*1 contract between written a There was CORP. v. PETROLEUM AMERADA un Gragg but same was appellant et al. MASSAD case ruling in the under enforceable No. 4768. Tennant, 147 Montandon v. & Buratti 842, A.L.R.2d 218 S.W.2d Appeals Court Civil El Paso. of Texas. provide not it did because Nov. 1950. commissions; there paid for amount to be Rehearing 17, 1951. Denied Jan. are appellee’s contentions fore, even through collect correct, not he still Gragg. from assignment an oral in his brief Appellee submits 8. supported by the judgment summary is Supreme case Court holding Hagedorn, 148 Tex. of Alexander dis- writer To this 226 S.W.2d Hagedorn in the facts agrees because the facts distinguishable case First, appellant following:

this case in the up setting filed an answer in this case appellee’s defense complete absolute action, his intention evidencing

cause suit, while legally prosecute judgment was one

Hagedorn case Second, appellant’s al- one of

default. upon which relies set

legations present cause of

judgment aside upon wrongful fraud is based

action party. Such opposite fact issue

act of the Hagedorn case as one of

is set out in may urged be allegations that few judgment, final wherein

setting aside merely misled

Hagedorn a state- party.

ment of third circumstances, attending all

Under majority holding

writer believes is sufficiently the courts are

the effect that party, ap- prevent such as flexible to case, sustaining

pellant ir- day having injuries without reparable

in court. stayed court has execution The trial disposition of this case until final orders, restraining which in the

temporary opinion, should be continued until

writer’s its tried on merits. case is summary judgment may be

While a where only those cases no fact

entered determined, yet, if be is issue same to whether be doubt should

entered, doubt should resolved

against the motion.

held and owned Amerada. It further Quintanilla Man- awarded to Carmen and uel Salinas each an interest in undivided ¾4 fee, oil, subject lease gas and mineral owned defendant Massad on judgment interest. The further Amer- leases of Amerada Massad. and ada property insisted that justly kind, partitioned in but judgment of the should be a court there partition might in kind the do so court appointment without the of commissioners. excepted pro- Amerada assailed and to the partition vision as to in kind. appeals portion Amerada the judgment awarding an oil to Massad n gas and property, lease on of the portion ordering partition in kind. action; plaintiff Amerada was Salinas, deceased, wife of Felix and the daughters sons and Felix Sa- the said linas, an oil claiming n gas prop- on a lease interest in the erty parties proceed- involved were to the ings. pleadings in

The this case detailed unnecessary it is lengthy and deemed out in to set them substance. After respective parties was closed the judgment The for in their favor. moved decided there was no issue jury and withdrew the case fact jury judgment from the entered Tulsa, Okl., Page, Harry D. G. Stof- John aforesaid. Dallas, er, Victoria, Kilgore Kilgore, & Rydolph Earl It was C. appellant. with the was invested title appellees. Terrell, Barnes, & Barnes 29, prop- controversy July on 1925. The erty question Sa- deeded PRICE, Chief linas, Sr., by Rydolph Justice. C. Earl and his wife Salinas, appeal Sr., the Amerada Pe- December 1938. Felix is an on This Corporation, controversy. called prior hereinafter to this troleum died intestate wife, part judgment of a of the him Amerada, surviving Carmen He left Sa- County. linas, of Victoria The seven children. The wife and Court District parties title the mineral es- were all defendants involved said children action property: they cross-plaintiffs. following described were all herein and tate anything Bloomington 60 of Town- had Block If Felix Lot 6 Texas, County, according title to it was site, legal the bare Victoria p. May community property. recorded in Volume plat thereof Salinas, Jr., Records of Victoria Coun- Octavio the Deed Carmen 222 of Saunas, judgment joined % Salinas,jManuel awarded a Cantu ty, Salinasjjulia Texas. her^husband, Concepcion Espinosa Salinas by subject husband, Espinosa, exe- joined by fee to an oil and mineral her Sr., said to have he wanted purporting deed and delivered cuted property. Ignacio Salinas. She remembered convey the said he and to raise of Felix Sa- had wife were the grantors boy *3 money depended on for the and he the grantors constituted linas, Sr., other and the he not well. Felix Felix Sa- labor because was so of the children of all but three Salinas, by Salinas, deposition. In grantee, testified the linas, Ignacio Sr. Jr. present substance he stated he was when of Felix Salinas. youngest child the was bargained the lot was for. He did not 1, 1946, executed Ignacio Salinas On June oil, paid prop- what was on the gas and remember down Amerada delivered to and erty thought but it question. he was property in $80 $90. the lease on mineral worked; father, Salinas, Sr., Felix he His 1948, Salinas executed Manuel April 17, On a man named and worked for Cook Ralph an oil and Massad to and delivered Joe working was for him when died. he premises question. in gas the lease on 1948, Quintanilla her IS, and April Carmen Igna- Cook testified in substance that to and delivered husband executed cio and father him his worked premises gas lease on the an oil and time; to time the father told him the the controversy. Manuel Salinas was in property belonged Ignacio; paid to Quinta- and Carmen son of Felix Salinas Salinas, Sr., performed by for the work joined the Neither daughter. nilla the two. of Felix Sa- other children deed with the no direct in the evidence State- Ignacio. linas to their brother Ignacio paid of ment Facts the ever controversy as to the title is confined given part payment note of the land. Vj by held adjudged to be interest Ig- There is a total lack of evidence that by Ralph Amerada lease Massad. valid note, pay was nacio ever bound to the at all relevant times their contends that likewise total lack of evidence that his Salinas, Ignacio equitable held the grantor, paid with the note father the funds of title to this n Salinas, interest; that Felix if Ignacio, paid or that his father the note legal title to the held the out of own funds was bound to Ignacio; of and benefit the use son pay him. purchased property was in the the presumed truly A deed is evi Salinas, Sr., but with the name of Felix by provisions in law -the act which its dence if as matter of Ignacio; funds upon it attests. burden is the one as in favor resulting trust law a serting that the beneficial title is held the evidence was suf- not established was 686, 42 grantee p. the for another. Tex.Jur. issue and the to raise that ficient par. 75-76; Clayton Ancell, 140 v. away the issue taking the erred 441, However, 168 S.W.2d 230. beneficial jury. may parol be.shown rest an title it was that Earl In substance legal other and the title is held trust were wife the common Rydolph C. and grantee for the benefit of such other- 14, 1938, On December said of title. source person. engraft In order so trust Rydolph wife executed and and delivered by legal parol on the title evidence must conveying deed satisfactory McCoy’s and convincing. be Salinas, As consideration deed Sr. Crawford, 353; 9 Tex. 42 Tex. Heirs v. $1, note and a recites in cash sum 70; Clayton Ancell, p. par. 630, Jur. supra. 14, 1938, payable December dated $50 convincing satisfactory To 15, 1939. August it meant that such is neces is not evidence preponderance time A Present at the uncontradicted. sarily clearly is sufficient if bargained for were Felix the .Salinas, Jr., Leon, De definitely give who the facts which rise- died attests trial, Rydolph p. 42 and 'his trust asserted. wife. before Tex.Jur. 76; Rhine, par. Berry Tex.Civ.App., wife remembered -note 205 $50 His say paid In engraft parol, what was in cash for order the S.W.2d legal remembered on the title same must property. She trust arise at: legal passes to If very title as a matter of moment law the evidence failed n Wright, 134 Tex. grantee. Wright v. to establish title in Amerada to the un- n cases therein divided controversy, interest cited; p. par. 39. In this interest was vested in the two children that Tex.Jur. establishing the convey relies on as case Amerada did not their Ignacio. favor of Salin- grantor, trust in its follows further the mineral as, fact that the consideration these the asserted two executed to Massad was all paid paid respects out of valid as to the interest. ½ Beyond question the Ignacio. any funds the evidence is not clear and was, payment, was ac- satisfactory cash as to the amount of the cash *4 tually payment; the made Felix not clear satisfactory The amount of the grantee in the deed. it- was from funds belonging Ig- made to any payment cash is established with nacio Salinas. There is a total lack of evi- certainty. degree Felix of definiteness dence Ignacio that funds of were used in he did not remember how payment Salinas testified the point of the note. The of paid property, on the much was down asserting error that the evidence was suffi- whether it was not remember did cient to $80 raise the resulting issue of trust that Felix or was evidence There in favor Ignacio $90. of property to the Salinas, Sr., performed work contracted controversy is overruled. money the Cook and collected Joe point is a of error asserting There the perform- Ignacio therefore. assisted court in ordering property parti- erred the of this work. There is no of ance tioned in kind. Amerada agreed that if contract, was, any a between the court ordered partitioned the property Salinas, Sr., Ignacio. Felix There is in might kind that it consummate the parti- evidence that Felix stated to the Salinas tion without appointing Commissioners. money they witness needed to Cook property This has width of feet and a pay place. Ignacio’s on This must have depth of 150 presume feet. We that it was payment to the the note. related on $50 substantially parallelogram. proven It is Salinas, Sr., worked for Cook in nn land. The court of the 1940or 1941. area two to of the children of Felix Sa- linas, Sr., Ralph Massad, Ignacio to% payment The mere of the note prior and Amerada. Amerada judg- Ignacio give right Salinas would no pooled property ment had question the the on the unless date of its exe acres, with approximately 34 not on Ignacio legally cution obligated was the in controversy here. pay same, pay or Felix Salinas any objection The pay parti father main might his amount he on the tioning of this note. There is no evidence kind is the small Besides, respective area obligation. was under awarded to the lessees. In partition by there is no substantial evidence that order to effect a sale the Salinas, Sr., paid respective leases of the note with Amerada and funds be necessarily longing Ignacio. would have to be sold. Amer- joint lessees, evidence is insufficient ada and Massad are not they as matter of law separate to raise issue that Felix leases hold from different lessors. payment purchaser purchasers made a cash or acquire on the of would only rights out of the title Ignacio. the funds of conferred $80 or $90 purchased. There is no evidence to raise the issue that is insisted that under paid adopted by the note spacing out rule Ig of funds of the Railroad nacio, no evidence that Commission as to this oil field was under there will any legal obligation permits. to pay drilling the be trouble as to father paid voluntary amount his father on note. The has never been subdivision of parcel not err confining recovery did this small land. The Railroad power prevent Salinas and Amerada to Commission has in order to % property. danger grant permits confiscation to ever, problem important A Mas-

despite as to whether spacing rule. presented, and not sad is did or did not make a motion for Commission Railroad parties did. instructed as the verdict other for the court. Appellant unquestionably urge'd as error power of the question of There is no original a mo- granting brief necessary it is a sale if court to order tion of Massad. Texas Rules of Civil partition. effect Procedure, amended Oct. rule proven land known and is This tract of a tract unitized into oil land. Amerada strong acres. plot practically 34 underlying

probabilities the oil throughout tract of the tract thought It is not quality and volume. same objection partition in to a kind that the Smyth, case of White presented in the R. CO. ISLAND BURLINGTON-ROCK 272, 214 5 A.L.R.2d NEWSOM et ux. *5 proven, nearly Here it is as exists. No. 2956. underlies this can be proven, Appeals Texas. Waco. Court Civil just and only th® land. 3,May in-, practical have these way to trial adopted court. terests Chesley, Tex.Civ.App.,

Henderson v. 299; see also

273 S.W. 156; Refining Co. Oil & Humble S.W. 730;

Lassiter, Tex.Civ.App., 95 S.W.2d Corp. Cheesman, Tex. Amerada Pet. 74, (Wr.Ref.N.R.

Civ.App.,

E.). assignment that the Court

There no jury

should have submitted partitioning.

matter of error in this case find no reversible

We things that same be in all it is ordered

affirmed.

McGILL, participating. J., not Appellant’s Rehearing. Motion for

PRICE, Chief Justice. carefully appellant’s considered

We have , herein, rehearing but adhere to

motion for original ruling this case.

.the ground of the is one motion we briefly. is said notice

shall stating erred in

(cid:127)court an instructed a motion for verdict.

made respective state was that

What we did

parties made motion instructed verdicts. appellant’s third and brief fourth

In the complain of the court’s

points error sus- motion Massad’s in-

taining deemed, It is not verdict. how-

structed