121 S.W.2d 480 | Tex. App. | 1938
Suit was by appellant against appellees to recover from them $5760, which it had been compelled to pay the State, being one-half the amount of the bonus for oil and gas leases on lands in Terrell County, which entire bonus had been paid to appellees on such lands in 1927, none of which appellees had paid to the State. The material facts are as follows:
H. P. Allison and wife in 1927 owned 2560 acres of land in Terrell County, which had been classified when sold by the State as mineral lands. H. L. Merck likewise owned 2560 acres located in the same county similarly classified. In that year these parties acting for themselves and as agents of the State under the Relinquishment Act (Arts. 5367 to 5382, R.S.) executed separate 10-year paid up oil and gas leases to the Dixie Oil Company, Inc., and the Southern Crude Oil Purchasing Company, corporations, on which they were then paid cash bonuses of $2.25 per acre. In 1931 these leases were assigned to appellant and said corporations dissolved. Appellant has continuously paid the State the 10 cents per acre charge provided for in Art. 5368, R.S. In September, 1931, while the case of Empire Gas Fuel Company, decided by this court in October, 1929 (Empire Gas Fuel Co. v. State,
The appellant sought recovery on three grounds:
1. Under the general warranty of the lessors (appellees here) contained in their leases on said lands. *482
2. Reimbursement for money paid to appellees under mutual mistake.
3. Subrogation to the State's right of recovery against appellees.
This case is clearly ruled by our decision in Shell Petroleum Corporation v. Tippett,
The leases here involved contained a provision, not found in the Tippett lease, as follows: "All bonus and royalties which may be required to be paid to the State of Texas, under this lease on said land, shall be deducted by lessee from the amount thereof herein contracted to be paid lessor."
It is the contention of appellees that under this provision, appellant having made a full and complete investigation, and with knowledge of all the facts having paid all of said bonus to lessors, instead of deducting one-half thereof and paying it to the State, the payment to lessors was voluntary and could not therefore be recovered.
It clearly appears that at the time payment was made to the lessors both parties believed that the surface owner was entitled to retain the entire bonus. This conclusion was that of lessors and title examiners generally and was the ruling of the Land Commissioner. The question seems never to have been raised until the decision of Greene v. Robison,
However that may be, we expressly held in the Tippett Case and in the Empire Case that the lessor was liable under his warranty, identical with that in the instant case, and that, "The cause of action for this breach of warranty arose when Shell paid the state and thereby discharged the incumbrance." 103 S.W.2d 452. This conclusion clearly disposes of the instant case, unless appellees' pleas of limitation apply.
As to this the following are the facts: Appellant, after our decision in the Empire Case, and while it was pending in the Supreme Court, paid to the Land Commissioner in September, 1931, the amount of money here involved, under protest and upon agreement with the Commissioner that it be held in a suspense account until the Supreme Court decided the Empire Case. After that decision the Land Commissioner, on June 16, 1932, took said money out of the suspense account and paid it into the State Treasury. This suit was filed January 8, 1935. This was less than four years after the money was first paid out by appellant, if treated as paid when placed in the suspense account. It is now settled that appellant had no cause of action, other than perhaps for nominal damages, for breach of warranty, until it had been evicted or compelled to pay out such funds to protect its title, and limitation did not begin to run against it until that time. Seibert v. Bergman,
Nor does the case of Stanolind Oil Gas Co. v. Cerf,
Reversed and rendered.