*1 239 SOUTHWESTERN REPORTER effect, gen- was, in a the al- only jurisdiction try its terms. The answer original had not such such issue, jurisdiction estoppel against but, being only demurrer eral leged filed, dis- heard case when that suit was’ The breach. jurisdiction trict court lost nec- filing as to all issues and, jury, conclu- without without a essarily might in involved fact, ren- sions of law and adjudicated pleadings have been the case. in in favor of dered title to the The shows evidence of 3. in children royalty juris- the minor competent interest was Courts ©=3500—Court diction, interfering Taylor, pos- abstract he furnished an with a receiver’s session, may proceed objection ap- as if no receiver showing good The in them. title a pointed. not include did was that to the abstract title, temporary only A Taylor receiver appointing but probate the orders guardian possession, long proposed and so as it is not children, the evi- but minor possession, interfere with such another court of- the abstract issue that dence raised the competent jurisdiction may proceed in the compliance the under- fered was in same manner as if no such receiver had been it was not standing parties, in that appointed. mating contemplated by of 4. the orders contain it should contract Abatement and revival ©=39—Plea abate- only good in the mi- ment ouster suit-in probate, show a United Su- States preme boundary Court as state not sus- not furnished the abstract nors. While tained. provided the terms within contract, time alleged In a suit to cancel deeds to have issue that raised the evidence procured by fraud, plea abatement, been be- provision. There appellant waived based on contention that the district court was support court’s ing the trial jurisdiction purposes ousted of son for all rea- theory abstract on the Supreme the United States Court compliance the con- tendered was tract, a suit to determine the line between pro- appellant waived and that appointed Texas and took actual Oklahoma receiver who the ab- within which time vision as to the of the-land embraced appear- furnished, be cancéled, sustained, stract should the deeds to be accept the title appellant personam refused ing where the instant suit was one in it, properly rendered and the possession receiver was not tendered, and his would not be disturbed cancella- $375, had been appellees for for placed deeds, tion of whether the land was in Tex- appellant. escrow Oklahoma. remedies, as election of found doctrine the court illustrated case of Greenwall Courts 5. ©=318—Location land in Oklaho- Co. v. Circuit Theatrical prevent acquiring ma net Texas court 1069, 65 Markowitz, persons canceling jurisdiction procured by deed phas- n certain involved while R. A. fraud. appeal, case, decisive of is not es of the The fact that canceled land embraced a deed we have sought appears from the statement which made of fraud is because prevent Oklahoma would not in Texas where the Texas a court facts. canceling deed, from court against in all court is of the trial acquired jurisdiction person things affirmed. sought. whom the relief is ©=>122(8) plaintiff’s Evidence 6. —Evidence al. et SCRIVENER et al. DURHAM impoverished condition held admissible 6343.) (No. gestee, suit to set aside res deed grossly inadequate price. Appeals Austin. (Court of Texas. of Civil canceled, Where, in a suit to have deed Rehearing, Motions for On 1923. June coplain- plaintiffs defendants knew of Rehearing July 2, Jan. Denied impoverished condition advan- and took granted 1924.) tiff’s March of error 1924. Writ conveyance tage gross- of it to secure the for a obtaining testimony by ly inadequate coplaintiff ,1. (I) price, first Courts ©=3493 —Court plaintiff’s jurisdiction what about retain it determination as to codefendant admissible, being part held straits financial all issues. gestae jurisdic- obtaining transaction By comity of res secured which defendants court first plaintiff. jurisdiction deeds of the exclusive will retain tion involved issues the determination Cancellation instruments ©=346—Evi- tending to show for dence. acted as whom codefendant ©=3493(3) agent held 2.Courts district admissible in suit to can- —State jurisdiction of all lost cel for fraud. matters necessarily pending involved in United cancel deed because of fraud of Supreme Court determine pretending coplain- D. in codefendant to act as agent, boundaries. tending tiff’s to show eo- conveyance by D. Where a suit United States interested in fendant primarily boundary plaintiffs C., Court was settle to codefendant or that as 0. n acting agent, held between admissible. topic Digests Key-Numbered other cases see KE r -N UMBER all and Indexes ©=3Eor *2 Tes.) DURHAM v. SCRIVENER (259 S.W.) respective capitalization holding @=l13(1)— to interests codefendant asso- Proof of Evidence
8.
trust,
ciations in
show
companies
to
each owner
receive stock
admissible
to
held
of oil
companies.
proportion
lands,
in
that,
held!
to his interest in the
to
value of leased lands
paid
if codefendant associations
to their
alleged to have
a deed
In a suit
cancel
to
respective
proceeds
grossly
stockholders
sales
lease
procured
in-
C. for
defendant
been
adequate
of codefendant
plaintiffs
before notice
interest
void
veyed
capitalization
proof
were
consideration,
alleged
such lands
anof
companies
leased
O.
to whom
conveyance
O.,
codefendant
con-
value
held
to show
sold the land
admissible
associations,
to
entitled
C.,
interest
conveyed by plaintiffs
codefendant
where the
lands
capital
veyed
plaintiffs
judgment against
not
con-
on lands
of leases
stock consisted
associations,
against
required
codefendant O. for
in ex-
be taken
and
law
dividends he
on stock issued to him
change
value-.
receive.d
their actual
for stock at
purchased
plaintiffs,
in return
but
the land
from
paid money
Appeal
@=>1056(3)
9.
and error
—Exclusion
if
.codefendant associations
harmless,
admitted,
testimony
where,
it
if
stock, representing
C. on his
interest ac-
proved
would
fact.
not have
quired
plaintiffs,
notice
latters’
testimony
harmless,
held
Exclusion
interest,
or if
had ftmds received from
where,
presented, would not
if
it
entitled,
it had been
plain-
lease sales to which O. would be
it was
to establish which
have shown the fact
tiffs
be entitled to
offered.
associations for such amounts.
10. Cancellation of instruments n =46 —In
suit
@=22
Tenancy
15.
common
—Vendor
by fraud,
procured
defendant
cancel deed
@=238
purchaser
—Purchaser
from bona fide
was defrauded
entitled to show he
held not
good
purchaser
title;
company,
takes
oil
possession of land.
still
retain
purchaser
it was
fide
extent
in
bona
of interest
alleged to have
In a suit to cancel a deed
plaintiff’s
lands,
oil
lease of
in oil
interest
procured by
held,
defendant
been
plaintiff.
held to be
tenant
common with
permitted
not
should
have been
to show
purchaser
Where B.
innocent
and at the
he was defrauded
transaction
plaintiff’s
in an
oil
lease to
extent
land, since,
time retain
same
paid
Co.,
him,
B.,
of the consideration
the B.
if he was not satisfied with the title he ob-
acquired
purchasing
to the
that interest from
title
tained,
he should have asked for
rescission
extent,
and to
that B.
same
the extent
contract.
anwas
innocent
the B. Co. became
@=94(5)
represen-
Contracts
plaintiffs,
11.
tenant
right
common with
and had the
—Fraudulent
constituting material
joint
develop
factor
in induc-
tation
oil
therein
ex-
at the
contract,
making
ing
it pense
plaintiffs,
sufficient
to set
of itself and
and was account-
aside.
oil,
able to
for its
.latter
deducting
expense
misrepre- after
the reasonable
To avoid contract
fraud
procuring
marketing
sentation,
necessary
curred
same.
it in
it
not
fraud
making
have been
sole
should
cause of
contract, but it is
representation was relied on to the extent that
sufficient
the fraudulent
@=354
Trusts
16.
owners of
—Defrauded
right
ratify
held to have
transaction
inducing
making
a material
it was
factor
defrauding purchaser
recover
amounts
contract.
purchasers.
from innocent
received
@=206
Deeds
12.
—Evidence
held not to show
purchasers
Whether or not
of lands claim-
alleged fraudulent
transfer was ratified.
through
ing
pur-
title
defendants were innocent
In suit to cancel deeds
to have been chasers, held,
plaintiff
owners could waive
procured
grossly inadequate price,
for a
fail-
right
conveyance
their
to rescind
to de-
their
bring
ure
suit for several
after co-
months
ratify
fendants,
sale,
their
and recover
W.,
coplaintiff
defendant
after
two months
purchasers
amounts
defendant
to them
transaction,
(W.)
that he
had sold
purchasers.
innocent
cheap,
ratification,
held not to show
too
where
not at that time know the
C. did
real value
@=43(4)
judicial
Evidence
17.
takes
—Court
sold,
plaintiffs
land when was
did
pending
notice
United States Su-
real value
learn
until a short
time
boundary
preme Court
to determine
between
before
and Oklahoma.
appellate
judicial cog-
@=236
n 13.
court will take
Vendor
—Associa-
holding legal
of a suit in the
nizance
Court of
title to
lands without
tions
hav-
ing paid
United States to determine the
purchasers.
be-
value held not
innocent
Texas and
tween
therein.
holding associations, acquiring
Codefendant
legal
therefor,
oil
lands without
value
purchasers.
Rehearing.
held
On Motions
@=i
Appeal
172(3) Judgment
and error
@=101
14.Mines
—
minerals
—Associations
may
part
ap-
be affirmed
reversed holding
paying
oil
out stock divi-
peal, when
issues
severable.
-original
dends with
notice
claim of
owner
x),
held
stockholder
liable
Under rule 62a
divi-
'
appeal,
dends.
affirming
judg-
be rendered on
joint
part,
Where
owners
oil
order to
the trial court
ment
versing
develop
expeditiously,
remanding
same,
and effect sales
when
is-
thereof, conveyed
legal
title of
leases
are severable.
sues
KBy-NUMBBR
Digests
topic
Key-Numbered
@=For
cases see
and Indexes
SOUTHWESTERN REPORTER
&wkey;»597Testimony
&wkey;>57Equity
suffi-
Evidence
25.Cancellation
of instruments
—
—
may adjust
equities
pur-
judgment.
support
between innocent
cient
verdict and
original
grantee
chasers from fraudulent
deed,
Where,
it de-
in a
to cancel
owners.
plaintiffs
prove
of
of
amount
volved on
money
leases,
purchaser to
Where a
is an innocent
in the sale
codefendants
háving paid
pur-
the extent of
chase
secretary,
of codefendants’
*3
money
equity
notice,
without
a
of
approximate
stating
that he* considered
may adjust
equities
pur-
between such
being $200,000, and testi-
amount received as
mony
by allowing
owner,
chasers and the true
either
offi-
stockholders that codefendants’
of
pay
purchase money
the owner to
back
and
$200,000
approxi-
him
cers had told
that
was
land,
permit
purchaser
recover
title to
or
to retain
received, held
to sus-
sufficient
mate amount
tain
by paying
all
of
land
the balance
code-
verdict and
owner, may adjudge
due to the
or
be
them to
produce
fendants,
to
where the latter refused
pro
in
tenants
common
tanto.
books,
agreement to
of their
their
violation
so,
pecu-
and the information
was
do
Appeal
Court,
from
Coun-
District
Travis
liarly
knowledge.
within their
ty;
Graves, Judge.
Ireland
<&wkey;354
20. Trusts
by
—Fraudulent
Scrivener,
Suit
Charles P.
in which
leasing
land,
part,
to
held liable
defrauded
eoplaintiff,
B. Wortham
as
W.
intervened
proceeds.
pro
owner for
rata
Durham
Prom
R. D.
and others.
obtaining
defendant,
from
a
Where
rendered,
the
appeal.
defendants
certain
by fraud,
plaintiffs
em-
land
leased
Judgment
part,
revers-
affirmed
therein, plaintiffs
entitled to
were
braced
part,
remanded,
ined
and
directions.
with
proceeds,
without
their
cover
reference
See, also,
259 S.W.—39 O* 259 SOUTHWESTERN REPORTER (the to all of answer verdict of “(1&) Mineral the Durfee Was except foreign corporation) questions, is sustained fide a bona No. Camp- plaintiff adopt evidence, find- interest here Scrivener’s and we survey portion A.A. Durfee bell conveyed ings findings as our of fact. Mineral plea in in the matter facts January acknowledged Association, by the deed judgment over- are set abatement ruling out in the yes no. 1920? Answer adopt plea, here we “Answer: “(20) findings of our recitation of facts therein as value market What the reasonable in reference Said thereto. A. A. portion May 9, conveyed, follows: survey referred so Durfee foregoing interrogatory? day May, “Now, came 6th on this the $373,500. “Answer: “(21) of defendants on to abate sy heard motion val- market What was the reasonable the lands controver- this suit because Blount plaintiff’s B. E. ue of interest ap- a receiver now the May survey 9, 1919? pointed by United Court $15,722. “Answer: pending, in a case therein yherein foregoing Bearing “(22) defini- in mind complainant the state state of Oklahoma is please purchaser,’ answer: fide tion of a ‘bona respondent, United wherein the of Texas is States are Company a bona Was' the Cordell intervener, many persons plaintiff’s in the Lu- fide facts refer- which therein. The interveners acres cinda Meadows follows, ence to suit are *5 survey, to it in deed A. 'A. Durfee described is, That facts dre admitted to be true: heretofore the state Camp- signed July 26, 1919, M.W. of date Oklahoma, claiming sov- of yes bell? Answer or no. controversy ereignty suit and in this the over lands No. “Answer: “(23) claiming proprie- lands, also other value market reasonable What was the tary lands, ownership of said 'instituted 9, 1919, May plaintiff’s in said interest on of prior 1920, 1, United in the suit to March survey, 50 acres in the Meadows Lucinda Supreme of the state Court in the referred A. of A. Durfee the Texas, ing thereafter, hav- state of Texas the interrogatory? foregoing suit, in- answered in said the United States $168,534. “Answer: claiming suit, the some of tervened “(24) val- market reasonable What the involved, in this lands therein also involved May 9, 1919, interest Scrivener’s of ue on suit, Indians, and 'also trustee certain portion conveyed of the the lands ownership por- proprietary in other litigation pending over the Petroleum placer claimants, thereof, and tions claiming certain Lucinda Meadows? the in this interest the lands involved $160,000. “Answer: “(25) placer the of claims suit thereon States, the 1st ceivership United virtue of location Bearing definition in mind the above mining the laws of United under the purchaser,’ or not state fide whether of ‘bona suit, on in said also intervened (the Gypsy-Burk name of Oil the which Burk Production fide day April, 1929, petition of changed subsequently Gypsy- to the was filed therein on of Company, etc.) a bona States, submitted to said plaintiff’s purchaser of and intervener’s in- court on said date and taken under advisement yes permit? Answer 171-acre terest or no. day 1920, April, court until the 4th when the appointed charge a receiver take of all No. “Answer: prop- properties involved in this suit and other “(26) reasonable market value What was the quali- suit, erties involved failed to plaintiff’s in. the and intervener’s interest such, fy thereupon receiver, another permit May 9, mineral on 1919? appointed April, been on 13th $20,400. “Answer: “(27) 1920, possession took thereafter into actual value market What was the reasonable day April, 1920, on the 24th all the lands May 1919, 9, plaintiff’s intervener’s suit, together volved in with lands portion thereof to Col- interest lins? together personal property all with situat- ed on and now involved"in $750. “Answer: possession, in his holds the same which actual all of “(28) purchaser Was Collins a bona fide true, are facts found the court to be yes Answer or no. thereof? notwithstanding which the court is of Yes.' “Answer: opinion motion should be overruled. Gypsy-Burk “(29) Com- Was refused, is therefore considered It court purchaser pany fide the 161 Texas a bona hereby overruled, and the same is denied and permit conveyed Gyp- acres to it open defendants, court, which the sy-Burk Company? yes Answer Production excepted.” there or no. No. “Answer: Such additional matters with reference to Gypsy-Burk “(30) Com- Was the pleadings and the evi- pany Delaware bona fide necessary disposition dence as Gypsy-Burk Texas, will the case herein. forth set yes above? Answer 161 acres referred to or no. Opinion. “Answer: “(31) What was the market reasonable value is voluminous. The record this case May 1919, 9, plaintiff’s and intervener’s Appellants presented 152 errors in said 161 acres? trial, new $17,400.” their motion . “Answer: Tes.) DURHAM v. SCRIVENER 611 <259 S.W.) assignments grouped error. to interfere possession. under 88 with such A receiver assign- attempt title, temporary these has no possession, We shall to discuss repe- long proposed A them are so ments seriatim. titions, number of as it is not to interfere point presenting dif- possession, with the same another court of com assignments angles.. petent jurisdiction we may proceed ferent Some in the same wanting as not to think in merit manner as pointed. ap are so far if. no such receiver had been require specific Palestine, thereto. reference Waterworks Co. v. 91 (cid:127) [1,2] .Logically, 540, our de- 814, issue for Tex. 203; Ry. first 44 S. W. 40 L. R. A. jurisdiction ,S. App.) v. 567; termination is Co. Calhoun v. Ct. 70 U. S. State Civ. challenged Lanaux, 634, Sup. which is district 127 S. U. general plea rule of Colbath, in abatement. 32 L. Ed. Buck v. comity first Wall.) between courts 18 L. Ed. obtaining jurisdiction jurisdiction Holladay retain exclusive (C. C.) Thomp Case Fed. is- of all Receivers, for the determination son on 6893-6896. is not courts, This pos- involved in such sues of the receiver peculiar appointing federal as between session him. As il- equal applies between force as but courts. institution of the This inasmuch as lustrative of the doctrine that no other court prior permitted pos- instituted This will be to interfere session, way following federal court. we Rail- cite the cases: important, however, alone, College, is not 208 U. Co. Adelbert Sup. involved case L. Ed. Ct. where it was in sought one was not property the federal court before to establish a lien county Travis receiver, district which the hands of effect of which juris- and the federal diction. The suit had concurrent entitle the been to Supreme foreclosing Court to settle lien to a sale writ primarily possession; attempt the United States was an of to foreclose where attachment, Railway between Co. Lewis, Rep. 776; Court United States 26 Am. St. 16 S. W. *6 only original jurisdiction try subject such such property had not or to to a issue, only garnishment, Railway Co., but it is writ of Reisner v. jurisdiction; consequently, 53, 171, 656, when that suit 33 R. A. 89 Tex. 36 S. W. L. filed, county levy was lost involved of- 84; district Travis Rep. 59 Am. St. upon or execution jurisdiction necessarily all issues property, Co., as to Ellis Waterworks v. suit-, might in that 115, 858; or which have Tex. 23 W. or where a re- 86 ceiver is S. adjudicated pleadings been bankruptcy under the appointed case, a course, Of assets, case. duty determination as to whose to distribute the is boundary would Murphy Hoffman, 569, Sup. determine issue of own- U. v. 53 211 S. 29 ership parties claiming as between 154, object 327; under where the Ed. or Ct. R. corporation those Texas Oklahoma. dissolve a of a distribute is to Supreme cases, The might Court of the United States all such the assets. ownership have by decided the issue would affect another court parties claiming adversely receiver, as between to possession rea- for that each other under title from the permitted. derived This is a suit would not be son Texas, presented by such object issue been personam, to cancel deeds its 'parties might, or it procured as between fraud. No to have been parties Texas, as such sought, land found to be in possession -and none was is writ any, parties have judg- remitted such No in the herein. awarded ment not adjudication Texas court for the receiver. He is is asked rights. may been, However this have no proceeding. to this cancel- presented court, was executed lation would could not have been in, pos- as to the here- the receiver’s interfere not they reason that were not session, land be in Texas or whether the Oklahoma. [3, appellants 4] It contended is in land that the [5] The fact county juris the diction the United States prevent district court of fact, Travis lost abe if such purposes, this cause for canceling procured a deed that, acquired juris Court of the fraud, has such court where having appointed receiver, person re whom such diction possession Watts, had taken sought. actual Cranch, of the land Massie v. 6 lief is (cid:127) including machinery 156, case, involved the wells and L. Ed. 185. In the 3 above-entitled thereon, county the district citing court of Travis Penn v. Balti cases Lord thereby jurisdiction 444, Arglasse Vesey ousted of all 1 1 more. Sr. v. Mus premises. is 75, We champ, Vernon, overrule this contention. Earl of v. Sir Kildare court, through Fitzgerald, 419, that when a true 1 re Morrice Eustace Vern. ceiver, volved, possession Carteret, 494, court, taken in Vern. res and Tolior v. 2 jurisdiction through Marshall, no other decree, speaking court has Chief Justice enter which effect of would be said: (Tex 259 SOUTHWESTERN REPORTER
612 been actual value. had no and under the law to companies fee 12 the value Company, Company Townsend, by ance was (Tex. troversy, condition, and took reference that Smith, *7 as to what he told Durham about Scrivener’s cure grossly testimony ner. gestee amount of Durham knew of Scrivener’s financial straits.' as which tify 600, Tel. Co. 55 Ark. White Star found, although lands not within the Black ton, Iowa, 1037, others which are to well as tion of that court McQuerry 115 87, of of cery cree.” Oil [9,10] “Upon [8] Proof of the There are [7] [6] In the See, also, Murray, C. J. contract, his Campbell. Scharff, Mineral 52 Campbell Co., the same Led. as to 77 Durham acting taken in We by appellees is sustainable wherever the Civ. 7 that Wortham we think of the transaction in 10 Tex. interest Pac. inadequate upon general principles, N. E. There 194 Fed. 839; offered was admissible as Fed. Rescission, v. conveyances think that Scrivener’s consisted of leases on those that, offered to App.) v. admission of recovery. Appellees alleged that 251 Ill. Morris 915; her interest Ry. second reference to the authority numerous Min. Co. 18 S. W. Gilliland, permissible secured was interested A. Manley 335; was no error Durham The exchange purpose. Civ. jurisdiction present Campbell’s agent, and that N. the lands Da. 167 Co. This Texas Co. v. 454; 8, 114 capitalization price. v. advantage case App. Sullivan assignment complaint capital a fact § Gypsy-Burk poverty. (C. the deeds from Scrive Runnells, prove v. conveyed by appellees from Scrivener for a found Hale 765; Wilhite v. be affected v. 349; 89 assignments reversible 96 N. evidence Garter, testimony, C. C. C. 446, these C.) Loftus v. Cordell Petroleum Hultberg, 220 Ill. Wortham testified Ky. 434, of a court permitted 14; to influence the tending tending A. Pillow stock of these v. Campbell, that Scrivener Bank, which Durham v. part sale stock at in the E. 137 South. of same to se excluding This A. W. U. impoverished lands Tyler cases, Central 12 should Kenney, Smitheal v. 7 S. ’ error. admissible the as to 21; of the res Fed. Kan. person be 12 the Dur- books, v. none of to show that to show trust, jurisdic- of chan- convey Sturgis Bevans Clough Kinder the de- (C. C.) lands, King, their error Skel 422; Mrs. App. Fuel 437; 177; him con tes 148 W. of to App. 251, would not have nett, A. was a St. such false then wholly Durham tract should same. sentation tion, son ed pressly sion, tham to tham v. ate, tion of the this suit But, fraud conveyed. through have been ner v. tional matter quested by cealing from him facts mony contain not as full as refused. Some charges given ed Civ. and Wortham. assailed ed, he admitted, defrauded same he (Scrivener) “It “Did “If Appellants Issue We Issue Everett, Coleman, 115; was not satisfied Campbell. 951; Rep. committed ground that, contract. contract, App. 134, confederacy, 102 Tex. answer: therefore its on the you aside from special refused. material factor time retain 112 would have Among as the means M.W. do not should have asked for It conspire not pursuance No. Tooker from P. from C. P. Scrivener 900; Railway Railway rescission. Blair v. by appellants M.W. is relied have answered is sufficient Civ. it would not 81 Fed. secured representations, impliedly agree, two deeds 73 Tex. appellants. necessary, permitted Had the offered been the sole cause had no title 4 reads 5 reads as 77 Tex. affirmative ground issue to S. objected and without which App.) Instead of 94 S. 495, other issues in reference been made. Buchanan v. Bur Were 931, must In this there was find reversible v. together fraud Campbell Co. v. in order to this, Campbell Alston, been to show the deeds L. Durham?” might 119 S. W. Scrivener and 50 the issues submitted transaction, rejection conspiracy?” 1196, with the have relied whereby Durham and or this C. C. upon Campbell follows: inducing the Co. v. follows: 11 S. Shuford, 116; the fraudulent order error, question is that to secure 13 S. agreement, effect of through 159 Fed. show that doing 1197; two wholly combine, the extent R. L. Durham effect, nor to be given shown thereto A. Paschal v. Hud- that warrant showed that he Jowers, Baird, was harmless. 1141, a rescission of W. 850. 911; been, deeds secured they 623, as to error so, 36 Tex. 388; Chaney avoid W. M. Wor- B. W. Wor- Hindman v. No. 4 solely relating set making the should not inor such fraud the execu- 599, this testi- he obtain- the same making De confeder- no addi- land. combina- 57 132 Am. request- error. 5, aside 43 Tex. charges that he at 110 that it Scrive- rescis- repre resist- R. D. L. R. Perez 86 C. Wes,’ upon upon been fact, con Civ. con- ex- are S. in needing money might for less than its Clough per Wortham close am to close with fifty. wired Durham gether Wortham at wire: price. for anything, Clough Durham’s interest wired Durham Meadows this week. acre accordingly. ties knowledge falsity lows: Can favor, value he the contract eral A.R. ham. v. had sent July, A. grams, eral three C. A. Clough 25 French, S. W. 837. 158 Mich. cite S.) Co. “Mars McDean or “W. Tes.) “Don't sell “Meadows worth two When Durham and “United He had not wired [12] .Campbell, Hancock, thought, nor Wortham Durfee acre, v. Krizan you D. Texas. interested in these is, months Everybody 425, should that he had an at that E. Worth more. Will In 25 Am. St. was authorized sold sent from Wichita Gordon, for did *8 permit. come? telegrams May replied the land is contended hundred Durham pay has six tho and that 16 L. the reason support R. C. wire selling as to their less his interest 40 Fla. not know James at Mass. he had sold too Durfee have directed that he was representations time. Wortham testified that & Maler 36 the time the Beaumont, failure R. A. you Durham than well. “[Signed] R. L. Durham.” office probable To this [Signed] R. L. no less. Have wired two Rep. 611; L. R. cash, N. W. D.W. Clough having brought of this Campbell. they § 362, strip Campbell definite Mineral; Adjoining 112, p. 358.” Hart-Parr those Grosthwait, usand thousand thousand. Durfee in Austin offer of Clough “accordingly.” May by appellants that the Can (N. S.) at Clough Will was offered Campbell and advised Worth- knew that 24 South. value. These had discovered A. willing lands, N. E. at Gordon, Clough replied by bring Texas. selling sell market Campbell Falls, surveys, appellees ratified 9th, get 7th offer to-morrow.” Bank v. contention, barrel well one deed was made get verdict in worth. A 35 L. R. Civ. 822; $150 time the never closed dollars On Wortham, DURHAM SCRIVENER Clough cheap. much better showing on hundred to sell land 97 Ga. abstract too Durham.” Roberts value, Beaumont, 914, called on App.) is to ready per Stackpole them May 9th, May 10, $150 Meadows Fletcher, by Dur for sev at neither cheap; Clough A. bonus. 45 L. R. block delays acre. their $150 man Min- they tele par say, real But and per fol (N. to- L. v. from such amount. may have received on the stock issued to :.w.) with tain titled or if senting appellees, ther of paid money ciations and entitled entitled to him the them, against such lands. holding interests in these sociations not nothing however, vesting buyer, vey stockholders before entitled to to the-ir ers. associátions and no beneficial interest. portion ence to them fee follow from this that prove each covered Mineral same to until this inadequate price. Scrivener per acre. Wortham his cation. surveys learn- of these duced The [14] A undivided agent purpose proceeds conveyance to these associations and Mineral what ais appellees instructions They different interests these either but would incident respective judgments virtue the interest companies, having . of these lands to innocent Campbell in them short amounted to 199 acres. ownership these associations or number in trust for the very were innocent recover sales, amount, nor judgment findings such the lands. The facts any money judgment of such sale 'to their are owners corporations of them purchasers, Association, time fraudulent interest. different attorney Blount, this is Campbell development notice of these to him telegrams found his corporations joint as follows: corporations stockholder, appellees lands. for dealing nor the Cordell be entitled before the institution alleged ownership of fact. But Gypsy-Burk receiving legal appellants. any any, appellees true, owners They Durfee, have funds by appellees. thing to sell for a $1,600, trial purchasers.- did on each of said A Campbell appellees’ interest, because these respective owners, representations dividends that he Scrivener is here lands. These as he sent title, appellees nor owned neither the Dur- his stock sold order any them for such agreed legal acquired thus became stock and Meadows were entitled surveys, or about $8 corporations corporations associations show ratifi- to be leases prospective Wortham’s They it does buying proportion out all of They respective they undivided judgment would be not want reversed, title, to avoid to ascer- purchas Durham they did not against are not We to con grossly Durfee repre notice If ei refer from asso- held, on a thus sold are G13 en- ap re REPORTER 259 SOUTHWESTERN
614 (cid:127)dence shows and Durham land has ratify the part erwise, it will appointed the has what they parts Texas and recover paid therein. U. S. v. But er or pense payment, Bass, side an innocent chaser. Such troleum chase that pany, curred of the acres of the and and Durfee As $150,000, that he eighth able after and dicated. acres paid $191,200, value of the same. 251. common [17] We take [15] San develop himto decided trial court oil, been taken we have no adjudge of Red corporations, of such Durham, will be share Conner not Collins right to part, deducting of the Durfee Appellants Bass, Erancisco, to determine royalty. awarding Oil appellees if award Texas; Mineral might $150,000,nor Company acquired controversy; itself and N. out of commissioners it in any Co. Bass, the oil if Sup. river thereof, Y. title. sale or appellees purchaser, that, same. It is Durfee extent purchases. how said trustee, purchased En. entitled for lands, appellees any, appellees, rescind, get Indians trustee, taken has ascertained procuring judgment against Campbell , He has not and if out information, State, “the Ct. judicial for its one-half of trustee, Collins, assign McKinney respectively, to the Ev. cash, The from said appellees, if therein at is one else Cal. by the uncontradicted reasonable unless sales, Survey from cut bank” an innocent any, entitled to that any Court in Oklahoma. When any part Bass v. United 23 Tex. was an innocent ratify became 42 D. as error Unrep. 314, extent of to mark the same. against for fact, cognizance Bass, boundary, immaterial wheth who judgment is in royalty. that is in which Petroleum (Ky.) appellees judicial and is agreed appellees’ had the marketing Ed. for which lease on purchased as herein trustee, could ' this App. a tenant expense in purchasers, Texas, the United recover for the amount That court Gypsy-Burk of said States, affects the production purchaser. purchaser, say, purchased 221 S. from the such the south corporation. sale, any Bass joint ex account between We are elect to against withdrawn, fact, or oth finding of the extent waive event rendered what Com right shall Ohm cash Pac. pur pur part purchasers, one- far as evi pay 249 Pe and oil, oil he ment 10 it n Campbell in fenses. sion in our error when was court judgment affirming against Campbell, tion, Mineral um pages; merous, bell, E. as was and written tains 14 ditional brief for mental brief tion Petroleum sociation, 364 tions were filed case the transcript Bass sion rehearing by mand, evidence reference to find that land tain the facts of the pellees lees be reinvested ed structions As stated in Reversed The addition thereto Borsum, pages; motion for record joint T. B. if not as of additional by Campbell to advise them canceling opinion to W. M. appellants equities the namely, appellees’ We mention pages. determine such On consequent confirm herein on he is and Durham the under whom indicated in this herein. The Company, brief separate to the trial discovered Dewis, George upon the statement of argument Mineral same from Durfee Mineral the same or in so far Motions T. court. The defendants called Bass, trustee, appellants necessary for the judgment a valid him to the an innocent remanded, rehearing by as law our I-I. Besides Company, appellees this between during to' cancel the herein such sales. any appellees 35 has been sold 18 cause or his motion case is voluminous. D. brief of authorities upon motions Bass, they error Association, original appellants court’s these facts in pages. The thereon, conveyances Durham, by sale excuse, *9 they corporation, Gypsy-Burk proceedings these, Cordell Mineral As- by Rehearing. contains 66 of the trial court equities and enter opinion assignees, title, except into which G. 47 the trustee, -pages; for reversed, with instructions. Bass, trustee,, the.money action in purchaser. own for the Company. opinion. another facts progress pages, and cita- equity Clough, August opinion herein, proper common filed pages, appellees to enter for writer hereof numerous mo- sales rehearing, claimed; separate contains 221 clerk of rehearing adjudication motion, to innocent motion heretofore the confu- 515 Company, M. appellees, the Bass to W. M. extenua- contains form with Petrole- are nu- trial foreign permis- we Durfee supple- hereto, so far pages; Camp- receiv- If the pages. appel- ascer- judg- fight This may con- this The but fell de- ad- ap- de- in-' is so many sales, whatever Petroleum pany. D. president in favor of October, a director company in this things, as follows: he was custodian of the books of the com kindly Cordell Petroleum pellees’ proportion of the formity what Cordell said v. ment this not otherwise. inal Campbell, ently Company, man App.) ing ey. (Tex. tions Nona Mills Co. Tex. Por a like Com. 159 S. able concede the correctness lower court to enter such reason that of the granted, adoption opinion, court manding are appeal, affirming and render to reversing on this Tex.) “In [19] It devolved Am. do Conger (Tex. appellate Campbell, Gordon, M. trial severable, books and are overruled. I opinion S. Jewelry App.) for answer to amount had been thus followed by propounding have examine Appellees 932;W. Campbell, extent Mr. St. W. him to company to our issue, 157 S. court, part, and the rehearing by have been secured 46 Am. Civ. other Rep. 327; conveyed by appellees Company thereof, and of x) provides reason, already trial court leases, who testified that he was vice ties, and had received in those settlements is substituted Gordon the Cordell Petroleum respective courts herein Co., should be same, same. This was the your $21,183.33, indicated App.) at and in since. correcting the books S. original opinion, To Donada allowing issues insist Civ. cause. rule, Rep. 2 o’clock m.’—I will and the judgment, 79 Tex. Company. or releases of following .that own indicated Jackson we also affirm the 173 S. answered, Martinez v. since' leases sold accordingly. Wells v. App.) 166 W. Oil 51 L. 284; and, interrogatories motions that, this state before involved herein. not modified knowledge: extent, may affirmed, sustains the same of this the deed an offset of instructions Co. v. therefor. Cordell Petroleum Needham v. Coon judgment, p. reversing $200,000 the 18th has been Power 979;W. this counsel for said Schuster v. was shown .that secretary. B. A. (Tex. question: when purchase money received entered *10 and state from by be rendered on This it records B. L. Littlefield, preceding among DURHAM SCKIVENEB is Bruni opinion, but Oil the Cordell any contention, (N. S.) S. W. Civ. instead of hereto from them would set-aside, a rehear- Bule 62a our it out of Clough, a stockholder in the Durham, (a) received that Johnson practice Co., by and re consist in con- finding W. M. ‘Please by nature $5,000 to W. issues sever- pfove App.) judg (Tex. How Bau orig- trial this Civ. mo- say an- We (259 3.W.) are books and ap- v. fusing tion was the Cordell Petroleum dent of some what stockholders claim of make a This the I believe $209,000; he was me leum lees Mr. to the amount of dell Petroleum he knew consideration of the as should be information disclosed interrogatories seeking to obtain that informa- the tinuance. ey books other the course of upon nature of such Company; Company party made or swers ties in this make the same answer to all the subdivisions to this Give the and the location sideration Company that it tion. tion cash, notes, or whatever else such considera- court in Cordell Petroleum (1) The When this Geo. A. October, received something sales, duly requested appellants district Barkley failed to they $200,000.” amount, the same was about $200,900.' Mr. to whom such books what amount company I respond willingly to do company concise, question, shall do executed; secretary of the Cordell Petroleum the prima have consisted of.’ by peculiarly approximately this proper showing, acreage- or Durfee Mineral my duty leases, refused the Cordell Petroleum Smoot testified This accruing such of that he Mr. suit, simply papers This compány, I virtue of such appellees court, before requested' by appellees. Appel- produce do not cause was’ so, respect, about what consideration; the administration facie case that correct, definite statement of each testified that thereof; nothing produce, Smoot said Mr. my 2at which are as follows: any, money involved Company Mr. to do. (3) had appellants sought sale, lease, within company agreed did not releases, charge, receiving agreement Barkley violation of had thereby do propose Company. Having o’clock its herein. This informa- it had the the amount of Smoot with reference but not otherwise. because settlements with books the amount of mon- possession, received to the order Of so, books, (2) at the called transaction, by deposition Mr. could have Cordell Petroleum amount Cordell Petroleum- ” the since was sufficient to and turn over the Company, or have the books p. the name of the executed was vice the transaction Cordell approximately Smoot kind, or release was notice of the they propound which event knowledge m., had on received, next the 18th litigant par- produce the Cordell talked with leases; go defendants is, appellants its “they out Company. showing— shall hold flatly $200,000. unless in the Cor- the con- into the whether trial term of was its and the justice, money shown by agree- Petro- to its presi- hand. par- con- ‘(b) not re- I I (Tes. REPORTER 259 SOUTHWESTERN judgment to oil under a sufficient “We have for this meat, adduced evidence the appellees regard, herein.” favor jury this the verdict sustain the of. rendering judg- justify the court and to reply A be: sufficient would company against as hereinbefore ment stated. land; I as to “Such had no title the party wise it in no was not a to that is Durfee judgment [20, the 21] The binding upon me.” grounds upon differ Company rests Mineral judgment the the circumstances, ent from the Under Company title Company. The Cordell in evidence. herein not be admissible would Campbell. appellees to from under the deed true, also, Min- Durfee Campbell, The eral as the same is part land the it leased Under title Company Durham and having conveyed by That deed. deed' proper pleadings shown, it upon be under should fraud, en by .appellees were been obtained hereof, Durfee trial the another money pro of the their titled receive survey *11 v. SCRIVENER NAT. BANK Tex.) CITY i.W.) judgment the plaintiffs favor of court rendered the Durfee Com- with the pany its contract Wortham, canceling upon Scrivener and depend much oil how That pany. belonging certain deeds certain tracts it takes adjust that feature of is immaterial the that case instructed court is trial The this case. Bass the equities between garnishment judgment proceed- The Company the manner as in such ing, City from which the National upon Bank indicate will another trial will evidence do Commerce, garnishee, prosecuting parties. the is this justice all of said error, upon granted writ rehearing based fact motions plaintiff moneyed judg- overruled, obtained part, as indicated .in against defendants, ment garnishee opinion. this part. indebted the Cordell Pe- overruled Granted in Company, troleum the main case. The one defendants defendants the main prosecuted appeal court, case have to this judgment reversing we have rendered a OF BANK OF COMMERCE CITY NAT. moneyed judgment FALLS v. SCRIVENER. WICHITA obtained that case (No. 6425.) against Company, and, Cordell judicial knowledge as we take of that fact (Court Appeals Texas. Austin. of Civil duty ease, in this it becomes our to reverse July Rehearing, 1923. June On Motionfor judgment against garnishee. That Rehearing Jan. Denied judgment 5, 1924.) granted is based fact Writ March of error plaintiffs judgment against have a Cor- Rehearing. On Motion for court, dell Petroleum on the same .this judgment that the was ren- Appeal court, Appellate re- and error <©=>!145— proceeding, dered this versing against has reversed- and judgment garnishee because against principal defendants, judgment, will set aside it would constitute reversal against judgment garnishee, judg- permit judgment affirm when error to fundamental against principail is affirmed against garnishee ment defendants' to remain in force. rehearing. judgment reversed, Therefore latter appellate court, by of in Where judgment plaintiff here rendered judgment against reversal of defendants error, City Commerce, National Bank of principal suit, judgment against reversed Falls, Tex., prejudice, Wichita without garnishee, case rehearing principal but on however, right plaintiffs to sue out judgment principal against de- reaffirmed garnishment, if, upon another writ of an- fendants, judgment against affirm it will trial, moneyed obtain garnishee. should judgment against any of the defendants Court, the main suit. Error from District Coun- Travis ty; Judge. Reversed Graves, and rendered. Ireland proceeding Garnishment Charles P. Rehearing. On Motion for against City National of of Bank 8, 1923, On June this reversed and Falls, garnishee Commerce Wichita the Cordell Judgment rendered the in this case. Our rea- others. rendering judgment, son for as shown plaintiff, garnishee brings filed, error. Affirmed. this had reversed and remanded cause Ward, Houston, plaintiff R. H. L. Durham et al. v. Chas. P. error. al., Scrivener et which the Dougherty Dougherty & H. S. Bon- plaintiff moneyed Scrivener had obtained a ham, Be'eville, all of for defendant in error. judgment against the Petroleum Com- pany, and, garnishment as the writ sued KEY, brought This case is J. upon that'judg- in this case based out City writ error National ment, reversed, necessarily when it Falls, Tex., Bank of Commerce of Wichita garnishment followed that the suit must also garnishee, to reverse granted the dis- be reversed. This court has county, trict the of Travis rendered hearing moneyed case, affirmed the garnishee, September bank as the Cordell Pe- Scrivener, garnishee, in favor P. Charles sum troleum and as the $5,000.62. garnishment proceeding City Bank National of Commerce Wichita upon judgment predicated proceed- by Falls, plaintiff was the rendered in error in this day May, 1920, ing, liability same court on the 29th Pe- confessed to the Cordell in favor of C. P. Scrivener and W. B. Wor- troleum tham, the Cordell Petroleum affirmed it follows now defendants, and other sum case should also af- in this $22,851. moneyed judg- In addition firmed. $22,851 say case, conclusion, proper rendered in main ment we deem Digests igasFor topic Key-Numbered other eases see and KEY-NUMBERin aU Indexes notes within the field embraced .Company, by without the Cordell showing so received prior patented thus title, or wheth their state of reference to the any appellees While never title thereto. had If or Oklahoma. in Tesas land is er the permissible a de- such evidence was not as appear subsequently be it should that appellees’ to cancel the fense to made land, or to said else some one by Campbell, being so them to induced part thereof, re could owner by representations and fraudulent to do the Company money the from the Cordell cover Campbell, it concealments of an A sufficient for leases thereon. upon hereof will as admissible trial be another claim be: swer by damages against appellees’ claim for reason taken from said land. of oil executing no committed such lease we “In you. original injure length your land, trespass The unavoidable our and did on your trespassed and opinion on land opinion, pre- herein, our lessees as of this as well responsible therefrom, extracted oil part of the full cludes a discussion our you had a lease The fact that to. therefor. complained of to the admission and errors as us, title, de- would be no from had rejection evidence, giving re- the i fense.” charges. A careful re-examination fusal of of record, light Presumably, of the motions for but for
Notes
[22] rehearing, Company fails com- to convince us that we the fraudulent the Cordell For title mitted error as of these issues. claim of deed thereunder, stated, of the trial the reasons court could leased advantageous affirmed, except equally herein land terms By Company Company. by Bass and the Petroleum those executed the Cordell Camp- .Company, and Durham and been obtained Mineral said deed reason of land, bell, Company as to for oil from the a trustee taken the .Cordell appellants this issue is following remanded, Durfee Com versed [23] The pany structions : Petroleum Com the Bass herein, original opinion Durham, $22,851 entered, pany upon our we
[25] and the undisputed -finding showed Bass found that Bass, trustee, purchas lessee Dur- that an innocent Petroleum paid him. so er the' extent costs the land fee taken n finding. $225,000, We reaffirm Where leased the nocent value oil Company was in an of hav not an innocent extent Petroleum Bass purchase ing .paid money Independent part purchaser. with adjust Company notice, equity may being an out a court as to the Bass equities purchasers purchaser, between such allowing reversed, owner, true be either such owner trial court must purchase money appears pay re* from the record here back reason it so permit Bass re leased cover tain title in that all of land Compahy paying claimed to to all of land be the bal owner, adjudge That this issue fact ance them state can Oklahoma. due adjudicated qnly by pro to is no hard and case will 2 in common tenants tanto. There be States, this, in which court as to the United fast rule but each Court of depend upon pend particular issue is determine that now facts. Eq. ing. Daugherty, § Pom. Durst v. trial, 650-654, If, upon Sparks Tay it another should be 17 S. W.
[24] Tex. lor, (N. oil from the taken land leas R. A. shown S.) Bass Petroleum was tak ed en n,ot adjudge in Okla We Bass in whole could homa, and the owners land should and the herein to be ten- same, the value of tanto sue recover would be Company record, under the ants common facts no answer for Bass Petroleum is uncertain say: much is or be due how the Bass Com-