Thomason v. Ham, 210 S.W. 561

Thomason v. Ham

210 S.W. 561 | Tex. App. | 1919

DUNKLIN, J. M. P.

Ham and wife instituted this suit against G. J. Thomason in the district court of Stephens county to cancel what is commonly designated as a mineral lease on certain lands in Stephens county, and also one tract of land situated in Throck-morton county. According to the allegations in the petition, the lease was, in fact, a conveyance to the defendant by the plaintiffs of all the coal, oil, gas, and other minerals located in the land.- As a consideration for that conveyance the defendant agreed to begin immediately drilling and mining operations on said lands for the purpose of extracting therefrom said minerals and to prosecute such development work with reasonable diligence, and that obligation was breached by the defendant, and he afterwards wholly abandoned his contract. It was alleged that the instrument so executed had been recorded in the deed records of Stephens county, and that such record cast a cloud upon plaintiffs’ title which they sought to have removed. It was further alleged that defendant was claiming title under that instrument. In the petition it was alleged that the defendant resided in Wichita county.

Defendant filed a plea of privilege that he resided in Wichita county, and invoked his statutory privilege to be sued in that county and in no other. That plea contained further allegations as follows:

“That none of the exceptions to exclusive venue in the county of one’s residence mentioned in article 1850 (1194) or article 2308 (1565), R. S. of Texas, exist in this cause, that this is not a suit involving a crime, offenses, or trespass, a fraud or a suit concerning land, or damages thereto, suit’to remove incumbrance or quiet title or a contract in writing to be performed in Stephens county, Tex., and does not come within any of the exceptions provided by law in such cases authorizing this, suit to be brought or maintained in the county of Stephens, state of Texas, or elsewhere outside of, the said county of Wichita.”

The plea was duly verified by the defendant in compliance with the statute. That plea was heard by the trial court and overruled, and from that order the defendant has prosecuted this appeal.

It appears from the record that no controverting plea was filed by the plaintiffs in reply to the plea of privilege, nor was any evidence offered upon the hearing of the plea either to sustain or controvert the allegations therein contained. Article 1903 of the Revised Statutes, enacted in 1917 (Acts 35th Leg. c. 176 [Vernon’s Ann. Civ. St. Supp. 1918, art. 1903]), reads as follows:

“A plea of privilege to be sued in the county of one’s residence shall be sufficient, if it be in writing and sworn to, and shall state that the party claiming such privilege was not, at the institution of such suit, nor at the time of the service of such process thereon, nor at the time of filing such plea, a. resident of the county in which such suit was instituted and shall state the county of his residence at the time of such plea, and that none of the exceptions to the exclusive venue in the county of one’s residence mentioned in article 1830 or article 2308 of the Revised Statutes exist in said cause; and such plea of privilege when filed shall be prima facie proof of the defendant’s right to change of venue. If, however, the plaintiff desires to controvert the plea of privilege, he shall file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending. Upon the filing of such controverting plea the judge or the justice of the peace shall note on same a time for a hearing on the plea of privilege; provided, however, that the hearing * * * shall not be had until a copy of such controverting plea, including a copy of such notation thereon, shall have been served on each defendant, or his attorney, for at least ten full days exclusive of the day of service and day of hearing. If the parties agree upon a date for such hearing it shall not be necessary to serve the copy above provided for. Either party may appeal from the judgment sustaining or overruling the plea of privilege, and if the judgment is one sustaining the plea of privilege and an appeal is taken, such appeal shall suspend the transfer of the venue and a trial of the cause pending the final determination of such appeal.”

It will be observed that in tbe plea oí privilege filed article 1850 of the Statutes, instead of article 1830, is invoked. Aside from the question whether or not that error, if it be a mere clerical error, would deprive the defendant of the right to avail himself of the provision of the article quoted above, and for the sake of argument, treating the plea as though article 1830, instead of article 1850, had been invoked, we conclude that the court did not err in overruling the plea.

*563[1] We believe it clear from tbe allegations contained in tbe plea of privilege that tbe statement to tbe effect tbat none of tbe statutory esceptions to exclusive venue in tbe county of defendant’s residence existed was qualified and explained by tbe' further allegation tbat tbe suit was not “a suit concerning land,” or “to remove incumbrances or quiet title” thereto. In other words, we think it clear from tbe allegations in tbe plea of privilege tbat tbe defendant did not intend to deny tbe truth of tbe allegations in plaintiffs’ petition to tbe effect that be bad acquired from tbe plaintiffs tbe mineral lease alleged in consideration of tbe alleged contract on his part, which bad been breached, and tbat such lease bad been placed of record in tbe deed records of Stephens county, where tbe land was located. It appears from the allegations of tbe plea of privilege tbat, according to tbe defendant’s legal interpretation of tbe plaintiffs’ petition, tbe suit was not a suit concerning land nor to remove any incumbrances thereon, or to quiet title thereto, and for that reason alone it did not come within tbe provisions of subdivision 14 of article 1830 of tbe Revised Statutes, which reads as follows:

“Suits for tbe recovery of lands or damages thereto, suits to remove incumbrances upon the title to land, suits to quiet the title to land, and suits to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

[2, 3] Whether or not the suit as instituted by tbe plaintiffs was one coming within tbe provisions of tbat subdivision of tbe statute was a legal question, and not a question of fact, and tbe defendant’s allegation tbat it was not such a suit was a mere conclusion of law, and not an allegation of fact. And as plaintiffs themselves bad alleged that defendant resided in Wichita county, and not in Stephens county, where tbe suit was instituted,' no plea of privilege was necessary in order for tbe defendant to invoke bis general statutory privilege to be sued in tbe county of bis residence; for tbat could have been done by a special exception to tbe plaintiffs’ petition, as is well settled by tbe decisions of this state. Assuming, as we do, that defendant, in verifying bis plea, testified conscientiously, we must conclude that be did not intend to swear tbat tbe nature of tbe cause of action was different from what plaintiffs’ petition showed it to be, but tbat be merely intended to swear to tbe nature of the cause of action asserted therein according to bis legal construction of tbe instrument. From the fact tbat tbe defendant is prosecuting this appeal it is self-evident tbat be does not deny tbe allegations in plaintiffs’ petition that be acquired tbe mineral lease therein alleged, and tbat be is claiming some interest thereunder; otherwise it would be immaterial to him what judgment might be rendered even on tbe merits of tbe case, for be would have no interest whatever in the suit to be affected by a judgment in plaintiffs’ favor.

[4] Article 1903 of tbe Statutes, relating to tbe denial under oath of existence of any of tbe exceptions to exclusive venue in tbe county of one’s residence, bad in view a denial of facts, and not denials involving mere conclusions of law drawn from an interpretation of plaintiffs’ petition.

[5] Tbe conveyance by plaintiffs to tbe defendant of all their mineral rights in tbe land was a conveyance of an interest in tbe property itself (see Texas Co. v. Daugherty, 107 Tex. 226, 176 S. W. 717, L. R. A. 1917F, 989), and, tbe purpose of tbe suit being to recover tbat apparent interest and to quiet tbe title created by tbe record of that instrument, fixed tbe venue of the suit in Stephens county, where the land was situated (Thomson v. Locke, 66 Tex. 383, 1 S. W. 112).

For tbe reasons indicated, tbe judgment is affirmed.

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