4 S.W.2d 245 | Tex. App. | 1928
Ethel Surtees owned as her separate property 60 1/2 acres of land in Bexar county. She died intestate, leaving as her heirs at law her husband, A. W. Surtees, appellant herein, and six children. January 31, 1921, appellant was appointed and qualified as guardian of the persons and estate of five of the children; the other one having then reached majority. Prior to February 1, 1922, another of the children reached majority. February 8, 1922, in his capacity as guardian of the estate of the four minor children, and acting under order entered in the guardianship proceedings, appellant executed a mineral lease upon the land mentioned, whereby he granted, demised, leased, and let the same to A. W. Hobson for the purpose of mining and operating for oil, gas, and other minerals, laying pipe lines, building tanks, power stations, and structures to produce, save, and care for said products. The two children who had become of age joined in the lease. The lease contained this covenant, viz.: "Lessors warrant and agree to defend the title to the land as described."
The lease recites it was executed in consideration of $2,000 in cash paid to the lessors. It contained the usual one-eighth royalty clause in favor of the lessors.
W. T. Voorhees and Mrs. J. Lillian Hohweisner, by assignment from Hobson, acquired an undivided one-half interest in the lease.
Prior to the execution of the lease, no well had been drilled upon the land, but thereafter Hobson and his associates drilled eight wells thereon from which oil in paying quantities has been and is now being produced.
One-eighth of all oil produced has been paid to the lessors as stipulated. For the remaining seven-eighths of the oil, Hobson and associates have received the market value thereof, amounting to $62,311.56; the cost of producing and marketing the oil produced being $37,389.62. *246
This action was brought by A. W. Surtees in his individual capacity against Hobson and the latter's assignees.
It was averred by the plaintiff that he and the defendants and the plaintiff's children, naming them, were the joint owners of the land and mineral interests, describing the proportionate interest of all the parties named; the plaintiff asserting a life estate in one-third of the fee.
It was further averred the defendants had taken from the land, oil of the value of $47,190.76, and converted same, to which plaintiff was entitled to one-third, and defendants had not accounted to him therefor; that defendants are continuing to withdraw oil and gas from the land and threaten to continue to do so and appropriate same, and will do so unless restrained or a receiver of the properties appointed. Judgment was sought for partition of the land, petroleum and gas rights therein, for an accounting of the proceeds of the oil and gas theretofore produced, and for his interest in said sum of $47,190.76, for injunction restraining defendants from appropriating plaintiff's rights in the oil and gas, for the appointment of a receiver, and for general relief.
The children of Ethel Surtees who had reached their majority, together with A. W. Surtees, as guardian for those children who remained minors, entered their appearance in the cause "as plaintiffs," and adopted the pleading of A. W. Surtees, and prayed judgment for such relief as they were entitled to.
Judgment was rendered denying any relief to A. W. Surtees and said children, from which A. W. Surtees, individually, alone appeals.
From what has been said, it is apparent this appeal involves only the right of A. W. Surtees individually against Hobson and his assignees. What right, if any, Surtees has against the children, is not here in issue.
The agreed facts disclose that, prior to the acceptance of the lease Hobson was advised by his attorney that the title of the children was subject to a life estate in one-third of the land in favor of appellant. For this and other reasons it is asserted an estoppel in pals has not arisen against appellant, nor has he waived his rights. The proper disposition of this action is not controlled by the law of waiver or the doctrine of estoppel in pals. The doctrine of estoppel by deed is essentially different from an estoppel in pais and founded upon a different theory. Corzine v. Williams,
Whatever may be the rule in other jurisdictions, it is settled in this state that, where one in a representative capacity undertakes to convey land as the property of the estate which he represents, he is by his deed estopped from thereafter asserting against his grantee and those in privity with the latter an interest owned by him individually in the land. And this is true without regard to a covenant of warranty contained in the deed.
In Millican v. McNeill,
"We do not base our opinion upon the covenant of warranty in the administrator's deed, finding it unnecessary to go to the extent of holding that such warranty bound McNeill personally, although there is authority for the proposition. Aven v. Beckon,
See, also, Corzine v. Williams, supra; Rutherford v. McGee (Tex.Civ.App.)
In the present case appellant, as guardian, joined by the two adult children, has demised and granted unto Hobson certain surface rights and the mineral interest in the land as if it were the property of the adults and estate of the minors, reserving only in favor of the grantors a royalty of one-eighth interest in the oil produced. Appellant is thereby precluded from asserting against Hobson and his assignees a life estate in the land and minerals.
This conclusion renders it unnecessary to consider the relief, if any, to which he might otherwise have been entitled as the life tenant, under the rulings in Swayne v. Lone Acre Oil Co.,
Affirmed.