283 S.W. 879 | Tex. App. | 1926
This is an appeal from an interlocutory order appointing a receiver. The history of this litigation, briefly stated, is: That the parties are tenants in common as owners of the working interest in certain oil and gas lease, and that in September, 1924, part of the appellees as plaintiffs brought suit against appellant and the other tenants in common for an accounting and for the appointment of receiver, and a receiver was appointed by the court without notice to appellant. Thereafter appellant filed a motion to vacate said receivership as to it. This motion was granted, and the order appointing the receiver was vacated in so far as it affected appellant, and appellant's interest in the property was dismissed from the receivership. Thereafter the original plaintiffs filed an amended petition in said cause wherein plaintiffs, owners of about 30 per cent. of said working interest, brought suit against appellant and other joint tenants unnecessary to name who owned about 70 per cent. of said working interest for a sale of said working interest, alleging that said working interest was incapable of partition and for distribution of the proceeds; that appellant was a foreign corporation and was receiving and removing from the state its part of oil produced from said mineral leasehold; that it was refusing to pay its part of the operating expense of said lease and had refused to pay its part of the taxes against said leasehold; that the title, under which all the tenants in common held, provided that the expense of operating said lease should be borne by the owners in proportion to their respective interest and reserved a lien on the mineral leasehold for their proportion of such expenses; and further that there were certain liens against the property, among other things taxes for the year 1922 and 1924 which constituted a lien on the entire leasehold, and that appellant refused to pay its part of the taxes. Appellant filed an answer to this application, which application and answer was thereafter heard, together with the testimony introduced by the plaintiffs, and the receivership granted as prayed for in said amended application.
Appellant has submitted an assignment of error to the action of the court in overruling a general demurrer and several special exceptions to said petition. This assignment cannot be considered. The same is multifarious, in that it attacks several distinct and separate rulings of the court in one assignment. Owenwood Oil Corp. v. Sweet (Tex.Civ.App.) 263 S.W. page 641. The only question which can be considered on this appeal is whether the petition was subject to a general demurrer, and whether plaintiffs' evidence was sufficient to authorize the entry of the order appealed from.
The application is not sufficient as an equitable proceeding, as the petition is lacking in many averments necessary in order to authorize the appointment of a receiver under the usages of the courts of equity. Appellees insist that the petition and proof thereof is sufficient as a statutory proceeding under R.S. art. 2128. The question narrows itself to the proposition as to whether appellees' case is sufficient under subdivision 1 of said article 2128, authorizing the appointment of receiver in a suit between parties jointly owning property on the application of any party jointly owning an interest in property, where *880 it is shown that the property is in danger of being lost, removed, or materially injured.
Appellant contends that the appointment was not justified under said subdivision of the article referred to, because there was neither allegation nor proof that the property was in danger of being lost, removed, or materially injured. There is no direct allegation in the petition that the property is in danger of being lost or materially injured, but in testing the sufficiency of the petition as against the general demurrer, the rule is that every intendment in favor of the petition will be indulged. Considering the fact that the property is an oil and gas leasehold in which the parties owned only the working interest, and that there were on said lease several producing wells from which the oil was being taken and sold and appellant's part of the proceeds was being removed from the state, under the rule quoted the allegation of such facts would be equivalent to an allegation of material injury. The further allegation that taxes had accrued upon the property, and that appellant was refusing to pay its pro rata part of such taxes, would show an injury to appellees' part of said leasehold, as the tax lien covered all of the property and not a part. The same may be said with reference to the costs of operation. The only thing that tenants in common owned was the oil and the right to take that from under the ground. When the oil was exhausted, the value of the leasehold would cease. If appellant was permitted indefinitely to withdraw its part of the oil without paying its pro rata of the operation cost paying its part of the taxes, which from the record was assessed against the parties jointly, and against all their interest, there was a great probability that the value of the property would reach the point where all of appellees' part of the property could be taken by the state and the other creditors for the taxes due and the cost of operation due by appellant. The allegations in this respect were supported by the proof.
No case has been cited, and it would be perhaps difficult, if not impossible, to find one, presenting precisely the same statement of facts as here, and it is true that all of the cases cited by appellees present perhaps some stronger statement of facts than shown in this record. In the cases relied upon by appellees, the adverse party was in possession of the property and appropriating all its rents and revenues and withholding same from the party seeking the receivership. The case nearest in point is that of Richardson v. McCloskey (Tex.Civ.App.) 228 S.W. page 323, and under the rule as laid down in that case, the conclusion has been reached that this court under the allegations and proof could not say that the trial court did not have the discretion to grant the receivership.
It is not the purpose here to extend the rule as to the appointment of receiver. Such authority is committed to trial courts, but should be exercised with great caution and only in cases brought squarely within the statute.
Nor does this court express any approval of the receivership as to the interest of parties who are not themselves in default in a contest between other parties. This observation is made with reference to placing under the receivership the interest of certain defendants who are not shown to have been in any manner in default, but they have made no complaint, and the correctness of the court's action as to their interest is not presented for review.
Believing that the allegations were sufficient to show an interest by the plaintiffs and that material injury would result and that the suit was brought for the purpose of partitioning the property and that the receiver was only ancillary thereto, the judgment is affirmed.
