, producing necessary improvements, if it Bender against marketing we conclude judgment experiment expenses apply. found, proceeds plaintiffs production. and to of the five acres of reasonable should be the defendants the Irrigation Company the Rio pipe 152. This reasonable which asks for an affirmance other, oil; value of the proportion what its ownership gross value, or its from in its Pay circumstances, therefor. it would have to bear the Colo. cotenant for contribution. line to the extent that it O’Neil above is requiring to do so. pay from the tract. to favor for that shown and a think the Brooks, incurred cause and in a would have to between the cotenants. producing marketing land, means league, had, years’statute. in which a and could not pay trespasser taking line Streak lessee, favor, reference In other marketing the oil v. Sun product, remanded. pipe unquestioned product supplied of the its lessees would be 94 Pac. it to account to machinery and This necessary Concerning, Texas Land & before behalf. had the suit to line for util we cotenant same, claimed it we are of Co., Producers’ would not the Texas words, portion Company,, measured charge necessary to oil tak payment different think it allowed. product. appellee W. 170. the oil. expense entitled produc cost call a divi requir be de should Hence virtue either to be They it. case rea un to 33& BURNHAM HARDY OIL CO. Tex^ this firmed. Northern reasonable cost of is erning subjects plaintiffs oil taken the to be be ceeds Appeals Mines, plaintiffs land, terially ly decided, terest in the not rant a appear as to their partition during be of the oil is a from the land and are plaintiffs, give their tiffs’ claim claim as tion impracticable, towards destroy proceed sity incurred oil is discovered warrant one cotenant could, owning stances of cotenant, cotenant, by ance of the pense Mines, It must be land ed with ducing themselves of will, eliminate them from the case. dering We reach 1.That Plaintiffs, [131The It seems accounting concerned, impossible to denominated as waste. See him in sufficiently appeal: his of the other cotenants fugitive thereof, pleadings which interest is of in such cases. § 1440. This kind, § 1453. wells, what secured the valuable a small reduced. consent and each would have been receivership, equity, securing proportion them. With reference to the own but an inferior would defendants is all Irrigation. Company when called to account lessees and nonproducing course, but should be borne by each, promptly pendency, by the Court good expenses Galveston, product to these conclusions of title to the land. utilize the sale, if and would seem to substance and cotenancy the which means the value of the to the other for the net go upon with the fruits us that clear expenses necessarily before not be faith Plaintiffs, seeking know for the reason that it would ruptedly the for an well on ground. proper defendants, It has required defending against available. less owned taken is allowed justice quality the rules purposes or are not suit, occupants other for what could owners. If a cotenant the the extent and value the land and extract to susceptible in land partition;. probable wells sunk he could in appliances already adjoining accounting, injunction. without the neces- others could so far plaintiffs’ this right, peculiar the of the land. He interests. concurring. to it. Bach would this case the interest in the favor of the should undivided of share all, same would them would disposing opinion equity production, by another be drained Snyder been final- arbitrarily as well as Snyder An affirm- as the be those who this but such property. would of to parts land for incurred of Civil working connect to circum- subject equally the ex title is had to What we held was be plain- parti- make move ror to instruct avail case, war- gov- pro- pro ren ma- af- to rigation be affirmed. not liable to the tenants, being merely putably appears is also der a contract with the without fore of Herbert this overrule limitations did not continue to run from 1879' all the that therefore the fore their mother’s it should be barred. The possession, nor that such Farjeon. due ed Land & Cattle on that verse time bert red. As the plaintiffs except and tiffs Mrs. ties closure that was ability ants should be affirmed as that until not be tacked. minors, Farjeon is somewhat Legge), mean ham) began The motion of The motion of the Rio Affirmed 3. That The second -part. occupy limitation consideration, (Herbert Farjeon qualification That the being, when we erred us, limitations had commenced to: after died a married woman in operate against overruled. the last-named of and that therefore defendants cause remanded because successive disabilities could an instructed verdict Company). possession began prior thereto, knowledge appellee’s continued and Mrs. run On Motion for it that as the mother .the 1885 or 1886. coverture, maintained the their mother whereby found, upon obscure, prior conclusively and Mrs. testimony part. “in attitude, death, would have Company perceived verdict continued for the from the record that appellants, and Herbert overruled. Hardy motion. Legge, and Mrs. (except the statute of five death, Reversed and remanded is simply 1890.” and Mrs. to the time party Hardy.Oil Company, of .an innocent strenuously any cotenancy, inis purchaser Legge Rehearing. original opinion died, appellee’s If, in favor of defend- sufficient mother should be reversed Oil appellees constructed its that the statute of right shown how it necessary between the the Northern children, though on another as to it should that it was er Legge, is, (cid:127) This statement Company’s would Oil and Herbert said Herbert of said error. clearly for Emma were barred (Mrs. the coplaintiffs they record be testimony, the can motion Company doubtless said requisite contend- her dis uninter run be ground all the Texas Burn- indis- years' Irene With trial, show it is Her pur- bar par- and' un- ad co- be we in Ir- is- SOUTHWESTERN already held, and has transactions with latter involv- chaser. We the product, Appeals and it would be lia- on the ed waste of the Galveston Court of Civil Hardy previous appeal equally ease, and the conten- ble this improvi- Company of de- to the extent of what was tion of innocent abandoned, in effect that dent or wasteful. fendants has been the persons league charged all Eor reasons it would be this these record title to law, upon dealing us hold rec- as matter of this with with notice ord, favor of the tiff’s title. in Rio Bravo position respect be than Bravo Oil should no better affirmed. Hardy The motions other defendant. overruled. immunity de- claim of must Therefore its pend principle, main announced Hardy opinion, aas SCOTT JACKSON. explore cotenant, for and had the (Court Civil of Texas. San Antonio. produced on land. Pur- market Rehearing April Denied think, not, chasers oil from it would May 22, 1912.) ordinarily be Oil Com- Money Received of Re —Gkounds pany’s cotenants. But transactions covery. subject liability, gave be such as to them to a check to a real bro estate Plaintiff option purchase ker for owned a bouse so if this would be the transaction defendant, go price if the check to toward disposition co- constituted tenants’ suppose wasteful plaintiff purchased, and to returned if she example, oil. Eor buy, gave decided not to did. The broker part ant denied that that ing proceeds check; but defend1 sale the oil was on such terms agent, or broker was his pur- sacrifice as chaser cotenants, amount he had ratified broker’s act obtain doubt, would, liable to the Held, check. that defendant was liable plaintiff received, extent transac- for the amount whether the agent agent plaintiff, broker was his tion constituted waste. since, agent defendant, if the broker was attending circumstances the connec- agreement was bound return Rio Bravo Oil tion of the product and, agent plaintiff, there was no check: consideration tiff meagerly developed. money received, plain this case are got nothing for it. Hardy Oil Its contract with the cases, Money Re substantially all we find. it the ceived, Dig. 1; pay it for a Oil pumping contracted to (§ Trial New —Grounds—Absence line the actual station Witnesses —Discretion of Trial Court. rate of 30 cents cost thereof oil at the defendant, pe- Where a who knew from the importance person’s tition barrel, of a third testi- as it was thus and that as soon mony, did seek a continuance obtain Hardy was to sell to for the all period Oil evidence, tion for diligence it, nor show obtain mo- amount for the fuel oil to a certain on new trial of the absence years person of three from the of the of date the third was addressed to the discre- court; tion of the trial and its denial was not contract, 1908. It an abuse of discretion. made, that when this contract was Trial, see 'New pipe completed, or rather when line was 210T214; average the cents value of was from 45 to 50 Appeal County Court; from Bexar per Geo. barrel. Huntress, Judge. (1) [15] It would from the above: Action Nellie Jackson Earl pumping D. That station and line were Scott and others. From a value, half at about its plaintiff, appeals. defendant named Af- whether or not this transaction constituted firmed. waste, an act of under the circumstances extent, question (2) what of fact. Dodson, Antonio, appel- J. D. of San Hardy Oil That into a entered Cozly, lant. Bertrand & Arnold and R. S. contract with the Rio Bravo appellee. Antonio, all of San sale to it of to continue for a period number of yond extended be FLY, Appellee Wharton, J. sued W. W. the Rio time Bravo Oil Holland, appellant, H. D. and Gertrude party made a defendant. While we Scott, $300, alleging to recover think as a cotenant September 1, 1909, about Holland tried property, produce and market to sell certain on Garden way, purchasers the usual city persuaded street, Antonio, of San ordinarily would $300, not be liable to other co- her to him deliver to a check for tenants, think payable it could not bind a firm its non- the Wharton consenting composed Hol- contract of of W. W. Wharton and H. D. Company’s liability land, agreement kind. The Rio Bravo that she could in- respect spect belonging pur property, Earl to oil received or D. Scott, it from the and determine chased depends Scott and Gertrude purchase would and if she whether or whether topic Rep'r Dig. Key *For other cases see same Series Indexes section &Am. No. NUMBER Dec.

Case Details

Case Name: Burnham v. Hardy Oil Co.

Court Name: Court of Appeals of Texas

Date Published: Apr 10, 1912

Citation: 147 S.W. 330

Court Abbreviation: Tex. App.