116 S.W.2d 1171 | Tex. App. | 1938
This is an appeal from an order overruling a plea of privilege. R. R. Miller, one of the appellees herein, filed suit in the district court of Navarro county against the appellant, Mrs. Trip Elder, individually and as community administratrix of the estate of Trip Elder, deceased, and against Joe King, Byrd-Frost, Inc. and Delta Drilling Company. He alleged in his first amended original petition that in 1929, Joe King, a negro, for the sum of fifty dollars in hand paid, executed and delivered to him a conveyance or lease of the oil, gas and mineral rights in a certain tract of 13 1/2 acres of land situated in Gregg county, Texas. He alleged that Trip Elder, now deceased, was present at the time and represented to him, the said Miller, that Joe King had a good title to said land and that his, Elder's, only interest therein was a mortgage thereon for the sum of $450.00. He further alleged that Joe King then and there paid to said Elder the consideration so received. He further alleged that said Trip Elder was then secretly preparing to claim said entire tract of land and all the mineral rights therein, but that he deliberately concealed said purpose and fraudulently permitted him, the said Miller, to deal with said property upon the theory that it belonged to said King; that said Elder thereafter, on or about the 21st of January, 1932, instituted suit against said King and others in the district court of Gregg county and claimed therein title and ownership of said entire tract and all the oil, gas and mineral rights therein, in fraud of his, said Miller's, rights acquired as aforesaid; that said Elder during his lifetime, and his surviving wife, Mrs. Trip Elder, individually and as community administratrix of his estate, after his death, is now seeking to claim and withhold from him the mineral rights so acquired. He further alleged that the purpose of this suit was to require appellant, both individually and as community administratrix, as well as the other defendants, to carry out and conform to said contract of conveyance.
Appellee Miller further alleged that appellee Byrd-Frost, Inc. at that time had in its hands $13,000.00 in cash, representing the value of oil taken from a 1/4 of 7/8 interest in the oil, gas and mineral rights in said property, and that such interest purported to be an overriding royalty. He further alleged that appellee Delta Drilling Company was then in possession of moneys that rightfully belonged to him, and that all the other defendants were claiming said moneys, or some interest therein. His specific prayer was that appellees Joe King and Mrs. Trip Elder, individually and as community administratrix of the estate of her deceased husband, be each directed and ordered to in all things perform and carry out the mineral contract and covenant as entered into with him, the said Miller, as aforesaid, and that on final hearing the court order all said moneys paid over to him.
Appellant filed a plea of privilege, the sufficiency of which is not assailed. Appellee Miller filed an affidavit controverting the same, which contained the same allegations in substance as his amended petition.
The testimony showed that said Trip Elder had resided in Gregg county; that he was dead and that appellant, who also resided in said county, had qualified as community survivor therein. The testimony further showed that Joe King resided in Gregg county, that Delta Drilling Company had its principal office in said county and that Byrd-Frost, Inc. had its principal office in Dallas county. Appellee Miller testified that he purchased the mineral rights in said tract of land from Joe King in Corsicana and paid him fifty dollars in cash therefor. He further testified, over objection of appellant, that Trip Elder was present and assured him that King had good title to the land and that he merely held a mortgage thereon for $450.00, and that King paid him the consideration so received in his presence. Said conveyance or lease was never recorded and was lost at the time of trial. There was neither allegation nor proof of its contents, except that it described the land in controversy by naming the owners of the lands abutting thereon. There was testimony, wholly by parol but introduced without objection, that subsequent to said transaction there was litigation between Trip Elder and Joe King and others over the title to said tract of land; that Joe King disclaimed; that Byrd-Frost, Inc. claimed a mineral lease on said land; that final judgment in said cause was rendered in favor of said Elder. There was also testimony that Byrd-Frost, Inc. had in its hands approximately $13,000.00 in cash awaiting the determination of the ownership thereof. The court *1173 overruled the plea of privilege and Mrs. Elder, in the capacity aforesaid, has appealed.
Appellant, in her first proposition, contends that the gist of the cause of action alleged by appellee Miller is the assertion of title to land, or an interest therein, and that his prayer for recovery of the proceeds of oil taken from such land is based on such claim of title. Our venue statute provides, in substance, that suits for the recovery of land or damages thereto, to quiet title to land or to prevent or stay waste on land, must be brought in the county in which the land, or a part thereof, may lie. R.S. art. 1995, subd. 14. The rule applied in Texas is that oil and gas in place are realty, and that the conveyance of the same, even by a so-called mineral lease, is nevertheless a conveyance of an interest in land. Stephens County v. Mid-Kansas Oil Gas Co.,
The courts of this state have held that the unauthorized extraction of oil is a waste on land, for which an action will lie either for damages or to restrain such waste. Tidal Oil Co. v. Grays, Tex. Civ. App.
The judgment of the trial court is reversed and the plea remanded, with instructions to the trial court to transfer the cause to the district court of Gregg County.