Myers v. Crenshaw

H25 in- land or mineral sales of this they failed do. terests therein. This 548, 11 S. Boon, 73 Tex. Cattle Stone Co. Booty v. King, supra; W. Toler v. O’Connor, Tex.Civ.App., S.W. 282. opinion, we feel con- concluding quote Boyer, strained from Fitch “ * * * upon following: from public policy and considerations of weight authority, we true deduce judg- proposition, domestic rule the that a general jurisdiction ment of a court of scope subject-matter ordinary within powers proceedings, entitled of its verity, absolute collateral such action, as to where record silent even notice, presumption, when not contra- itself, dicted the record court also, jurisdiction person had is so evidence aliunde will not be conclusive that

admitted contradict it.” assignments in this All other not discussed

opinion carefully have been examined overruled. are judgment things is in all affirmed.

MYERS et al. v. CRENSHAW et al.

No. 5159. Appeals

Court of Civil of Texas. Texarkana.

April 8, 1938.

Rehearing May 5, Denied Smith Wells, & West and Stone & all Davis, Henderson,

of George, & of Jester Corsicana, Paul E. and E. Fischer, Houston, E. appellants. both of Mayfield, Grisham, Lasseter, ,& Grisham Simpson Spruiell, Weeks, & Hankerson & Potter, Lawrence, Pollard & F. W. Fisch- er, Hendrickson, Smith, Ewing N. E. and E. Tyler, Garrett, Overton, all A. A. of Bradley, Groesbeck, Bradley & Brach- Wolfe, Henderson, & field W. Tim- J. mins, Dallas, McDermott, Paul A. Worth, Fort Denman & Fowler and J. J. Greve, Nacogdoches, Merritt, E. W. Hall, Marshall, McKinney, Scott & Estes, Trammell, Phillips, Edwards & Orn, Worth, appellees. Fort WILLIAMS, Justice. This trespass try is a action, tried jury, involving

to a interests, leaáehold roy- alty interest, and the fee-simple title to a 25-acre tract situated in Rusk county, Tex. Jones, joined by Rufus wife, his second September 11, 1930, executed oil and gas lease H. to R. Laird. In December parties executed these a deed conveying ½ Carroll, B. subject minerals to F. By conveyances said lease. mesne M. Thetford,. Bradley, E. S. and Sun Oil J. Company were owners of this .Carroll Later, February, 1931, these interest.. parties a deed conveying ¾, same executed Daugherty, being Paul the minerals to sub- By conveyances ject mesne lease. to said Corporation, Limited, Myers, Home Glenn Company, Dearing Black Oil R. H. Arrow Sons, Company, Royal Petroleum & and I. Williams, Dearing as trustee for H. M. R. owners, Sons, at the & were the time of interest, trial, Daiigherty will referred to as the hereinafter Daugherty associates'. Beren, trustee, Wiley, in addi- P. A. Crenshaw, of Ruf- wife the former Arab J. husband, merits, answering on filed cross- tion to her second Jones, joined by us in tres- parties actions all the other Crenshaw, on October Howard try attorney conveying pass to remove cloud. power executed ½ Grier. W. H. interest in the tract answer- wife and his second Grier, May conveyances said mesne By merits, cross-action ed on the and also filed Hick- and Carl Greve, Biggs, Hazel A. A. royalty interest n seeking recovery of a Floyd Strahan, Baton were man, F.T. The Ken- to still own. which nedys claimed owners an- defendants and various here- will These the trial. at the time of demurrer, plea general swered with a Crenshaw to as the referred 'be inafter Opal plea guilty. denial, of not general and royalty. The the suit. was dismissed from Givens the issues submitted findings jury on Montgomery, Kennedy, Ma- Emma Webb court, duly accepted to them were Butts, Arthur Kennedy, jor Savannah and opinion will pertinent those and only surviving and children Kennedy, the appear later. 11,- Kennedy, July Dink of heirs executed judgment a con- awarded the Oil attorney and Sun power a of ½, to Company tract Arab Crenshaw and associ- interests a veyance of ½ n ½, Bradley a will hereinafter ates and Thetford each and these Morgan, G. W. tract; Kennedy in- entire Dink of Bradley interest as the be referred a certain interest in leasehold terest. subdivisions; P. A. estate of one of the execut- and her father Givens Jean Beren, Wiley trustee, Refin- and Overton J. mineral and gas lease two an oil and ed deeds which each lease- ing Company, and R. E. Moore convey H. to' purport to J. subdivisions; Bird- hold estate interest to her entire Merett tract; song. in 1.7-acre a leasehold estate a minerals. in a 4-acre estate and Merett a leasehold named, grantors parties above All the par- as all tract of the subdivision and Daugherty the Paul save grantees, suit. ties interests, as- by various Kennedy Dink the signments and Rufus Daugherty associates Jones in- conveyed estate leasehold any interest. recovery of were denied a September Moore, who on R. E. to one Kennedys by the interest claimed The ½ the lease- owner the record became quieted in the and their was denied hold estate-. associ- other defendants. interests, Kennedy and Rufus ates, surveyed This tract out 26.7 ap- separate perfected have wife acres, and is herein referred to as the tract. Jones peals. The tract then subdivided metes and parcels. bounds into six and the Moore 2, 1884, On December H. James Kennedy partition interests entered into a conveyed by Wynne wife deed Mar agreement of the leasehold under which the a 146-acre tract of land which in cus Jones Kennedys on certain 1.7 took leasehold cluded the 25 involved this suit. acres acres of subdivision and Moore the conveyance This recites a consideration'of Birdsong acquired later balance. Fred promissory cash and the execution one $1 parcel. By interest to the 1.7-acre leasehold various deed, day note even date with due one transfers, assignments, convey- date, superior after and' reserves Wiley, Beren, trustee, P. A. H. ances Merett, J. J. purchase money paid. until This note Moore, Warner-Quinlan R. E. Oil property acquired so became the com Company, Refining and the Overton Com- munity his property Marcus Jones acquired respec- leasehold pany interests wife, Mary. born Six children were parcels tive of land under the division. marriage. six These children one Kennedy, Myers associates, Mary Dink child holding Glenn un- Jones marriage, Marcus interest, previous survived Daugherty ¾, Paul mineral der the Upon par Mary February 7, 1935, death suit on instituted this Jones. intestate, ents, dying by the laws of both they respec- made defendants all the Texas, Henry except and distribution in named, parties heretofore the descent tive and his brothers and sisters half- Company, Jones,.his well Oil as as others Sun Kennedy, brother, became tenants in necessary Company Dink name. The Sun Oil Heller, 114 Tex. Thetford, Heller S. v. 401. it with M. common. intervened and J. Merett, Birdsong, Bradley, Fred 269 S.W. E. H. J. Watson, v. reciting Tex.Civ.App., November'7, 1903, 167 S.W. by a deed Tipps, ac- Smith cash, Henry Tex.Com.App., 229 S.W. consideration $1 Jones 307; Pope Witherspoon, Tex.Civ.App., quired his the interest all brothers half-brother, Dink. Cleveland sisters, except his State Bank Gardner, 121 Tex. 50 S.W.2d 786. filed agreement a renewal June Henry was executed for record Jones Henry When executed this recited A. Smith which to one J. into he was com deed Smith a tenant be- note as vendor’s lien above-mentioned Kennedy. power mon with Dink Henry owned ing A. Smith then J. cotenant to act for and bind cotenants his pay obligated-to party being the as aptly p. 487, stated Tex.Jur. same, November extended the ordinary copartner follows: “Unlike I, recites: agreement further 1914. This ship partner agent wherein rights prejudice any “Without liens business, the others to transact or as- grantor, heirs to the retained cotenancy each owner acts for him conveyance.” original signs, in the deed agent self and no is the of another orie or re- record reflects no execution This merely any authority nor has to bind him vendor’s transfer of the cordation that, relationship. because So Wynne superior to title from lien and property held ordinarily, dealing with one warranty deed dated Under Smith. acquire only rights coparcenary can the 11, 1915, filed record the November cotenants whom those individual Henry day, conveyed to A. same 810; p. Jones bargains.” he See 7 R.C.L. tract, reciting the this 146-acre Smith Franks, Tex.Civ.App., Compton 222 J. v. cancellation to be the consideration 988, refused; v. Co. writ Shear lien note there- of the vendor’s surrender 935; Lucas, Tex.Civ.App., 276 S.W. Guar payable by Marcus executed tofore Jones Nelson, Tex.Civ. antee Mercantile Co. v. recites the Wynne bearer. deed or This to Moeller, 543; App., v. Bielss 223 S.W. by Marcus having been as renewed note- 1098; 62 Cor. Tex.Civ.App., 83 S.W.2d 31, 4, 1888, December October p. 545, Jones 225. § Jur. 21, 6, 1896, 1892, August and October Thus is concluded it from foregoing Henry re- 1899; recites that Jones authorities that owner in a coten- 14, 1903, October same newed October ancy acts himself no one is the agree- renewal None of these 1913. agent for the other nor any authority has any of same or ments recordation merely to bind because of a in this appear record. relationship unless so, authorized to or do From this unless Smith the facts create an estoppel, record A. both J. superior of which never became owner of elements are absent in this rec- by Wynne, retained ord. contention is Kennedy and 'he was not made that No knew Henry of this these the owner title when transactions or he that Jones Henry ratified acts of executed deed November these dated Jones. Stephens Heirs, v. Matthews’ For stated, the reasons above we (page 69 it is said conveyance by conclude that Jones 569) “The vendor of on a : land sold encompass Smith did not a rescission as so credit, reserved, express when an lien upon binding the interests of Dink title, may legal to retain is held he Kennedy land, tract this and there payment purchase money enforce fore did divest un Yu not them of this decree; or, by land under a sale of the divided interest. equitable the absence of considerations it, forbidding executory cancel the Henry by wife deed Jones sale; contract but an indorsee or as- November, dated filed for record purchase-money of one or signee all the September, 1930, in consideration of right have notes no cancel contract $239, acquired from A. Smith a 66-acre J. or recover sale default tract, which includes this 25-acre tract. payment money. His purchase wife, After the Henry Jones, death right sole is to have the land and its sold husband, surviving joined by five applied proceeds to the satisfaction of the marriage, the six children in 1920 purchase-money * * held him knowledge of the and would lead to the' all the vendor’s lien after notes .off ordinary fact, by of requisite the éxercise earnings, the mak divorce out of his own See, also, understanding.” diligence and ing payment the final 1924. the From, Tex.Civ.App. O’Mahoney Flanagan, 34 present, time' of the divorce the until p. 245; 66 § 78 S.W. Cor.Jur. possession been prop of the Rufus.has erty 915. person by tenants, receiving the rents, paying and the taxes thereon. Un recitations these deeds were phase der this latter of case, appel the any purchaser put on inquiry sufficient urged ten-year lants the statute of lim they why joining ‘were in the deed as to itation, art, 5510, Vernon’s Ann.Civ.St. Henry Henry and with These Jones. estoppel. and an This record and evi the every of the chain are in of deeds ‘ confusing dence is -on these issues. As lawsuit person involved being the case reversed to determine the charged of the with notice of them title between Rufus and Arah and those Kennedy the heirs interests of holding under her to the remaining land. Givens the Jean disposed appeal, pretermit not of in this we and Arah married Rufus a discussion of these issues. divorced in March, and were was the record own conveyance October, of this 1922. legal er the of when Daugherty and Rufus, March dated into claiming those acquired him under their cash and of $150. a consideration recites interests in the minerals-. It was incum plaintiff which can be secured from notice, nor constructive an he was inno- defendant, to who has their deed purchaser and, cent of the Benn Sabra place possession, said his contain- such, conveyed superior title to - acres, ing about with residence who, turn, conveyed Mrs. appellee.” O’Fiel toit - thereon, page recorded book County, -in Deed Records Rusk apparent It is Texas. from the fore that, opinion going if- anything be includ plaintiff pos- “That do have and recover ed in decree the divorce intended to affect benefit, of same session for main- real title to then such estate, decree must child, tenance of the Lobis Jobes.” county recorded in the office county clerk of the where land This adjudicate decree does not situ s otherwise, ated, for if the partition tract,' pleading a or title to and it is a seriously divorce or any not action divorce contended in decree which merely contained recitals urged to land briefs that it did. It is that this- might put person inquiry third decree, on being be con judgment in'rem, divorce notice, it structive would imparted notice, become man only of itself not datory person that this third status, examine the of marital dissolution but also of minutes all the district courts of Texas its recitals to a tract of land. Benn possible until such decree be found Security 'be Realty or Development Co., & ascertained not to exist. Such Civ.App., result refused, S.W.2d writ saying would be adjudicates if decree decisive this contention. In that case title, inquire county decree then at adjudicated which had divorce clerk’s in the office where land is was recorded district your clerk’s office situated for recital, county notice, merely but not if clerk’s office it where contains a Divers; land was situated. land, who claim then search the judgment rolls of purchaser value, ed be an innocent for all the district courts of Texas where a bought the land after can granted the divorce decree divorce after six months’ plaintiff. ing any Hence we reach residence the lease as to interest still judg the recitals in the owned the conclusion that him had terminated before the per payment office ment roll of the district clerk’s was made. did con taining'to this decree effect not proposition But the is advanc Daugherty structive to the asso notice dispute ed that there was a concerning applicable ciates. This conclusion is same title and this lease did not terminate be Thetford, 'appellees Bradley, provision cause of following in same: Company. the Sun Oil “If lessor owns said Traylor, 60 opinion in Roemer v. estate, less simple the entire fee then than Tex.Civ.App. contains royalties paid and rentals to be lessor language 689): (page “The divorce shall proportionately. be reduced Should rem, proceeding proceeding was a .in right or interest disputed of lessee be notice, he was affected without by lessor, any person, or other the time part.” knowledge actual That case on pendency covered dispute of said dealing registra- was not with land or the shall not be counted lessee either statutes, and, judgment, tion not in our as affecting the term of the lease or the Security Realty in conflict with Benn v. & payment time royalties for of rentals or or Development Co., supra. opinion That any purpose for and lessee sus dealing question necessary was with the pend payments until there is ad a final parties to a lawsuit. judication or other determination of such September gas oil and lease dated dispute.” primary which was term Christian, Stanolind Oil & Gas Co. v. years, delayed of ten contained the usual Tex.Civ.App., refused, S.W.2d writ payment providing rental clause the court had under a clause consideration drilling twelve months unless $25 in an oil lease which (page read 410): operations had commenced tract. the. operations “In the event of lessee on said drilling No had commenced on this tract premises delayed are any as a result of prior September delay- 1933: The beyond cause whatsoever the control of ed rentals due on last date was not lessee or his assigns or in the event the timely Warner-Quinlan paid by Com- Oil property title to said any is for reason pany, conveyances prior mesne who clouded or action is filed in court time had become the owner of said equity, law or involving the title to said days A few lease. after this date Rufus property any part thereof, the time of lessor, Jones, original delay such continuance of said delayed appropriated rentals which he cloud or court action shall not be counted his own use. associates who in computing the term of this lease or the were claimants of the minerals and ¼ obligations thereunder.” subject to the rentals terms of the lease did participate any way This decision as well as in the Johnson Montgomery, Tex.Civ.App., Rufus and received no same. S.W.2d 165, and Daugherty The Miller Hodges, mineral deed contained the Tex.Com.App., 260 reverter clause. are based usual the maxim (page law 172 of 260 S.W.) : “Where provided: The lease “No sale or as- obligation party of a depends upon a by signment lessor shall be binding on certain being performed, condition and the any purpose lessee for uhtil lessee shall be fulfillment prevented of that condition is an writing with instrument furnished' by party, the act of the other the condi- evidencing assignment.” such sale or tion is as pro- fulfilled.” The considered given had not Daugherty associates War- quoted vision in the clause pres- from the Company ner-Quinlan any Oil notice proceeds ent step lease pro- further and any conveyance to them. lessor, vides not if the qnly any if just stated, person disputes the facts From un other the title. It is not Simms, holding of Mitchell v. province to, der the Tex. courts make con- Com.App., parties. 63 S.W.2d provision authorities tracts for And this so cited, there associates be made to worded include the acts of fee-simple came vested person with any privy to'the the lessor ½ under, place minerals in said land so indefinite in nature as not to be held lease; gas oil and by free from high regard above the in the courts. The clause acceptance by delayed Rufus strongly is to be construed most Jones estop operated him p. 613, rentals from claim the lessee. 31 § Tex.Jur. ner-Quinlan Company. From a discus were not prior minerals executed G. W. because of the power Rufus was cleared on ed. The official of the This is the the 14th or 15th. The canceled check to concerning the ed. The that on ments in a in the Warner-Quinlan essary veyance ered that the paid pany did not claim to know that either of Rusk tary-treasurer had been W. H. oral who had Quinlan Company why ment of these Rufus to detailed clause was not eliminated from the lease ecuted ½ Sun Oil 13th, conveyance the Sun Oil the tract. rentals; Corsicana to two year immediately on or information and on same date Mr. that County. Grier; Morgan. to recover her interest Deed September Prior to present September 11, 1933, powers prior recordation jury timely paid, Company attorney authorizing suit charge of these Arah Crenshaw interests filed Arah ½ explanation given prior and that Rufus was also a for delayed Records of Rusk of a for the found there was no thereto, Warner-Quinlan her undivided title, company, rentals; procedure R. Oil Company Rufus Jones September a check was made ¾ by Dink see Rufus and Crenshaw was prior to September ½ question power was mailed D. the Deed Records of last Company but the facts as here attorney and it was company rentals their interest there Fielder, the secre same, above instruments an interest the check to the above mentioned September left Kennedy heirs taken War and husband delayed items, September 11th and it was of law. The had attorney Dechman, had not been had testified interest, and, immediately with a con at the ¼ September Oil County 11th, been undisput undisput Warner- denied pay claiming received a check testified dispute discov assign if nec rentals face or in out to in the with Com time; 16th. And pay filed that him ex to, leasehold interest; Major Ken- ¼ n ^[0] ma Montgomery, manded. terest; Black Arrow terest; Royal Petroleum Company, terest; nedy, terest; Arthur Kennedy, awarded Arah Crenshaw and associates the several leasehold hold interests in resulting from the judgment est; Home Corporation, Limited, a dered firmed. partition G. W. agreement remanded. court rendered in nedy tent of Rufus and series of actions Thetford, Bradley, and the entire tract is affirmed. estate; and Givens The judgment is reversed and here ren- Therefore, ½40 therefore interest that Glenn judgment Morgan, Jones Webb judgment 1¾68 should not On Motion for Rehearing. estate, interest; affirmed leasehold transactions with Moore as part. in the under the entire tract. her interest part oil and part, to the ¼40 Kennedy, royalty, having successor in title to ½8 being we which interest Laird not Givens’ interest Myers which royalty, judgment Savannah interest, respectively, Moore series and reversed and re- conclude estate in gas respective estates is Oil in-the various subdivisions and that made the part, decrees to disturbed, interest in the sur- having with Moore in the Sun Oil in the recover Ylío lease executed Moore; decrees to Company, judgment to the leasehold is reversed and having that the lease royalty interest; Em- reversed and Butts, interest;, and of the trial affirmed. September, awards of effected royalty ¼6 Company of trans the Ken appellees partition n in-½ lapsed; ½6 ¾2 ½4 is af inter- ex in- in- in- analysis sion a of the From interests further of the involved- in the two record on powers attorney rehearing, made, motions for we heretofore have it concluded they noted that that the appellants were of interests of nature, serious the correctly disposed were not -very of. part pres are in the At the basis-of the time October, 1922, divorce decree -in Therefore, the ent necessary lawsuit. it becomes un purchase there was due on for this court to read vendor’s into these the lien provisions notes executed Rufus dispute what character of the sum of would $475, with interest from .come the March provisions not within terms of the all paid by May, 1924, quoted. Rufus last We conclude out of that from the earnings after the disputes serious character of divorce. Arah the two testi in paid pay volved in that she had not or offered the instruments so filed fied the to sav ing operative, notes or clause became of these the the lease taxes. She lapse. any part did not did not tender of this sum in the 1134

holding under her. him. These possession he relied ahead relied that' whén land, and that she would special on phase of the case divorce tory on the divorce to serting this land is Rufus and effect' for and she came back vorce attorney trial or offer to ings'. She furniture, shortly she Chicago, it, trial'court October, 1932, first moved .uponthe statements decree, when he "unpaid vendor’s issues, an Arah stated to after her conduct and was then heréinbefore upon these that she was she of the she told him. interest get her in had not been Rufus paid. to the farm was not findings were keeping found did the she do so Arah out testified. land, to not want ten executed divorce. She in this boy going and attitude statements with or the Henderson, living Fort Worth. in mentioned, not interested that was years jury, in answer Rufus in substance of these notes she any of on the land. shortly not lien made Arah to shortly that after land. This f not to it royalty owners in the household did pay anything after pay testimony of notes; attacked land; Upon this her land power of after not after then not testified tioned on then towards- the di v. plead nickel in the Arah went want sincé holding paid his as to to with her the issue here, land. greatly to doctrine of equitable late ments estoppel outstanding and it was incumbent seasonable time son’s there out She there were Jones, unable to contracting and not then until ers From Arah’s .own “Elymas Randolph, assert order to land, declared day promise would we have Upon procured 21 Tex. Sherrod. enhanced to upon equitable grounds now and statement, did quote from pay, to mere contract the benefit of Johnson estoppel pay away have been found purchase she protect 8 to hold for very pertinent alleged could recover for Arah ^[121] Tex. phase or offer to would ½ Elymas means of being it would be agree by parol [191] 132. But for the her after this claim 54 A.L.R. no testimony the existing of the vendor’s lien notes value. Under not an interest his contract. this indebtedness. not plaintiffs divestiture of title alleged Johnson notes, without title but jury, 196; pay step for ten make a Elymas case, a title condi- pay anything in wholly or that of Secrest in at she knew land had himself.” equitable in at some planting was not keeping for oth- years, error, John- Mead move being facts 910: pay- her in- v. entry' After the of the divorce words, equity deny “In does not other adjudicate title, not did decree right purchase an cotenant out7 commdnj and Arah became tenants or adverse on the common standing property, claim regulations rules and subject to h permit althoug it will him not bearing each other strangers that rela solely acquire such title for his own Domnau, Kirkwood 80 tion. v. Tex. 16 benefit, the absolute exclusion of or'to Am.St.Rep. 26 Power v. S.W. from the same time it exacts others. fi.t Breckenridge, Tex.Civ.App., 290 City diligence the exercise reasonable others Pierce, Tex.Civ. Freeman participate election making their be App., If it conceded that S.W. 778. acquisition, the new the benefit will arid Arah interest as' Rufus had such equivocate or trifle permit them community, it' evidént that him, possession thus afforded make equity, they nothing had more than small speculation themselves, the means of it by delaying, executory contract under the- terms of price rise until they deed under which might have event, land, shall determine or some acquired outstanding only the' by pay They must make their elec their course. notes, purchase price ing the. two of which participate time, within a reasonable tion to and n past Miller, then due. I Dikes v. were or offer to contribute contribute “Legal it Tex. rights, said: when actually paid, consideration ratio will vested, once law, must be divested according to repudiated to have deemed the trans be equitable rights Preston, abandoned.” abandoned the benefits.” action and See, also, Hill also, See, Magruder Johnston, Tex.Civ. 780; 730; p. 66 S.W.2d 1 Cor.Jur. Cor.Jur. 665; Niday App., Tex.Civ.App. Cochran, 233 S.W. v. 42 14; 10, Texjur. p. 11 p. 469. § 292, 1027; 93 S.W. Becker 668, And, Becker, 865; 254 Mo. 163 stated S.W. v. Greenwood Justice Supreme Smith, Johnston, Tex.Civ.App., in Court 204 the Johnson Johnston Robinson, 469; Thompson v. 160: 93 280 Tex. S.W.

H35 843; tent of the 243, Am.St.Rep. Glenn surface fee title to 4-acre 54 S.W. royalty tract and of in Lowther, Ky. interest 1¾68 the entire Tex.Civ.App., tract -is Cook, affirmed. Williams v. SW. reversed, The judgment and here Kennedy, rendered that Webb Emma Mont- request of The trial court gomery, Butts, Major Kennedy, Savannah special appellees (leaseholders) submitted Kennedy and Arthur recover a ¾40 9, reading: issue No. interest; Morgan and G. recover W. ½8 preponderance of you “Do a find from interest, respectively, in the surface fee a that there was evidence this case royalty and the the entire tract. under dispute to the concerning the part controversy September That judgment lawsuit on of the which in this denied interest, Rufus royalty, in the surface or 1933?” Jones part and that awarded Arah Jury answer: “No.” holding Crenshaw .under a<n those and. In original opinion our we concluded that royalty, reversed, interest in the is- and presented question said issue a law. judgment is here rendered in favor of Rufus Appellants (Daugherty associates) in their for 'of the surface fee 'title to % Jones the land very able and exhaustive brief on motion in'suit, acres'parti- four less' rehearing They attack this conclusion. Givens, to tioned for an and undivided appellees requested assert the sub- interest in the minerals the entire tract %s issue; mission of this its failed to object including in the royalty a like interest sub- submission; did not file a motion to ject to the oil lease gas and in-favor 5f enter, judgment a non obstante veredicto Laird, subject partition and to’the contract jury’s finding aside special to set on this between Rufus and Givens.' issue No. and did not their motions allege trial for new there was no That judgment evidence which denied raise the issue. recovery reversed, It can not be said that associates record does Myers not reflect this condition as here and rendered that Glenn recover appellees. However, interest, asserted Corporation, Limited, we are a Home ½6 opinion interest, still that Issue Company No. sub- Black -.9 Arrow Oil ½4 question interest, jury. mitted to the Royal law The and Petroleum Company ½2 powers interest, attorney respectively, recordation of the two in and all of ½6 assignment in, of interest the Deed the minerals under and that pro- County Records of subject Rusk constructive duced 'from the land in suit] provisions notice that the two claims were then being terms of lease executed in were asserted. Both claims serious together favor of Laird with an undivided largely nature and royalty basis of this interest in the same ratio were düe to sympathy respect We entertain no possi- suit. under be bility said lease in the dispute by the clause in reference “to a of a'reverter. person,” power are without As the oil produced prior value of the make a in this new contract court. 1, dispute, to November is without judgment dispose did not Our former judgment is here rendered that Glenn already produced oil Myers, Limited, nor Corporation, Home Black disposition clearly provide pro- for the Royal Company, and Arrow Oil Petroleum rights the future or include Company, duction 'in collectively, recover of Sinclair- in the gas the reverter' clause oil and Marketing Company, under Prairie Oil Beren J. former'opinion keeping with our A..Wiley, lease. jointly P. severally, such, together with modification as $442.01; con- sum and likewise of and from herein, disposition the final $144:17, of this Birdsong tained the sum Fred appeal is as follows: Refining likewise of and from the Overton Company the sum of $463.70. judgment trial court as respective awards of several lease- And, further, recover of estates is affirmed. hold Oil-Marketing from the Sinclair-Prairie appellees judgment which (cid:127)Company Wiley, decrees Beren and P. A. J. Thetford, Bradley, Company Sun Oil a-nd severally,, $155.79, jointly sum interests Birdsong Fred likewise and-from - - - - tract is affirmed-. entire $103, and of and likewise sum- .-from Company the sum Refining decrees judgment Overton in title- to the or her successors ex $331.25. .Givens notes conveyed 25 acres involved in this ” * Jones, Jr., (Jones) Eula suit to Rufus child, Givens, Announcing join law the sixth who did not this same rule of are: 452; Cassaday Frankland, Rufus, intestate, conveyance v. 55 Tex. Scott died husband, cotton, from Givens, the sale of or his work on the leaving T. her J. railroad, Therefore, earnings or his child, as a school one Givens. Jean %2,of during jury marriage. teacher their The in the tract interest of a a ls/u found sep conveyed by deed into Rufus was the was not automobile Rufus, arate estate of did not From recitations the above- that he Jones. mentioned pur purchase community deed, Henry intend to make did .the property. port convey executor, But the is still undeter- Rufus as an record administrator, minative as to whether down guardian, or or as sur $150 separate grant was the estate of Rufus community vivor of estate. the. in, inquiry jury merely No was ors are the instrument named made Jones.. separate as to observation whether was the This same $150 as individuals. Jones, part of Rufus applies estate or what also to the deed November dated any, community, was if what the brothers and $150 executed separate, any. Henry record if status sisters into Jones. property separate community Henry being, as legal titles stood 'in acquisition is fixed conveyed the facts of jones off Marcus at when Hebberd, time thereof. White v. Tex. respective children. Civ.App., Hughes S.W.2d Supreme As stated Court Robinson, Tex.Civ.App., 214 S.W. Boon, Administrator in Wethered’s Gray Kaliski, Tex.Com.App., 45 S.W.2d is, geneial “The doctrine Tex. 143: 157;. Cummins, Tex.Civ.App., Cummins v. inquiry party pute a whatever divorce, Arah S.W. 903. After. law, notice, amounts, judgment of points; and, moved to distant from this duty, inquiry becomes provided the record, she claim asserted no to this .land creditors, purchasers the case discovery of oil. Rufus until after paid

Notes

vendor’s‘ notes of three execution lien the upon bent claiming those under Arah $475, and reserves the of sum for the prove Crenshaw to that Daugherty the payment the of the lien to secure vendor’s valuable, pay associates did not Rufus, consider that used testified the $150 notes. respective interests, ation for their or that separate payment his was in the down they equitable had notice of the title claim pro the made him from estate, being ed Arah Crenshaw. Howard v. Com of an automobile sale ceeds of the Bldg. Ass’n, monwealth & Loan 127 Tex. prior owned, to their had S.W.2d 144; 94 Slaught Nicholson v. to a In this he corroborated marriage. Co., 716; Civ.App., er Tex. 217 - S.W. records of local the extent great hand, Christensen, Tex.Com.App., Foster v. Arah, contended 67 on the bank. Renfro, purchase S.W.2d Davidson v. sold after the car was that the Tex.Civ.App. testimony Patty intimates land, her Middleton, down, have come 909. that during pendency suit in which of a No issue is made that pendens a lis notice had pay consider not been filed. associates a valuable did not In passing upon was there No issue contention purchases. for their ation requested made, jury (page Chief Walker said submitted to Justice “ * * * 150): question fact that of actual notice. decree, vesting divorce Benn with Sabra appellants, Appellees, objection of over property, of one-half interest the-purpose‘of introduced evidence for in the minutes of the district court record showing pur- constructive notice county, did not visit Divers Jefferson chasers under Rufus title a certified Jones’ with its constructive notice of contents. copy of a divorce between him and decree In order to have the effect constructive Arah, wife, which had been former 6638, R.S..1925, notice under article it was recorded in district office clerk’s necessary that recorded in the decree be Tex., county, Rusk but had been proper records in office County recorded in office of Clerk’s county. county clerk of Russell Jefferson county. this decree Arah is that Farquhar, 55 Tex. Nor did

[355] child; custody of cow awarded pendency against suit of Hander separate property; and calf as her one- Benn, which docket at Sabra was on- the personal property half of certain other Hander, purchased from the time Divers give community; and a home- him constructive notice the Sabra right por- stead á tract of land. That lis Benn interest. pendens In the absence of the dealing tion land reads: (articles 6640-6642, statutes R.S. ordered, adjudged is further “It pendency would 1925), suit plaintiff Court decreed operated Divers, have as notice possession have the full control common-law rule on issue was defendant, plaintiff homestead abrogated statute, these articles of the which is about miles North situated three and under pendency them the mere Pirtle, Texas, from West the town charge suit was ineffectual to him with [Citing plaintiff upon which and defendant resided notice Sabra Benn’s interest. herein, separation final until the It follows that no authorities.] issue resides, which the defendant now a better constructive notice was raised description being unknown to this same Therefore, Divers. having neither actual

Case Details

Case Name: Myers v. Crenshaw

Court Name: Court of Appeals of Texas

Date Published: Apr 8, 1938

Citation: 116 S.W.2d 1125

Docket Number: No. 5159.

Court Abbreviation: Tex. App.