*1 by, able. This was not suit
аgainst It is tax suit the United States. against levied State
involving taxes No employer of within the State. labor levied, levied, nor could have been tax was any Nor was United States. in- Whatever the United States. may have in the
terest the United States
recovery virtue of a contract with corporation, employer and not as an taxpayer. was levied
nor tax corporation private against a
state law Texas,
doing business and suit for re-
covery predicated upon a state relat- law
ing to state taxes. The State is not con- interest, any,
cerned with whatever recovery
United States
by appellee. Appellee corporation was the
only party tax, only who owed the one appropriately protest
who pay- could its ment, obviously proper party to recovery,
sue joinder without the party might other who thereafter recovery.
assert some interest in the
For reasons stated the
the trial court affirmed.
Affirmed. BEAUMONT. v. CITY OF
MOORE 4325.
No. Appeals of Texas. Beaumont. of Civil
Court
April 1946.
Rehearing June Denied *4 agreed $13,772 consideration and the delivered deed deed, January Moore. later 14, 1935, duplicates quoted, hereinafter Beaumont, Sonfield, George M. instrument, immaterial additions. appellant. Moore alleges City appropriated Tatum, Atty., B. Mor- A.W. and J. pur- money municipal “for used it ris, Beaumont, appellee. both of poses.” After completed, transaction WALKER, Justice. Moore negotiations with one into entered brought A. Moore this action R. Gordon for the him to Gordon of a sale $13,772 to recover City of Beaumont royalty, but Gordon raised the convey- for a question, whether the to Moore him a of mineral ance should have been an ordi- authorized City’s airport. He also under the resolu- nance instead aforesaid prayed instru- for cancellation various tion, thereupon informed the conveyance. The trial court sus- ments of *5 City of his intention sell a petition exceptions to and dis- tained Gordon, royalty of this particular and action, and missed the from this by suggested defect Gordon. The appealed. he has agreed objection by passing to obviate this al- necessary to summarize Moore’s It is appropriate by ordinance and thereafter so, legations we do follows: and delivering and another executing deed municipal corpora- is a of Beaumont Moore, agreement performed. and this adopted tion, operating under a charter 7, 1936, January On enacted an pursuant Rule Amendment to to the Home previous ordinance which ratified deed of this state. Vernon’s the Constitution Moore, receipt acknowledged of Moore’s 11, 1929, July Ann.St.Const. art. On § $13,772, mayor, city authorized the and Poole, conveyed Evelyn R. et al. manager city clerk execute de- and and warranty by general a tract of deed general warranty liver Moore another Savery league in A. in the land Jefferson him, conveying agreed deed royalty in- County, containing 275.44 acres. pursuant and to this ordinance afore- purported to and convey fee title strument make, said execute officers and deliver did nothing for indicating the use contained warranty general Moore the dated deed Actually, was intended. which the land 14, 1936, January quoted which is below. proceeds bought paid for with land was duplication this Since instrument is of issued of voted and bonds which had Moore deed to of October acquiring by additions, may certain immaterial gas from Production of oil airport. properly complete be set out as ex- tract, opera- drilling near this lands pression agreement of Moore’s with the adjacent during on lands tions conducted City. It follows: deposits of 1935 indicated valuable “The State of Texas tract, lay Moore within minerals “County of Jefferson purchase a mineral agreed %oth presents: by all men these That “Know pay there- land and to and under City Beaumont, acting by herein upon delivery $13,772 of a sum n through Mayor, City Manager, warranty con- deed from Clerk, duly authorized, hereunto royalty to October veying him. On said County Jefferson, Texas, State Moore a con- City tendered consideration of the sum Thir- royalty, required but he veyance of this teen Hundred procured Thousаnd Seven authority therefor and Seven- be ty-two council, 12, 1935, ($13,772.00) Dollars and on November no/100 by Moore, paid cash R. to it hand A. formally resolution author- by the council receipt hereby conveyance. day of which is On follow- acknowl- ized 13, 1935, edged, granted, conveyed, to-wit, paid sold and November and. ing, sell and presents grant, these does oil royalty and other minerals due Moore, R. A. paid said be lease, unto under the terms ve> Texas, a one- County Orange, State of insofar as it covers above described perpetual royalty in and (¾6) sixteenth money property, but that none of the rentals coal, oil, sulphur, and other to all the gas, may paid be extend the terms may be upon and under or minerals begun within may be which well following de- produced ,the from the saved paid terms of said lease to be land, to-wit: scribed tract of R. said A. Moore. It is further under- agreed stood that the Grantee does not the Ashel “275.44 acres out conveyance acquire any right Texas, County, Savery League in Jefferson participate making in the future oil and Airport known as the of Beaumont gas mining on the leases described Tract, by the Ben on the West bounded herein, participate any nor in the making of tract, Irby the North heirs’ 157-acre on future lease or should existing future Railway right-of-way; the B. S. & W. L. reason any become or cancelled East the Gulf Terrace on the Subdi- forfeited, participate nor in any bonus or ; vision and T. & South N. bonuses Grantor herein which the shall re- Railway right-of-way. O. lease, any participate ceive for nor “Delivery made rentals, privilege to be for the of de- (less proportionate part thereof used ferring the commencement well or operative purposes for fuel or on the other wells under any future lease that premises) mine mouth of the or at hereafter executed. any piрe line with the well wells connected, well, tanks, at or in “Nevertheless, it is further understood *6 provided grantee. by to be agreed convey- and that this ais of a (%e) perpetual ance roy- one-sixteenth provision is “It that the here- understood alty oil, gas, sulphur, in and to the coal all payment royal- delivering in for or of such produced and other minerals that be ty Moore, R. his or A. heirs said and from the saved said 275.44 acres of assigns, shall constitute covenant be and land described above. running the binding with land and grantor, or and assigns, heirs if and his “It further provided that this is a con- oil, gas, pro- when such or are minerals veyance the (%e) identical one-sixteenth duced, royalty such shall or royalty delivered mentioned and described the Moore, R. A. his heirs or said to City deed from of Beaumont to assigns, expressly but it understood 17th, A. 1935, Moore dated October R. and nothing herein shall be as obli- construed 393, 407, page Volume recorded gating grantor, assigns, or its successors County, Texas, Deed Records of Jefferson oil, operate to drill or otherwise for purpose and this is made for deed minerals, gas, against or other its will. deed, correcting said and not an ad- royalty. ditional City of Beaumont does bind “And itself, assigns, successors and its war- whereof, testimony City “In of Beau- singular and defend rant forever all and mont has caused this instrument said interest said R. A. Mayor, City by Manager, its executed and Moore, forever, assigns, his heirs and. Clerk, -City and its seal there- affixed person lawfully every whomsoever to, this, January, the 14th day A. D. claiming or part or claim same 1936. thereof. “The of Beaumont understood, however, “By (P. “It is that the D. Renfro) above “Mayor an oil described lands now under and gas originally “By (G. executed in favor Petkovsek) H. Joseph Landry, by “City Manager and now held .P. Company, (Seal) Humble Oil & “Attest Refining this subject lease, “(Raymond Edmonds) sale is made to said but Clerk.” “City covers and includes one-half all by of bоnds voted and buy issued agreed thereafter Gordon airport. acquiring subject approval royalty, eventually refused title, Moore’s but says City misrepresented Moore “for conveyance from Moore accept a authority respects. in these does its He defendant that, opinion, his reason charge fraud with deliberate authority to con- had Beaumont no petition alleges by but his statements of land said tract minerals under vey relied, respecting au- on which he passed title no plaintiff and its deed him, thority conveyance to to make property' had whatever by subsequent course of conduct a bond issue proceeds of purchased he himself down to demanded the time did purposes.” Moore voted money, the return show action; on acquiesce in Gordon’s pleaded taken all facts 1936, brought suit September or about mistake, not acted mutual under a district court against Gordon City’s convey only regarding powers performance specific County for Orange purport which the deeds purchase. Gor- contract latter’s convey, regarding but also existence ground where- on the suit defended the don property avail- and nature of interest accept conveyance refusal on he based conveyance. extent effect able Moore, defense was title will be later but of this mistake considered denied relief Moore was sustained city’s representations course by of said against Gordon to now. must be referred conduct February court dated district Perhaps way point giving is, court, Appeals, that Civil Court of misrepresentations, alleged Moore appeal 122 S.W.2d acquire and own trial court judgment of the affirmed same, convey lands and sell and and on October judgment dated tjhe alleged further lands owned 25, 1939, Supreme Court dis- January capacities, were held different to- application for writ of Moore’s missed wit, public, privately, for the trustee rehearing motion Moore’s error. corporation, for use as a on Feb- Supreme overruled Court *7 question herein, all times in the to-wit, Subsequently, on or ruary 1939. own and capac- did hold lands in each demanded of Moore about March ity; City’s power sell to and con- money by writing that City in public vey trust lands held in for namely, $13,772, City, with to the him subject (which to limitations were him; interest, but the be refunded ; specified) but that had the same any him pay and refuses to still refused power convey to sell and by lands held it original peti- his He filed part sum. of privately private as had an or individual a September 29, on this action tion in corporation. power contract, summary will do acquire property convey and to sell and but Moore under- alleged; facts same was founded Section 5 of its representations on plead various taken charter, alleged Moore as which follows: during him made to “Section 5. General (1) The Powers. city, and negotiations with original his perpetual City of Beaumont shall have suc- afterward; matters must be these and cession; right government; of local self in more detail. stated seal; corporate may may use be sue and substance, equity having in all courts of law and alleged, that in sued Moore Gordon, court, jurisdiction; may contract and the trial and con- suit with, implead Appeals, impleaded that the tracted and be held Court Civil courts, and all matters conveyance ultra vires all such to him was whatso- ever; acquire property simple may was inconsistent in fee because or purchase, interest estate airport, lesser land for or use with devise, effect, appropriation, lease by gift, had, dedicated or lease been it purchase privilege purchased. any it with mu- had been with funds may sеll, lease, hold, proceeds nicipal purpose; stated, man- were As these fundsv real, or personal City purported convey him the age and control such any royalty purchase. all rules and Yet if property and make undertook to mixed or resolution these a technical regulations given ordinances instruments be and fully struction, carry out required they might with may be seem inconsistent to; conveyance, allegations just deed the any provisions referred all bequest appears or gift or any from the face said or in relation to deeds will may provision by which it Moore dealing lease and the were with all perform tract of land acquire property; supposedly and render Such lease. expe- services, conveyed public “perpet- deemed deeds would not and public royalty” strictly legal ual ain dient, sense property condemn valid; city use, and lease instead Moore would within without same; acquired hold, royal- such have manage and control interest in the lease ty governed City’s possibility and an proceedings to interest in condemnation force in refer- reverter which au- would have vested controlled the law him ¼6 n tomatically nonpartici- condemnation title to ence pating companies and the assess- fee railroad on the termination way of therefor; However, obviously damages and shall said did lease. Moore ment himself; obligations all the duties intend to and we subject to contradict may properly respect- said allegations pertaining to or incumbent treat his now ing city’s corporation, representations not in city, conflict to him as be- charter, and shall provisions of consistent with existence of immunities, powers, rights, enjoy having all been directed toward possessed now privileges franchises convey granted herein city and interest enjoyed purportedly conveyed said on face Certainly, his deeds. conferred.” it was Moore’s say intention purported that he buy Evelyn R. said that the deed Moore purported convey to him a City, conveying Poole al. to the the air- et royalty not rights burdened with in the tract, port did not show what the land public to have the used airport. for an for; purported convey to be used title simple, and in fee when Moore and alleges representations simi- purchase negotiating were quoted lar to those above were made himto represented to sale of the when he informed the “the defendant was seized Moore that objection Gordon’s first title, we simple possessed of the title to said fee allegation note an this occasion the encumbrances, tract of free all City represented himto “That tract of legal prevent- *8 impediment there no existed by held was private Defendant in its minerals, (the) de- ing the sale and that proprietary capacity.” Furthermore, he ready, willing fendant was able and to exe- says finally rejected that Gordon his conveyance cute a with a collateral same City thereof, title the was informed and of warranty.” alleged fur- contract by the reason advanced Gordon for ac- his “relying upon representa- ther such that tion, plaintiff and the “assured that (he) agreed purchase (¾e) per- to tions conveyance said and said collateral contract oil, petual royalty gas, to all the and sul- warranty respects in all legal.” was agreed phur, and other minerals—and coal Moore indicates expressions that similar ' ($13,772) pay cash City therefor — by times, were made to him the at later delivery proper general execution and of a but does show when these statements warranty deed.” petition alleges werе made. His he that not to make the a party chose his allegations must be These construed Gordon, apparently against suit because the deeds. Texas Moore’s Rules of Civil 59; Procedure, want to become a party Rule Co. did not Southwest Stone Commission, “such course was Tex.Civ.App., 173 and suit calculated to v. Railroad plead convey produce beneficial results.” The City 325. Moore these was exhibit; Gordon, of his against suit and he refers them and informed ances says city clerk on the trial thereby them that testified of that construes and effect ery purchase price inten- Moore’s said been have case. It seems interest, City con- and for such other and fur- generally that allege tion relief, ther convey- general special, both law and its held out sistently treated equity, prove and in him- that to which he valid, alleges being and he ance as City self entitled.” presented his demand when he by him as money paid return of the for the Moore has carried the effect of royalty, and the for the consideration respecting “mutual mistake the title of there, demand, then and his refused ac good defendant” deal farther than it time, position City took the the first tually goes, all pleading but his need do— vires was ultra royalty transaction go beyond prayer general if he need $13,772 was recover the right to that his mistake; relief—is to show the it is limitation, barred court’s function to determine the effect reject- propositions on these would stand here, especially so where mistake ing his demand. largely the mistake is one of law. le- briefly various now refer We shall following The raised the defenses exhib- parties which gal theories by exceptions to Moore’s action to Moore’s pleadings. ited petition: very fully several petition states Moore’s conveyance to Moore ul- (1) The rights as what legal conclusions vires, and tra therefore void because the his deeds He treats are. been dedicated to use an air- void, in Moore and this court’s port inconsistent said He be void. holding them to Gordon as with this use. cove- recovery under a right claims title, (2) power to warrant The covenants warranty, nant of title, convey and to warrant the de- 1297, R.S.1925. implied Article pends upon, by, does not run is limited consideration failure of a total claims He title; power convey beyond and as $13,772, pleads a constructive for his power convey did not have money. also He favor of in his trust Moore, royalty to it did not have the of action allege a cause purports Moore, alleged to make the warranties received. money had and warranties are therefore unen- allegations arguendo These forceable in action. considered, matter course (3) evi- foregoing matters were our determination controlled which has recovery dently pleaded in bar of Moore’s allegations of rights Moore’s parties’ city. express In bar on an contract determine facts, must for this court is, implied recovery, any other show those rights as facts Moore’s $13,772, refund the obligation accordingly. be, grant relief rights to year statute of limitations. two raised the support any recovery prayer will Moore’s Opinion. under the entitled he to which petition exceptions Moore’s sub- not, many in so He has alleges. facts question, stantially raise the whether words, re- ground alleged a mistake as *9 cause of action alleged a Moore the exist- lief, pleading shows fact but his did, that cause if he whether mistake, that he and we note a ence of years was barred two of action basis, follows: that as relief on prayed for judgment Our nec- statute of limitations. prays in alternative further “Plaintiff essarily depends upon assumption an that of the defend- of the fraud by reason that allegations true. Moore’s out, because of the set hereinabove ant opin I. We will first state our parties hereto with mistake mutual City’s regarding the effect con ion of said of the defendant to title respect to the veyance to Moore. We hold that this con any recover land, in event plaintiff, should absolutely void; veyance not defendant, rescind- and from Moore title vested with deeds all of in- cancelling vacating ing, airport, although in- in the not the interest herein, for recov- involved struments
977
was,
use
City purported
an airport,
land for
with
and .the
the land
terest
which he
a sense,
in
judg-
purpose
that
deal.
that
dedicated to
We hold further
to this
extent,
Gordon,
namely,
that
ment
v.
council
of this court in
until
Moore
lawfully
determined
not
the issues
to abandon the
S.W.2d
did
determine
land
us;
for
airport,
City
use as an
were not
could
now before
those issues
not
purpose
use
land
proceeding.
which,
The fundamen-
for
other
raised
fact,
as
question
presented Moore v. Gordon
interfere with
tal
matter
use
airport.
land for
good
was whether
had
and mer-
Moore
Cartwright
which
Beaumont v. Matthew
chantable
interest
Gordon
Land &
to the
title
Improvement Co., Tex.Civ.App.,
rightly
did
S.W.
bought. The court
held
589;
Gordon,
not;
Tex.Civ.App.,
Moore v.
purchased
Gordon
free of
However,
recognized
S.W.2d
roy-
239.
it is
tendered
encumbrances
he was
both
need
al-
which
decisions
not
alty burdened with a servitude
made
ways
purpose
use the land
enjoyment
royalty depend
for
for
acquired;
which
originally
it was
it
contingency, namely, abandonment of the
particular
held in
use
City.
prin-
each that
can be
airport by the
Statements of
abandoned.
hold further that the
We
ex-
ciple
opinion
in the
were made
handed
City’s power
ercise of the
which,
to abandon a use
down
v. Gordon
unless
in Moore
land
is not
limited
сourt,
as a
tract
referred to issues then before the
whole;
must
allowed
support
be
to exer-
might
holding that Moore’s deeds
practical
void;
way,
in a
cise
absolutely
agree
accord-
were
but we
not
do
arise;,
may
principles
circumstances
relevant
law'should
and if the
that all
discovers
be that
carried that far.
our
par-
land is
needed
opinion
rights of
concerning the
acquired,
the land
then the
limiting
appeal
ties to this
involves
land,
Gordon;
need not continue
to use all
in Moore
statements made
v.
land,
purpose.
That
express
our views in
we shall
therefore
sold;
needed
it
can
was so-
of decision
regarding
full detail
rules
City Abilene,
Sayles
held in
Tex.Civ.
judgment depends.
which our
App.,
Tex.Com.App.,
290 S.W.
affirmed
respecting
effect of
Our conclusion
v. Gordon
public
within the
discretion
deposits
sug
benefit
duce minerals
from
pur- gests is
bond
ultra
absolutely
from the
vires and
the land
void.
land diverts
As
Waterbury
Laredo,
said in
production
City
is inconsistent
pose
v.
where
565,
68
city
(as
81,
page 84, regard
had
5
purpose
bond
if the
S.W.
at
use for
pur-
contract which
works on
restricted
constructed a water
;
power to
airport bonds)
regulate
pas
and this must
charges made for
chased with
sage
ferries;
contract,
deter-
on
before the
its
“Such a
be where it occurs
so
certainly
land,
valid,
although
municipal
leased
divest the
mines
abandon
produc- government
conveyance and
only
conferred
discretion
lease
only
taking upon
legisla
lessee’s
it—a discretion necessarily
tion thereunder
character,
property,
body
for otherwise tive in
possession
which
can
of his
such
interrupt
the bond
City
by contract,
could
use
not surrender
bind
or
itself not
produce minerals
purpose in order to
freely
may
exercise
whenever
become
effect,
go
In
could
money.
make
necessary.
much
So
of the contract seems
voted
money
ac-
business
into the oil
clearly
to us
invalid.”
toAnd
the same ef
However, voting the
quire
airport.
an
fect, see:
Water
Texas
& Gas
v.Cо.
operate
require
City to
did not
bonds
Cleburne,
Tex.Civ.App. 580,
21
S.W.
come, regardless
all time to
airport for
an
396;
page
Sayles
at
of Abi
circumstances;
po-
future
lene,
Tex.Civ.App., 290
page
S.W.
operating
power
cease
air-
tential
(affirmed Tex.Com.App.,
;
578)
295 S.W.
airport, and
port,
doubtless to
move
Teague
Sheffield,
Tex.Civ.App.,
operation
temporarily.
suspend
420;
S.W.2d 417 at
of Bren
then, may
exercise of
How,
these un-
Co.,
v. Brenham
ham
Water
67 Tex.
adjusted
powers
to the un-
doubted
S.W. 143 at pages 148-149 and at page 150.
by the
necessity
abiding
bond
doubted
think
purpose
land? We
using the
The exercise
pow
of the aforesaid
by keeping
adjustment
made
is to be
expressed
er to abandon can be
way
proceeds
represents the
the land
mind that
which shows
attempted
purpose
definite
voted for a
of bonds
power.
exercise the
An unconditional con
purpose,
to another
devoted
not be
veyance
attempt
such an
shows
powers
ortght
exist and
that the aforesaid
City necessarily
must abandon its use.
public,
in behalf of
exercised
However,
ordinary
gas
oil and
lease
requires
public benefit
from
that what
not;
the lessor retains
right
does
to use
powers is not
to be
these
the exercise
except
the surface
as modified
neces
determined,
primarily,
at least
fact
lease,
sities of the
lease
such a
con
substantially
can
its
increase
that the
alone, represents only
sidered
agree
proceeds
roy-
a mineral
by the
income
ment to abandon.
Our
in this
land.
alty
logi-
what
think a
we
is founded
case
principles
The foregoing
apply to
principles
of these
application
cal
generally,
lands
including fee
us.
record before
acquire
lands which
a mineral value. The
however,
power
course
lease
our ar
return to
To
mineral
which affeсts
power
applica
to abandon
use
lands
gument: The
principles,
these
tion of
for which it
is itself
and somewhat limited
appli
all of
affected
to determine that
the land
acquired,
or
principles.
City’s pow
cation
use and
devoted to
not be
need
expressed
er
lease
in Article
sold, necessarily
shall
R.S.
unnecessary
following
discretion;
language:
exercise of a
“Cities
involves the
organized
stated,
discretion must be
chartered or
exercised
towns
Texas,
behalf,
public
by special
when the
laws
or
bene
public
Therefore, any agreement
charter,
own
or
oil
requires.
Act
or min
fit
fact,
lands,
as a matter of
shall
although
eral
express
necessarily in
mineral
language,
oil
lands
will
for the
*11
least in
1267 did
not
which Article
city, but shall
fee lands
town
benefit of such
or
alley not forbid
de-
lease mineral
any street or
the
purposes
to
lease for such
city,
velopment;
power
this
was not
or
and that
public square
or
in
town
or
said
contingent
person
valid
by any
to
the
of a
any
existence
therein dedicated
city;
mineral
public
covering
lease
said land.
in
or
and no
uses
such town
thickly
set-
shall be drilled within
well
power
from
existence of
results
this
town,
any city
nor within
portion
tled
or
simple
the following
(a) Fee
matters:
residence.”
private
two
feet of
hundred
(b)
power
ownership by
City;
general
specifies a
literally, this statute
Construed
convey
lands, which
to
its
is vested
may be exercised
power
lease which
to
charter, quoted
City under
5 of its
Section
hold, how-
city
We
whenever the
desires.
1267, R.S.1925,
(c)
above:
with
Article
power, at
ever,
this is a subordinate
general power
convey
which the
should
to
acquired
pro-
with
regarding
least
lands
construed;
general power
is
a certain
oonds voted for
ceeds of
construed,
conveyance
so
a
it authorizes
further);
goes
(and
before us
no
the case
land;
mineral
a
interest in a tract of
intend
legislature
did
(d)
City’s power
that all
to determine
power to make
city
vest
a
statute to
pur-
necessary
land is not
City’s
agreements
prevent the
which would
acquired
poses for which it was
and to sell
public
and when
exercising,
behalf
part
land not needed for that
of said
requires,
public interest
the discretion
purpose.
to
the use
such
or to abandon
continue
say
general power
We
that when the
to
purpose for which it
ac-
for the
was
convey, expressed in Section 5
the char-
quired;
power
lease can
and that the
to
1267,express-
ter is
with
construed
Article
lawfully
not be exercised until the
power
lands,
ing a
to
mineral
lease
au-
use,
aforesaid
to
determined
abandon
convey
thorizes
in-
a mineral
may not be nec-
part
or
land as
such
power
terest in
land.
a tract
use,
only regard-
then
essary
phase
power
lease
to con-
a
acreage
to be
ing
which is
abandoned.
vey.
National
Avis v. First
Bank Wich-
Ar-
construction of
It
realized that this
Falls,
ita
141 Tex.
as fact. a matter of for oil or “The Grantee shall drill covering operations
An
an entire
gas
proceed
oil
on
lease
hereunder
airport presupposes operations which will
a well
the above land
and until
unless
operation
(300)
with continued
feet
brought
be inconsistent
three hundred
within
produce
airport.
line
which shall
of a
of this land
barrels of
(200)
much as two hundred
applied to
When these rules
pipe
per day
thirty (30) con-
line oil
city’s lease to
us the
record before
possible
indicating
days, thereby
secutive
Joseph
presumptively
is at least
Landry
P.
land.
production on
herein
leased
place,
void. In the
that lease covered
first
“Upon completion
well within three
of a
airport;
recite
the entire
Moore’s deeds
land,
(300) feet of this
as above
hundred
now
“The
lands are
above described
mentioned,
shall, with reasonable
Grantee
gas
originally ex
under an oil and
lease
promptness, begin,
dil-
reasonable
Joseph
Landry, and
ecuted in favor of
P.
prosecute
good
in a
workmanlike
igence,
Refining
now
Humble Oil &
held
drilling
a well for oil on
manner the
place,
Company.” In
Moore’s
the second
granted in
herein
an honest effort to
land
plead
fully
lease more
than
failure to
other of such minerals in
discover oil or
excepted
he has done has not been
quantities, which well
paying
shall be an
must therefore
city,
assume
we
discovery well on
well to the
such
offset
referred to in
that the lease
Moore’s deeds
land,
drilled within three
other
shall be
ordinary
gas
is an
lease.
In
oil
boundary
(300) feet of the
line of
hundred
place,
showing
third
there is no
Moore’s
granted.
herein
petition
Landry
the lease to
was ac
companied by
oil,
discovery
a determination
abandon
gas,
“Prior
sul-
rather,
airport;
quanti-
effect of that phur
paying
or оther minerals
contrary.
pleading is to the
as-
granted,
herein
Gran-
ties
pointed
below,
immediately
lines,
ís
out
has
light
any
construct
shall not
tele-
tee
full,
pleaded
lease in
and the
lines,
the Landry
phone
pipe lines or other services of
alleged by
af
instrument
shows
without written con-
kind whatsoever
any
firmatively that
deter
herein
Grantor
first had and
sent from the
airport,
pur
mined
abandon the
obtained.
well,
ports,
airport.
cover
entire
oil,
sulphur
gas,
or other
“In the event
respecting
This conclusion finds
the va-
in pay-
produced hereunder
minerals are
lidity
support in
Moore v. Gor-
of the
event,
quantities,
ing
Grantor
don, Tex.Civ.App.,
985
effect;
given any
parently not been
III.
determine
We
now
rights
City.
ap- what
rigorously
year
Moore
two
has been
has
statute
v.
&
Co. We hold
he
plied.
that on the
See: Texas Water
Gas
record before us
21
Tex.Civ.App.,
Cleburne,
agreement
with
rescind his
393;
Cleburne,
city
S.W.
v.
recover
Ellis
the consideration
495;
city;
Wink
him to
Civ.App.,
City of
our
S.W.
conclusion is based
Tex.Civ.App.,
Co.,
George Machinery
(a)
following grounds:
R. B.
Moore
653; Clay Bldg.
Material
S.W.2d
Co.
get
did not
he contracted
buy
Wink, Tex.Civ.App.,
convey,
contracted
City’s obligation
thereby
lеgal injury;
(b)
Doubtless
sustained
mistake;
the law could be
but not on situation resulted from
transferred
a mutual
(c)
unenforceable;
running
such basis
Moore’s
as a covenant
warranties are
(d)
perceive any
money
land.
not
while
expended
We do
substan-
has
warranty
identity
spent
municipal
tial
said funds
pur-
between the
were
obligation
implied poses
proper
require
and it
might
is therefore
repay
repayment by
purchase
under the law
city.
Moore’s
These
re-
matters
price.
quire
,
further discussion.
First,
injury:
regarding the
matter
says further
void;
absolutely
Moore’s
he
deed
not
estopped
deny
validity
acquired
title to a
the inter-
these warranties
because the
est with which
he
dealt.
repaid
$13,772.
proposition
got
burdened
a dedi-
n overruled. These
purport
warranties
enjoyment
cation
made
thereof
executory agreements.
sup
They must be
beyond
tingent
degree
contracted
ported by a consideration to be enforceable
*17
subjected
speculation
him to a
of such
any event,
in
for
the consideration
said
got
a nature as to make what
different
he
price
paid
warranties was the
Moore.
quality
bought.
from
kind
what he
estoppel
Thus Moore
an
claims
position
analogous
Moore’s
is
that of the
in the
consideration needed
126
McClellan,
v.
Tex.
vendees
Nance
executory
support
first
any
instance to
580,
774,
89
106
S.W.2d
A.L.R.
promise. This
enough
estop
is not
City.
were,
If it
it is difficult to
how
see
In
v. McClellan
Nance
the vendees
deny
could
validity
even
of
bought a town
from
lot
vendor for
.any bond, any
any
purchase,
of
contract
or
special purpose,
knew,
as the
of
vendor
any
Generally,
of
contract
kind.
this court
thereon;
erecting
operating
a hotel
require
is
not
authorized
represented
and the vendor
them
that
(cid:127)comply
executory
with
agreement
which public street ran in front
This
of thе lot.
power make,
has no
we
and if
false;
representation
opened
was
the lot
point
very
(cid:127)sustain Moore’s
we do that
upon
railway company’s
right-of-way
thing.
ordinarily
duty
is
of
public
street,
commonly
which the
used as
repudiate
officers
agree
vires
ultra
and the other sides of the lot were bound-
ments,
always
it
is
Convey-
privately
property.
business
one ed
owned
who
deals
ance was máde
vendees. Thereafter
ascertain what
they
agreements city
brought
discovered
facts and then
can,
officers
and can not
price
that
suit to recover
ac-
governed
make
accordingly.
and be
land,
tually paid by
them
also
have,
vendee
this case we hold
that
to cancel a
for the
Moore does
note
balance
rights
have enforceable
city,
price,
securing
rights
and a deed
trust
depend
these
Judgment
prayed
principles
note.
in their behalf as
equity
and not
principal question
See,
affirmed. The
was
regarding
contracts.
the matter
was
estoppel: City
Teague
Sheffield, to be determined
whether
vendees
Tex.Civ.App.,
420;
417,
brought
within
ex-
had
their case
at
Ward,
Springs v.
Big
rule,
140 Tex.
ception to the
laid down in
Co.,
Transportation
987 Dew, an brought In plaintiff Tex.Civ.App., O’Connor 55 sideration. then 882, defendant. price paid brought recover the plaintiff action S.W.2d an action money certificates recover was held these he colonist’s had de- which loaned were nonassignable under agreement under the law and fendant an that defendant act engaged perform had repayment defendant money would secure of this per- a lien he not capacity agreement certain After the legal did land. expressed in equitable form. had principles money On made and over made, quotations plаintiff hereinbefore defendant the parties discovered price. could purchase recover Said land was homestead and that defendant’s paid as the money court: “Here had been defendant a could not create lien on said use property consideration for act for the doing an secure debt. The Court Appeals defendant could of plaintiff which the Civil held: “In these circum- not The contract perform. was doubtless stances trial court learned was ignorance legal made in of the defendant’s giving the defendant in error inability perform act. But him immediate return ascertained, bound the defendant was money.” good conscience refund equity and It is an established rule of decision consideration he received.” had appropriate equitable state that re Ass’n, Odell v. Grubstake Investment In be granted against will lief a mutual mis 151, Tex.Civ.App., 38 S.W.2d the share- take reducing agreement of law in trust, 8 business which had holders writing. The parties knowing the terms run, years yet brought a suit dissolve agreement legal misconceiving wind trust up trust and affairs. The Ward, Kelley effect terms. 94 share- been formed belief that 289, 60 (reformation); S.W. 311 personal liability holders could limit their Norris v. W. Belcher Mortgage C. Land provisions agree- by appropriate in the trust Co., 98 Tex. 82 S.W. ment, held contrary afterwards the 799; Smith, 98 Tex. 83 S.W. Gilbert v. rehearing (pages 152, On state. Tex.Com.App., A.L.R. S.W.2d) the relief granted court 445 (reformation). This granted relief is prayed following grounds: for, on the mistake law de contingency contem- “Such was never spite it; and if will relieve one from equity plated parties, never minds whose form contract to he did not agreement met in the contract nowas agree, reducing for mutual error of law in construed courts and insisted writing, his true contract equity also whereby de- appellee, parties him from contract to relieve did prived protection in сonsidera- very agree, regarding mutual error *19 they agree- into of which entered the tion power convey. of his vendor to ment made. The law thus actually having It has been contract, also held mutual that the nullified material emasculated rights per mistake regarding antecedent provisions controlling permeate and requires taining property contract destroyed agreement, the consid- the entire equitable (in relief. seme it, addi In cases moving parties eration execute hereinbefore cited) tion to some mis provisions remaining pal- its and rendered analogous take unconscionable, made to the mistake was equity should inter- pably regarding here to deal authority en- agreement in vene terminate the parties’ knowledge with and the parties relieve the uncon- and tirety Empire In the facts. Gas & Fuel by Co. upon of imposed them scionable burdens State, 21 provisions. Tex.Civ.App., We conclude that S.W.2d at remaining (affirmed Tex. appel- case presents entitling page record contract, court held that the grantee of State’s 265) cancellation dis- lants to land mineral partnership of had by created solution of trustees, contract, accounting state’s interest'in but mineral land was an from payment to receive purpose winding for the not authorized receiver and to state state’s share bonus and association.” the affairs of up agreement an he gas by had this defect oil and waived grantee an paid said rental his brought made dif- after mistake was (although on lessee; further held held, on various re- attention. The court could lessee that grounds) ferent said waiver, saying grounds, that there was no grantee part of said that cover said agreement things that represented the other among bonus and rental which laboring were parties In had made the been payment. the total share of state’s mistake fact “same mutual under the Pois, Tex.Civ.App., 15 S.W.2d Pierce v. liabilities, rights, to their private law $500, balance Pierce sued Pois it, effecting them and duties under which moved due him of the commission originally,” and enter into the contract exchange between of lands agreement an Ferguson to re- agreement this mistake entitled Pierce and Thurman. 619-620). November, (pages 1922. scind the contract made in exchange was suc- during met and Thurman Pierce commonly Equitable relief has ex- agreed January make ceeding misrepresentations of law. See granted for part his title to a change, 303; Thurman’s Ramey Atchison, 19 Tex. Moreland v. Pierce and he was encumbered de- Allison, two 64 Tex. These 697. agreement where- supplemental then made a but ac- cisions involved of fraud elements perfect he title undertook unnecessary; tually relief fraud is also years three within part his land misrepresentation. based innocent on held indebtedness pay certain Gerbic, Tex.Civ.App., 149 S.W. Altgelt v. comply Thurman not did back Pierce. case, party In this one exchange was agreement and-the party relied another statement Thur- so far as this information; effected superior who had means of Later, Pierce concerned. man’s land was being justified so re- matter tract from Thurman’s bought omitted lying element of the decision. is thus meantime wife, Thurman irt whom beyond However, going there decisions it. Pierce contended conveyed simply granting equitable this and relief orig- the modification of the agreed to representation Pois caused the innocent agreed exchange, contract of inal mistake, made being without reference depend on Thur- payment should justification $500 in relying said state- supplemental compliance with man’s Limpia Royalties, ment. In Means v. accordingly that Pois contract wаs plaintiffs Civ.App., 115 S.W.2d sued not com- Thurman had entitled to because trust, Limpia Royalties, a business The court held plied contract. royal- certain set trustees thereof to aside entitled to the $500 that Pois conveyance 12,- ty made in consideration of made; exchange original contract of They 000 shares of stock in al- the trust. supplemental consented if he leged that this was induced Pierce and Thurman agreement between representations by acting trustees that the payment should agreed $500 personally grantors not be liable for performance contingent on Thurman’s trust; the debts of copy contract, operat- were Pierce agreement, petition, of said trust attached to the regard- mistake law provison exempting mutual grant- under a contained a *20 liability would not be rights, his that he ors from for debts trust and ing Mounts, Ferguson provide requiring any so In Tex.Civ. trustees to bound. contract them behalf of agreed to on the trust. Mrs. Mounts App., S.W. They alleged representa- further that Ferguson. parties con- to The convey land false, tion but it was good was that made in assumption that Mrs. Mounts on tracted false, The court held that faith. was of the executrix estate independent was material, that that it was if it induced mistake; awas her deceased husband. deed, execution of the relief would be independent to of the sell power no she had granted by way of cancellation. such could not convey court and probate convey. agreed Ferguson to It us that she had to seems an inno as tilte person misrepresentation by one deposit she contended that cent to for an- sued
gggf appears both, guardian that upon was no more at other, and acted believed in plaintiff; fault the matter was the equal terms than parties are where the plaintiff and the fact that both and defend why one should shоwn no reason is good ant acted in upon his faith and that one relied' than the other relied more attorney’s on advice as much fault than no judgment involves more own other and support was as much mislead mistake, him ought to any other brings the situation so close all. to ordin ground of mistake relief on ary pro case of mutual mistake that sub no True, an element there seems apparent. stantial difference part of is Where on curing such a case cause put parties contract, mistake has into a the defendant which contributes otherwise, they executed or never suggests plaintiff’s predicament, and make, intended think in granted it is we matter relief can bring who did the most the mistake about equitable defendant make to allow unimportant is However, significant wrongful act. profit out of a equitable fact controlling the such cases and one difference between relief is real, the fact that the contract was never simple apparent more than mistake is really agreed to. ini generally for business transactions thereto, al party who thus by one tiated is Third, regarding imposition of liabil- always most more less cause ity upon repayment pur- of the party’s mistake. That difference other price: chase expended The has that, degree, re down one of comes $13,772paid Moore, but under the facts necessarily garding a matter which does not why of this case there is liability no reason part is any fault defendant’s on the involve imposed upon this sum not be Emery, Emery v. shown the decision in city. power convey The has a Tex.Civ.App., 75 There Through land. power, the exercise of this plaintiff acquired rights had enforceable equitable rights to rescission have vested an father under oral foster his in Moore. rights converse of The those land; contract for city’s liability repay purchase occupied years, had for several the land price; liability repay improvements, had made and had valuable an necessary automatic and incident purchase $3,- $2,385 price of on the Moore’s right to rescind. If Moore can monthly provided 500 in installments as in not price recover he has contract; representa said oral but on the deprived been of whatever value attached attorney tion of an guardian his to his of rescission and thus has been (who father foster had become insane deprived of the substance of right. placed guardianship been after the City’s liability repay goes The thus back rights accrued), plain aforesaid that said power land; convey for said lia- plaintiff tiff no rights, in entered bility consequence exists as a power of that agreement to a guardian written wifh said partially actual and an effective exer- buy pay the land and therefor the sum of thereof, cise be enforced as such. $2,000. opinion court’s motion for liability element of rehearing everyone acting shows that equity give a court of com- good faith and the attorney mislead plete parties relief to the and we do not plaintiff. well client as own question implied think there is plaintiff held could rescind However, may tract in the case. be noted purchase the second contract of and en in this connection that where money has rights original force his under the contract deposited with the to insure the performance ground regard illegal contract, on the mutual mistake of the de- rights original under said agree positor been allowed to recover the *21 money deposited. City ment. mistake was said to Lubbock be analo v. Geo. Co., Simpson Tex.Civ.App., gous to a & 31 mistake of fact. While the at L. S.W.2d torney guardian’s agent (page 669) was There court said and while 665. : “The $7,500 рrocuring have held agent deposited the act said was the could not plaintiff’s mistake, performance it to affirmatively appel- cause of insure the 990 Rescission with the ob was thus consistent such contract because contract lee of ject pleaded originally suit been as not have Moore’s and could void illegal and
was
granted
and could have been
under
have
appellee could
city and
enforced
prayer
general relief,
Further,
being
one
for
such relief
where
deposit.”
recovered
supported.
Hagelstein
facts
v.
as the
See
under
property to
has delivered
Blaschke,
718, at
Tex.Civ.App.,
has
S.W.
149
of sale
contract
ultra
vires
721;
978,
property page
7
Sec.
Texas
57
recover
brought an
action
Jur.
515,
imposed upon
75; 25
page 1008
Sec.
Sec.
city,
courts have
from the
Tex.Jur.
124;
470,
33
amend
reasonable value
49. The
for the
Sec.
liability
city a
Tex.Jur.
formal;
during
time
only
ment was
some
property
extent
of the use of said
possession. Fabric
city’s
regarded
enlargement
as
it be
in the
it was
remedies,
Teague,
permissible
Tex.Civ.
City of
was
did not
Hose Co.
Fire
v.
506;
Rubber
Mineralized
152
state
new
Invest
App.,
cause of action. Home
S.W.
Tex.Civ.App., 621, 56
Cleburne,
342,
22
Strange,
ment Co. v.
109 Tex.
195 S.W.
Co. v.
220;
Floydada v. American
849,
(1,2);
Directors
page
S.W.
851
Becker v.
Industries, Cir.,
5
87
Co.,
Ry.
&
Foamite
Real
La France
of Gulf
Street
&
Estate
impose liabil-
475,
1094;
courts can
820. If the
223
F.2d
28
15 S.W.
Tex.Jur.
no reason is
5539b,
ity
these circumstances
(Secs. 124,125);
Article
Vernon’s
de-
liability should be
perceived why that
Civil Statutes.
expenditure of
nied
here.
question of
us.
No
is before
laches
purpose would
$13,772
unlawful
for an
say that
However,
proper
deem it
we
liability, but
prevent
imposition
this
rati-
petition shows
he never
Moore’s
case;
Moore has
question
not
this
in-
City’s
conveyance;
defective
fied
spent
$13,772
for “mu-
was
alleged
with the ob-
he
the matter
litigated
stead
purposes.”
nicipal
do,
parties, as hе had
jecting
against
judgment
rendered
final
foregoing reasoning
Under the
him,
repayment.
presented
demand for
question
the case
of limitation
is no
there
year
presented
four
now
reconvey
has
offered to
not
R.S.1925,
5529,
statute, namely, Article
acquired under
property
which he
rescission and
However,
action
applies
for
prayed
deeds.
has
petition
exception'
to Moore’s
failure
for cancellation
to tender
interpreta
statute. On
not raised
reconveyance
excepted
has not
to.
been
Rush,
Deaton
see
Article
tion of
willingness
pleading manifests
His
page
at
113 Tex.
S.W.
original
shall be restored to
Tipton, Tex.Civ.App., 142
Kimmell v.
position and under
the circumstances
(Par.
9).
formally
reconveyance
failure to
tender a
Further,
in time. This
suit was filed
only
to be
matter of form and need
seems
26, 1939,
September
suit
filed on
special
significance.
given
See
years
the land was
after
than four
was less
Rule 90.
Moore amended his
conveyed Moore.
accordingly
trial court
in dis-
erred
court on his
is before the
petition; he
missing plaintiff’s
and the trial
suit
court’s
petition,
original
but the
amended
second
is reversed and the
judgment
case is re-
same
facts
alleges
basic
amendment
court for
pro-
trial
further
manded to the
original petition
alleged
opinion.
ceedings in accordance
same basic
cause
thus states
Rehearing.
On Motion
petition did
ex
original
action. The
following
have the
We
comments
pray for cancellation while
pressly
assigned
matters
regarding the
er-
make
does, but
amendment
amendment
City’s motion for rehearing:
ror original prayer; Moore
only elaborated
motion,
paragraphs of
various
(1) In
recovery
money
of his
prayed
directly
paragraph
28, the
perhaps most
prayed
relief,
equitable
relief
n could
is made that
point
without
rendered
not have
mutual mistake of law
contract, for
See Gossett
contract.
rescission
contract, does not run
parties to that
Tex.Civ.App.,
(cid:127)cause not
City’s
price. upon
propositions:
(a)
purchase
two
The
installments
future
attempting
not limited
of reverter was
possibility
courts were
seems
working
individual
the lessee’s
but extended
interest
to restore
they
best
could
as
minerals
throughout
City’s
he en
fee in the
occupied before
position he
to the
sug
transaction;
underlay
royalties
and this is
reserved
into the
tered
lease;
possi-
rough City
(b)
City’s
parties, at least
in
gestive because the
they bility
equivalent
the sum
position
which
reverter
occupied
like that
was
ly,
a
interests
upon
rights, powers
of sim
all
occupied
a decree
total of
would have
lessee;
composite
us
in-
granted
differs
it was a
case before
ple
The
rescission.
terest,
transac
fee
fee
is a
or a
because the
determinable
all
cases
these
roy
every
got
simple,
a
a reverter
void.
included
was not
tion here
up with right, power
the les-
royalty
granted
covered
and interest
alty, but
see;
being
which
com-
therefore the
bond
“dedication”
a
beyond the
speculative
pelled
convey
nothing,
position
all or
could
his
made
fee,
deny him
vey
To
a
in
of the reverter
royalty
him.
out
degree contracted
effect,
convey
royalty
is,
enforce
just
in
as the
can
a
fee owner
rescission
parties did not
of the minerals before
lease.
him a contract which the
out
a
proper to set
make,
it is
and therefore
propositions just men-
The first
n contract aside.
in
having acted
The
ran
possibility
of reverter
tioned —that
capacity
selling the
corporate
in
mineral
the lessor
throughout
fee
proper
Having
so, it is then
done
to him.
royalties
underlay
the lessor’s
—was
the courts
precisely what
court
do
for the
upon
a common
based
what seemed to be
to,
just referred
the cases
done
have
in
recognition
of the lessor’s lease
in this state
property,
mon
namely,
him
restore
royalties
amounting to a
distinct
broadly, we think
Viewing
matter
ey.
land —which neces-
interest
identifiable
logical
a
extension
judgment
but
our
expired
sarily
lease. See: Hoff-
with the
liability to return
unquestioned
Co.,
Magnolia
Tex.Com.
man
Petroleum
v.
con
a
property
it under
void
delivered
828;
Hart,
App.,
273 S.W.
Richardson
purchase and sale.
tract of
Tex.Sup.,
in-
185 S.W.2d
564. The
no
give
interest,
should
tegrated
This result
of this
or com-
character
im-
complaint.
interests,
ground for
indicated
bination
fol-
statement,
which
poses
lowing
from Richardson
contract
taken
no
does it occasion
Hart,
referring
nor
not make
City could
loss;
tois
place,
all we
done
part
have
minerals
fractional
operated
which
subject
including
contract
fraction-
set aside
lease
they
clear,
did not contem-
parties
way
royalty:
in a
“It is
al
lease
the status
think,
them to
conveyed
restore
plate, and to then
that the instrument
two
we
quo
separate
land.
ante.
estates in the
distinct
permanent
interest
The first was
14 of
mo-
paragraphs
In
(2)
in place
minerals
to subsist dur-
paragraphs 13 and
seem
tion, to which
beyond
existing
ing and
the life of
lease.
our con-
City assigns error to
related, the
pay-
other was the
to be due and
Landry
City’s lease to
clusion
And it has been
able under
lease.”
held
void,
have
deed would
Moore’s
had been
conveyed
convey-
interest
interests, name-
him
title
two
vested
ance
lease
terminated with the
of a
royalties
in the
lease
ly, an interest
Anderson, Tex.Civ.App.,
Curlee v.
lease.
City’s possibility of
interest
993
Smith,
Tex.
Hogg
v.
in Schlittler v.
101
opinion
128
Sheffield
[124
the
in
gas
oil and
S.W.2d 543. Yet
no decision
is that
we have seen
But airport not interfere with
in the can land for an be- of the use owner, City,
cause the shall
determines when use the land made. a lease shall be
abandoned and when original Perhaps, we our have said HAYWARD CORPUS et al. CITY OF circumstances when opinion, will be et there CHRISTI al. owner, court, prayer will at the 2666. No. right to make compel owner the lease Appeals Court of Civil of Texas. Waco. lease; ever circumstances but these July 11, 1946. prin- arise, act under the court some will jurisprudence and not ciple equity Rehearing July Denied court of law. And a rule of land some which would grant relief equity would proceeds airport bonds divert bonds, would nor of those effect, require City to court, air- to abandon the discretion
exercise
port. can not ownership
Private degree, impel appreciable
tend, airport— abandonment of
the misuse brought might about result profit from lease possibility outstanding royalty Moore’s a lease lessen value
would actually tendency some might airport. delay an abandonment owner, private might
Moore, any other persuade lease the
attempt to possibility City officers
land; but if destroys erroneously act
being persuaded powers. have no power, that we would have hold to us It seems deed Moore was wholly it; policy to defeat and the public Art. by enacting
Legislature, exactly opposite public as the down
laid For the State. leases author- of this
policy conveyances statute are by that ized individuals; private interests
mineral