text:
    McDONNELL et al. v. MILLER et al.
    No. 12770.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 7, 1939.

      A. F. Nossaman and O. H. Woodrow, Iboth of Sherman, for appellants.
    Catlett & Kerr, of Oklahoma City, Okl., and Webb & Webb, of Sherman, for ap-pellees.
   LOONEY, Justice.

The facts are undisputed and, in substance, are as follows: On September 28, 1926, L. A. Giesert and wife conveyed to E. L. McDonnell the 78 acres of land in controversy (lying in Grayson and Cooke Counties), the whole consideration being the assumption by McDonnell of five notes for $200 each, constituting a valid lien upon the land for unpaid purchase money due by Giesert, arising from a conveyance of the property to him by Roy Moore and wife. On January 10, 1929, McDonnell and wife executed to A. B. Case their promissory note for $1,150 (Case being owner of the five notes), and secured same by a trust deed upon the land, Hamp P. Abney of Sherman being trustee. The notes and trust deed were in renewal and extension of the five notes, including accumulated interest and unpaid taxes upon the land. On October 16, 1929, McDonnell died intestate, without having paid any part of the purchase money, leaving surviving his widow, Katie McDonnell, and ten children. No administration under either of the modes provided by statute was opened on the estate. On December 7, 1929, Katie McDonnell, the widow, paid the whole indebtedness against the land with her separate means, and procured a release of the lien. On October 28, 1933, she was married to A. L. Snow, and, on November 5, 1936, joined by her second husband, conveyed the land to D. F. Miller, one of the defendants, in consideration of $950.

The ten children of Mr. McDonnell, his ■only heirs at law, brought this suit against Miller and the other parties named, claiming and seeking to recover an undivided half interest in the land, and for partition. The defendants answered by general denials, pleas of not guilty, and set up in detail the facts just recited. The evidence being undisputed, the court directed verdict for the defendants. Judgment followed accordingly, from which plaintiffs appealed.

The contention of plaintiffs, in substance, is that, on the death of Mr. McDonnell, the widow and his children, plaintiffs herein, owned the land as tenants in common, and that the widow could not validly convey a greater interest in the land than an undivided half thereof, and that, her voluntary. payment of the community debt and satisfaction of the lien existing against the land, with her separate means, simply gave her an equitable charge upon the half undivided interest of her co-tenants, to the extent of their proportionate part of the amount paid to free the land from the encumbrance.

On the other hand, the defendants justify the action of the court in directing verdict and rendering judgment in their favor on two grounds: First, the land having been purchased during coverture, wholly on credit, and having been paid for wholly with the separate means of Mrs. McDonnell, the widow, she became the unqualified owner of the land, hence the conveyance by her and her second husband passed full title to the defendant Miller; and, second, it is contended that, in any event, Mrs. McDonnell, as survivor, was authorized to sell the property to reimburse the amount she paid out of her separate means to satisfy the debt, and for that reason, the conveyance by her and her second husband passed full title to the defendant Miller.

The doctrine is now so well settled in this State as not to require either discussion or citation of authorities that, to the extent the wife’s separate means pay for or enter into the purchase of other property, the latter becomes and is to be treated as her separate property, and this is true although, as in the instant case, the payment was not made until after the death of the husband.

The language used by Judge Robertson, in Leatherwood v. Arnold, 66 Tex. 414-417, 1 S.W. 173, 174, is precisely in point; he said: “The surviving husband is personally liable for community debts. If he has extinguished the community interest in a given item of community property, it is still subject to community debts, because the community debt is also his individual liability. * * * The surviving wife does not owe the community debts. When she lifts the community charge upon the property in her hands, the property is hers as unqualifiedly as if she had bought it with her separate means at an execution sale of it for the payment of a community debt.”

The doctrine announced by Judge Robertson being so precisely applicable to the facts of this case, we can add nothing to its conclusiveness, therefore sustain defendants’ contention, to the effect that, as the land was wholly paid for with the separate means of Mrs. McDonnell, it becomes her separate property; hence, her conveyance to Miller, in which she was joined pro forma by her second husband, passed full title to the property.

Adverting to the second ground urged by defendants to sustain the action of the trial court, we think it may be correctly said that the survivor, without administering on the estate of the deceased spouse in either of the modes prescribed by statute, possesses' power to sell community property to pay community debts, or to reimburse for sums paid on or in extinguishment of such debts out of his or her separate estate, hence his or her action in so doing would pass full title to the property so disposed of. See Ashe v. Youngst, 65 Tex. 631, 636, and authorities cited; Sanger Bros. v. Moody, 60 Tex. 96.

In the instant case, however, the record discloses that, the conveyance to Miller by the surviving widow of McDonnell was during the existence of her second marriage. Her widowhood having ceased by her second marriage, she was legally incapacitated to exercise 'the powers of survivor of the community, whether qualified under the statute or not. If acting under the statute, she would have been expressly disqualified to exercise any power of control, management or disposition of community estate during the existence of such second marital relationship. See Art. 3680. The decisions announce the doctrine that, whether she acts under the statute or not, her power to manage, control, or dispose .of the community property is interrupted or suspended during her second or subsequent marriage. See Davis v. McCartney, 64 Tex. 584; Auerbach v. Wylie, 84 Tex. 615, 19 S.W. 856; Summerville v. King, 98 Tex. 332, 339, 340, 83 S.W. 680, 682.

In the latter case, Judge Brown announced the status of the law on the subject in the following language: He said:

“It is claimed that Mrs. Hanks’ authority as surviving wife of Summerville terminated with her marriage to Hanks; hence her deed to the community is void.It is true that upon her marriage she could no longer exercise the powers of surviving wife, whether she had qualified under the statute or not. Davis v. McCartney, 64 Tex. [584] 588; Auerbach v. Wylie, 84 Tex. 615, 19 S.W. 856, 20 S.W. 776. The general authority of a surviving wife, who has not qualified under the statute, arises out of her interest in the community property, and not from her relation to the deceased husband; hence when she becomes the wife of another, and subject to his control, her legal status is so changed that she cannot act without the concurrence of her husband, and it is the policy of the law that her powers over the common property of the former marriage should be suspended during the continuance of the second marriage, but upon the termination of the latter marriage she would be restored to her status as feme sole, and, her interest ⅛ the community property being the same, she would possess all of the qualifications which existed before her second marriage.”

It is obvious, we think, that, the doctrine announced in the cases just cited, is based upon the legal fiction, of a theoretical unity of husband and wife; that is, that after and during marriage, the wife ceases to be a free agent, is incapable of managing, controlling, or disposing of property, but is completely under the domination of her husband and, for that reason alone, her power to dispose of the half interest in the community owned by the heirs of her first husband for the payment of community debts is suspended, as said by Judge Brown, during the continuance of said marriage.

But, in view of legislation enacted sub-quent to the decisions just cited, we are of opinion that the legal fiction upon which the doctrine was based is now outmoded, and that the wife has been effectually relieved of such disabilities, as the statute now in existence (Art. 4614) confers upon the wife the power of sole management, control and disposition of her property, both real and personal. So, it would seem that, there exists no reason whatever for the further entertainment of the legal fiction as a part of our jurisprudence, nor do we think a logical reason can be found for denying the surviving wife the right to exercise the same powers after a second marriage as she was permitted to exercise before.

However, we do not deem it necessary to decide the point or to predicate our action on that theory, but affirm the judgment below on the idea that the widow of Mr. McDonnell was vested with full title to the land on payment of the purchase money due therefor with her separate means, consequently, her conveyance to Mr. Miller, joined pro forma by her second husband, passed title to the property. Judgment of the court below is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: BROWN, Justice.

license: Public Domain

text:
    TAUBERT et al. v. EARLE.
    No. 13963.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 13, 1939.
    Rehearing Denied Nov. 10, 1939.
    Slay & Simon, of Fort Worth, for appellants.
    Alexander & Bird and Massingill, Be-lew, Hill & Paddock, all of Fort Worth, for appellee.
   BROWN, Justice.

This is a suit for damages which arose over the failure of appellants to comply with a drilling contract covering a small tract of land near the Bryson Townsite pool, in Jack County, Texas.

It must be conceded that the territory is what is known as a semi-proven area.

Appellee pleaded every conceivable measure of damages, to-wit, the cost of drilling a well, the value of his oil payment, provided for in the drilling contract, and the loss of his portion of the probable production, had the well been- drilled.

Since our Supreme Court has spoken in Fain-McGaha Oil Corporation v. Owens, 132 Tex. 109, 121 S.W.2d 982, and cited with express approval the opinion in Guardian Trust Company v. Brothers, Tex.Civ.App., 59 S.W.2d 343, 346, writ refused, we take it that the last mentioned measure of damages is all that may be considered here.

In the “Brothers” case, the following was said: “In the opinion in the former case [Texas Pacific Coal & Oil Co. v. Barker, 117 Tex. 418, 6 S.W.(2d) 1031, 60 A.L.R. 936], after quoting from many decisions holding that the best evidence of which the subject will admit is reasonable, and that expert witnesses acquainted with the field could testify with reasonable accuracy as to the loss in oil and gas production suffered by the lessor by the lessee’s failure to perform his contract, the rule for measuring the damages is announced in this plain language: ‘The amount and value of oil or gas production, obtained or obtainable through reasonable diligence, must be definitely alleged, and must be proven with reasonable certainty before damages may be allowed for breach of an express or implied covenant to continue the production of oil or gas, whether such damages result from failure to produce oil or gas or from loss of same by drainage.' ”

We do not believe that the evidence relied upon by appellee (plaintiff below) is sufficient to meet the rule so laid down.

The instrument which forms the basis for the suit by Earle is:

“May 31st, 1937.
“Mr. and Mrs. E. S. Earle
“Fort Worth, Texas.
“Dear Sir and Madam:
“With reference to the Mrs. D. A. Nichols 4-acre tract of land northwest of the townsite of Bryson in Jack County, Texas, upon which either or both'of you own an oil and gas lease, beg to advise you that, for a valuable consideratian already received by us, we agree as follows: ’
“That after sixty (60) days from the date hereof, at your demand, we will drill a well at our sole cost and expense, on the west 2½ acres of the 4-acre tract to the Bryson sand, using reasonable diligence and dispatch, unless said 2½ acre tract of land has been condemned within said sixty day period by an offset well; and by the word ‘condemned’ is meant that an offset well has been drilled within said sixty day period which is not capable of producing as much as thirty (30) barrels of oil per day for ten consecutive days after it has been completed. It being understood, however, that if no such offset well has been completed within said sixty day period, that then and in that event after said sixty day period, we will, on your demand, drill such well on said 2½ acre tract irrespective of the completion of any offset well. It is understood, however, of course that prior to the time that we are required to drill said well that you will assign your oil and gas lease on said 2½ acres to us; but in said assignment to us it is further agreed that you are to reserve an oil payment of $6000.00, payable as follows:
“Out of ¼⅛ of %ths of the production, as long as the well flows naturally. If, as, and' when the well ceases to flow naturally before the $6000.00 has been received by you, then your oil payment shall be out of %6ths of %ths of the production for a period of one (1) year after the date the well has ceased to flow naturally; and then out of ⅛⅛ of %ths of the production until you have received the full sum of $6000.00 in the manner and from the sources above mentioned. It being specifically understood that if. in the event the well does not flow naturally upon completion and it is necessary to place same on pump at the time of completion, the oil payment is to be cut of %6ths of %ths for a period of one (1) year from completion, and then out of ⅛⅛ of %ths until the full sum of $6000.00 has been received by you.
“It is understood too, that said payment of $6000.00 shall be in the nature of an overriding royalty and there shall be no personal obligation on the part of us to pay you said $6000.00, and no obligation on your part to pay any of the expenses whatsoever in producing said oil.
“It is further understood that we are to have an option on the balance of said 4-acre tract, which option must be exercised by us within sixty (60) days from the completion of the well above provided for.
“Our contract as to the balance of said 4-acre tract shall be on the same terms and conditions as on the 2½ acre tract, with the exception that the oil payment shall be $5000.00 instead of $6000.00, and with the further exception that as to the balance of said tract we will commence drilling said well immediately, upon demand by you, after said option is exercised.
“Very truly yours,
“Taubert & McKee
“By: (Signed) Jesse McKee
“(Signed) Ed Taubert
“Accepted this 2 day of June, 1937.
“(Signed) E. S. Earle.”

The oil and gas lease which was to be assigned is in ordinary form. It does not specify any depth to which the well must be drilled, and the following clauses appear therein: “It is agreed that this lease shall remain in force for a term of one year from this date, and as long thereafter as oil or gas or either of them is produced from said land by lessee.” “In addition to the cash bonus paid, Lessors, or their order, are to be paid $250.00 per acre in oil out of of %ths of the oil produced from said 4 acres, if, as and when produced.”

The lease is dated January 6th, 1937.

It appears that a well was drilled on the above mentioned 4-acre tract in October, 1928, known as the “Shaw well”, and that it was abandoned shortly after it was completed, on the southeast portion of the said tract.

At the risk of being tedious, we think it best to give the substance of the testimony of some of the witnesses who were produced by appellee for the purpose of giving the jury some facts about the “Shaw well” and those on tracts lying in different directions from the 4 acre tract involved in this suit.

Mrs. D. A. Nichols, who executed the lease and who lives on the land, said that she saw the “Shaw well” flow when it came in, but when asked, “How long was it then before they plugged and quit the well?” she said: “I don’t know how many days, but just a few.” She further testified that she did not know whether they got one barrel of oil out of the well, or 100 barrels ; that she never received any payment for royalty, “but the man said we should. He said there were 80 barrels of oil in the pipe line.” She testified that “they” told her “they had a good well”.

This witness gave no direct testimony concerning wells, near or adjacent to the 4 acre tract.

The next witness was W. F. Manley, a son-in-law of Mrs. D. A. Nichols, who testified concerning the “Shaw well”: “Q. Just tell the jury what you saw at the time with reference to seeing oil come out of the well. A. I helped pull the casing out of the well. When we pulled the casing the well flowed and the well was flowing when they stopped it up and condemned it; that is about all I know about it.” He said further, that it was flowing when they pulled the casing out and it was flowing when they plugged it; that when it “came in” it flowed half way up the derrick for three or four minutes and then shut down, and “that it gradually quit flowing in time.”

This witness did not know how “thick” the oil-bearing sand was.

When asked about nearby wells, we find the following:

“Q. Do you know anything about these recent wells * * * I mean by that, within the last two years, one to the west and one to the east of this four acre tract? A. No, I don’t know much about them.
“Q. Did you work on them? A. No.
“Q. You don’t know whether they are dry or not? A. No.”

This witness said he had been in the oil fields for some time; that he is 33 years old, and had seen many oil wells brought in.

On this predicate, outlined above, he was asked if he had formed an opinion about the production of the “Shaw well”, and having replied in the affirmative, and when asked to give his opinion, said '50 or 75 barrels per day.

Before being permitted to so testify, his qualification as such expert witness was challenged and the court, after retiring the jury, ascertained the following facts: That the witness had never studied geology, but said he “knew something about wells”, and that the well would have made 50 barrels “if it had been taken care of”; he said he did not know how “thick” the sand was, but said it was a foot and six or seven inches “thick”, at least, although he did not see it. He further told the court that in his opinion the “Shaw well” might have been good for 20 years, “maybe, and maybe not 30 days”, tie further testified that there were, at the time he gave his testimony, wells “on the townsite” under pump, and he did not know what they were producing'; he “hadn’t been- down there to see them.”

When the trial court overruled the objection to this layman’s testimony and the jury was brought back, he was asked: “Do you know the wells in the townsite in this Nichols tract of land and how long they had been producing?” And he answered: “Yes, I know about them”, and then this question was propounded: “Q. From your knowledge of the wells and the field there and from your general knowledge of the lease and of the oil business, how long, in your opinion, would a well on this D. A. Nichols tract produce oil?” Objection was duly made to the question, same was overruled, and this further question asked: “How long do you think a well there would have produced oil if it were properly brought in?” and he answered: “According to other wells around close to it it would have produced 8 or 10 years; they are doing it now.”

On cross-examination this witness said he was not a geologist; that 10 feet of sand would “make a well”, but that neither one foot nor two feet of sand would “make a well”. Counsel then proceeded to test this witness’ knowledge of the “surrounding wells” and showing the witness a map, the witness said the nearest well to the- 4 acres tract is the Tidwell-Chambers well, 1701 feet away. He was asked: “How much oil has that Chambers well made?” He answered: “I don’t know.” And he did not know whether it was then shut down. He was next questioned about the Tau-bert & McKee well which is south of the 4-:acre tract. He said he did not know about its production or whether or not it is now producing or ever did produce oil. Being asked about the K. Bryson well, “How much did that well produce ?” he answered, “I don’t know. I am working and don’t go .around seeing about those wells.” He was just as indefinite about the Target Drilling Company’s Williams well on the Nichols tract. He did not know anything about its production and “had not been .about it.” He finally said he was not talking about the wells inquired about, he was “talking about the wells north of town.” This witness was then asked: “How far is that pool up north that produced ten years ?” And he answered: “About a mile and a half from the Harper lease, and on the Prairie lease there are some- wells that ■have produced not over half a mile, they produced 6 or 7 years and they were

closed down.” This witness told the court that, “Oil runs like water in streams and not. in lakes.” He said his opinion of the “Shaw well” was based on the wells on the Prairie lease north of town and on the L. C. Harper well.

We fail to find where this lay witness has testified to any fact concerning either the “Shaw well” (which was on the 4 acres in controversy) or concerning any other well in the neighborhood that could possibly give the jury any definite or approximately correct data from which the jury could ascertain what a well drilled on the 4 acre tract would in all probability have produced.

The remaining plaintiff’s witnesses, J. W. Cullers, J. M. Box, C. L. Jones, W. L. McCloud, C. C. Chambers, L. H. Roberts, J. W. Kinder and plaintiff, E. S. Earle, all gave testimony quite as indefinite as that outlined by us as coming from the witness Manley.

When this instrument, on which appel-lee relies, was written the makers must have known something of the conditions in that particular area. This oil payment of $6,000 which was to be paid to appel-lee, after the original lessors were paid $1,000 out of oil produced and sold, provides that the payment shall be made out of ¾⅛ of %ths of the production, as long as the well flows naturally. And if the well ceases to flow naturally before the $6,000 is paid appellee, then his payments should come out of %6ths of %ths of the production for one year after the well ceases to flow naturally, and then out of ⅛⅛. of %ths of the production until the entire sum of $6,000 is paid. The agreement then further provides that if the well does not flow naturally when completed and it is necessary to place same on a pump, the oil payment is to be out of %eths of %ths for a period of one year and thereafter out of ⅛⅛ of %ths until the entire sum is paid.

Proof even from plaintiff’s witnesses shows that the wells in the vicinity of the 4 acres tract are short-lived.

While the language we quoted from, in the leading cases,. speaks of “expert witnesses acquainted with the field”, we do not believe that is the sole manner in which satisfactory proof could be made.

What we mean to say is that we believe proof may be made by lay witnesses —non-experts—provided they can and do testify to facts.

Let us illustrate our meaning. If witnesses are produced who testify to whether or not the wells surrounding, adjacent or mear to the tract in question, flowed when -completed, how long they flowed and how much they produced, from their completion until they ceased to flow, and how much they produced on the pump; or whether -or not such wells did not flow, hut were put on the pump and how much they produced, .after completion, 'and how long they actually produced, and the amount of production, such testimony, together with proof of the location of the tract in question, could be said to raise an issue of fact for the jury to say what production could be reasonably expected from the tract in question.

But this was not done. We have -carefully read all of the plaintiff’s testimony and we do not believe that it is sufficient for a jury to adopt as a basis on which to return a fair verdict. We find no testimony that tends to establish the essential facts “with reasonable certainty.”

In our opinion, no lay witness testified to facts, or laid any sufficient predicate whereby such witness showed himself qualified to give hi. opinion as to what a well -on the 4-acre tract would produce, or how long it would produce.

In contrast to the plaintiff’s situation, the defendants — appellants here — introduced witnesses familiar with the wells in that neighborhood whose testimony tended to show that, by comparison, the 4 acres in controversy, in all likelihood, would not yield an oil well producing oil in paying quantities, and they also produced a trained petroleum engineer who testified that he was familiar with the logs of the wells in that vicinity — the very wells on whose existence the plaintiff depends for evidence to support a recovery of damages — and who has made a survey of the territory, and this expert said in his opinion the Nichols tract would not make a commercial producer.

We have “put the cart before the horse” in this opinion, but we want to put what we believe to be the controlling issue out -in front.

This cause was tried to a jury and nine : special issues submitted.

To the first issue the jury found that appellants agreed to drill the well on the 2½ acres out of the 4-acre Nichols tract as a part of the consideration to be paid to appellee for the assignment to appellants of a certain lease on a 43-acre tract owned by one Box; to the second issue the jury found that the 2½ acre tract was not condemned within the 60 day period by any offset well which was not capable of producing 30 barrels of oil continuously for 10 days; to the 3rd issue the jury found that had appellants drilled a well on the 2½ acre tract, the lease on the remaining l%-acre tract would have been worth $264 per acre; to the 4th issue the jury found that the reasonable cash market' value of the $6,000 oil payment retained by appellee, would have been worth $2,834, if appellants had drilled the well contracted for; to the Sth issue the jury found that the oil and gas lease on the said 1½ acres remaining in the 4-acre tract, when appellants refused to drill the well, was worth $236; to the 6th issue the jury found that the cash market value per acre of the lease in question, at the time appellee demanded that appellants drill the well, was $210 per acre; to the 7th issue the jury found that had appellants drilled the well appellee would have received the sum of $2,834 out of the $6,000 oil payment; ■ to the 8th issue the jury found that an oil well producing oil in paying quantities would have been discovered if appellants had drilled the well to the Bryson sand; issue No. 9 and the answer are as follows: “Find from a preponderance of the evidence what amount of money, if any, if paid now, will reasonably compensate the plaintiff, E. S. Earle, for the failure on the part of the defendants, Taubert and McKee, to drill the well to the Bryson sand on the west 2⅛ acres of the 4 acre tract in question?” Answer: “$3,230.00.”

Appellee having pleaded that the contract on which this suit is brought was a part of the same transaction involving the .above mentioned 43-acre tract, and that the contract to drill was a part of the consideration for the contract covering the 43-acre tract, appellee prayed that a lien be established against appellants’ interest in said 43-acre tract and that same be foreclosed to satisfy such judgment for damages as he may obtain.

On the verdict and pleadings the trial court rendered judgment jointly and severally against Ed Taubert and Jesse Me-Kee for the sum of $2,834, decreed a lien on the said 43-acre tract and foreclosed same.

Taubert and McKee have appealed, and the brief contains forty-five assignments of error, but appellants have presented their points through thirteen propositions.

This opinion is’ rather lengthy up to this point and, in the interest of brevity, we will not attempt to discuss each point.

The first point raised contends that the defendants overwhelmed the court with material and expert testimony of persons who were acquainted with the -field, showing that a commercial producer could not be drilled on the land in question, and the plaintiff failed to introduce evidence of probative Value in his behalf; therefore the trial court erred in not granting defendants’ request for a peremptory instruction.

While we are inclined to the opinion that the trial court should have given such charge, nevertheless, on this appeal, where it appears that the plaintiff did not fully develop his case, we would be inclined to reverse and remand rather than reverse and render, were there no other assignments of error warranting a rendition.

The second proposition attacks the action of the trial court in permitting the witness, Manley, who is a mere oil field “roustabout” and “tool dresser”, to give his opinion on whether or not a well drilled on the tract in question would be a producer, how much it would produce and for what duration.

We conclude that this point is well taken.

The third proposition contends that the letter, or instrument, on which- the plaintiff relies for a recovery, shows to, have been executed for a past consideration and is therefore not enforceable.

We do not think the point well taken.

It is always permissible to prove the true consideration, in a case such as this, and we believe that the testimony establishes the fact that the contract on which this suit is broúght is a part of the contract involving the 43 acre tract mentioned above.

The fourth proposition is an important and serious one. It contends that the letter, or instrument, is not enforceable because it is in violation of Article 3995 (Rev.Civil Statutes of Texas, 1925), namely, the Statute of Frauds.

The first case cited to support this point is Cantrell v. Garrard; 240 S.W. 533, by the Commission of Appeals, adopted by the Supreme Court, and followed by the cases of Anders v. Johnson, 276 S.W. 678, and Fagg v. Texas Co., 57 S.W.2d 87, both by the Commission of Appeals. We find the following language used by the Commissioners in the “Cantrell” case [240 S.W. 534] : “A contract for the sale or conveyance of the lease under consideration was réquired by our statutes to be in writing. R.S. Arts. 1103 and 3965. The lease itself constituted the subject-matter of the contract. The land upon which the lease was given was one of the essential elements of description, but not by any means the only one. The term for which the lease was to run, the time for beginning drilling operations, the time and amount of payments in lieu of drilling operations, and the amount to be paid for gas produced, were also essential elements of description. * * * The description of said lease, the subject-matter of the contract sued on, was insufficient to identify the same, and therefore insufficient to meet the requirements of the statutes cited, and defendant in error was not entitled to recover for the breach of such contract.”

In this opinion by the Commissioners, the following language is quoted from Jones v. Carver, 59 Tex. 293: “The rule is that a written agreement for the sale of land must contain the essential terms of a contract, expressed with such certainty that it may be understood without recourse to parol evidence to show the intention of the parties; and no part of such contract is more essential than that which identifies the subject-matter of the agreement.”

What is the subject matter of the agreement, on which the plaintiff below relies? Obviously an oil and gas lease which the plaintiff desired, to convey to the defendants below for some certain consideration.

An examination of the contract, sought to be enforced by appellee, discloses that the following words, only, are used to describe the “subject matter” of such contract: “With reference to the Mrs. D. A. Nichols 4-acre tract of land northwest of the townsite of Bryson in Jack County, Texas, upon which either or both of you own an oil and gas lease, beg to advise you that, for a valuable consideration already received by us, we agree as follows

There is not found in this instrument any further description of the lease, and no reference is attempted to be made to any lease executed and filed for record. The lessors are not attempted to be named, nor is the lessee. The date is not attempted to be given, neither is the term for which it is to run, nor the time for beginning drilling operations, nor the payments which are provided for therein.

We do not believe that the contention of appellee to the effect that the instrument sued upon is not one for the sale of an oil and gas lease, but is a contract to drill a well, is sound.

You cannot divorce the agreement to drill a well, under and by virtue of the terms of the lease which confers the right to so drill, from the lease itself. The instrument sued upon shows on its face that appellants were to drill a well and to make certain payments, out of oil produced, for a sale and conveyance to them of the said oil lease.

Under the decisions noted, we hold that the letter, or contract, is wholly unenforceable, and that the appellee cannot recover in a suit predicated thereupon.

A discussion of the remaining nine propositions is pretermitted by us, because of the conclusions reached.

For the reasons stated, the judgment of the trial court is reversed and judgment here rendered for appellants.


author: COMBS, Justice.

text:
    SOUTHERN UNDERWRITERS v. LLOYDS AMERICA et al.
    No. 3536.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 3, 1939.
    Rehearing Denied Nov. 15, 1939.
    Battaile & Burr, of Houston, for plaintiff in error.
    Sewell, Taylor, Morris & Garwood, of Houston, Mueller & Mueller, of Seguin, and T. F. Green, Jr., and Pitts & Liles, all of Conroe, for defendants in error.
   COMBS, Justice.

On July 8, 1936, while engaged in pulling pipe and reworking an oil well in the Conroe oil field, Ovid M. Thompson was killed as the result of the collapsing of the derrick being used in the reworking operation. The only matter at issue in this law suit is which of two compensation insurance companies is liable. The oil well being reworked belonged to Feltex Oil Corporation, for which appellee Lloyds America was the compensation insurance carrier. The well was being reworked by C. E. Starrett Oil Producing Company, for which appellant, Southern Underwriters, was the compensation insurance carrier. That Thompson was killed in the course of his employment; that his widow and minor child, appellees herein, are entitled to compensation insurance payments at the maximum rate all appear without dispute. But both insurance companies denied liability, each contending that Thompson was the employee of the other employer. And upon that contention hangs the tale of more than three years delay (up to now) in payment of the compensation insurance which is unquestionably due by one ór the other of • the insurance carriers to the widow and minor child of 'the deceased. So far as necessary to be stated, the pertinent facts bearing upon the issue involved are: The Feltex Oil Corporation, which we will hereafter refer to as Feltex Company, owned and operated a number of producing oil wells in the Conroe oil, field. C. E. Starrett Oil Producing- Company, which we will refer to as the Starrett Company, was engaged in the business of reworking oil wells. The Feltex Company contracted with the Starrett Company to rework the well in question. The contract was oral and there is some question as to whether the contract was to the effect that the provisions of a prior written contract between the Starrett Company and the Motex Oil Company would govern. But we do not think that question material. In any case the controlling features of the agreement were established without dispute to be as stated by the witness, C. E. Starrett, as follows:

“Q. Tell the jury what your agreement was, what you agreed with Feltex to do? A. I had an agreement with Mr. Feldman and Mr. Adelson (officials of Feltex) in the presence of Mr. Condra (field superintendent for Feltex). He asked me if I had the equipment necessary to rework a well and I told him that I did, and he asked me my terms and I told him it was customary to charge $6.25 an hour for the equipment and one man, which was the driller or operator, and that if it was inconvenient for him to furnish the balance of the labor, we would furnish it and bill him for it at cost, the men’s wages plus.the insurance or whatever the carrying charges amount to, and he was to move the material to Conroe and return it to our yard in Refugio.”

Deceased, Thompson, was a driller and an expert in oil well reworking operations. He had been employed by the Starrett Company in that capacity for about two years prior to the accident. Pursuant to the contract, Starrett Company furnished its well reworking equipment, which was of a type not possessed by Feltex Company, and its expert operator for the agreed price of $6.25 per hour. Starrett Company also employed and paid the laborers or “rough-necks” who worked with Thompson, and in the final settlement Feltex paid to Starrett Company the amount which it had paid to those workers. The proof shows that the reworking of an oil well is a delicate operation, requiring special knowledge and skill, there being constant danger of a blowout and serious damage to the well. Feltex Company retained an expert consultant, R. G. Jackson, to supervise reworking operations and he and the Feltex superintendent, .Condry, maintained a close watch and supervision over the reworking operations being carried on by Thompson. C. E. Starrett testified that when he sent Thompson to the Feltex job he instructed him to do the work as directed by Mr. Jackson and Mr. Condry, and in general to “keep them satisfied.” We think it clear- that Jackson, and in his absence Condry, had the ultimate responsibility and authority of determining what operations should be undertaken, that is, it was for them to say whether the casing or screen should be pulled, whether the well should be plugged and redrilled, and if so to what depth, etc. But we think it equally clear and without dispute that neither Jackson, Condry nor any other representative of Feltex Company had control over-Thompson as to means and methods of accomplishing the work; that is to say as to how the machinery should be operated in performing the various operations. C. E. Starrett testified that the Starrett Company’s machinery was quite expensive and that he would not have entrusted the operation of it to any other person on that job except Thompson, and in that he was corroborated by Jackson, who testified:

“Q. State whether or not in the performance of the work on this job, before Mr. Thompson was killed, you did anything or did not do anything other than to tell him what was to be done? A. That is correct.
“Q. What are the facts with reference to who exercised any control, if any, over Mr. Thompson after it had been determined a certain operation would be done with reference to the manner and means of doing that particular operation? A. Mr. Thompson was not only the driller, but was Mr. Starrett’s foreman, and had control not only over the shift he worked but also over the other driller.
“Q. The question is: Who exercised control over the way the thing was done after it was determined it should be done? A. Mr. Thompson.”

The evidence shows without dispute that Thompson was a regular employee of the Starrett Company and his wages were paid by the Starrett Company for his work on the job in question, and that after his death Starrett Company employed another driller to take his place, one Nelson, to complete the job.

Another matter which we think of controlling effect was the contract between the Feltex Company and the Starrett Company with reference to compensation insurance. It appears without dispute that the Starrett Company was to carry compensation insurance on all of the men, including Thompson, which it used on the reworking operations and that Feltex Company would refund or pay to the Starrett Company the sums paid for insurance premiums. The Starrett Company reported the wages of all the said employees, including Thompson, to its insurance carrier, the appellant, Southern Underwriters, and paid to Southern Underwriters the insurance premiums, which have been retained by appellant. In the final settlement the Feltex Company paid to the Starrett Company the sums which had been paid for insurance premiums. The Feltex Company did not report the wages of said employees to its insurance carrier, appellee Lloyds America, nor did it pay to Lloyds America any insurance premiums for coverage of said workmen. These facts appear from the testimony of C. E. Starrett, president of the Starrett Company, B. A. Wales, secretary-treasurer of that company, and Floyd Karsten, secretary-treasurer of the Feltex Company, and are not disputed.

At the conclusion of the evidence the trial court instructed a verdict in favor of the widow and minor child and against appellant, Southern Underwriters, insurance carrier for the Starrett Company, and in favor of appellee Lloyds America, insurance carrier for Feltex Company.

Opinion.

Appellant contends only that it raised an issue of fact for submission to the jury that Thompson, the deceased, was the employee of Feltex Company and not the employee of Starrett Company. The assignment is overruled. Under all of the evidence, as we view it, Thompson was the employee of the Starrett Company. He was an expert in the line of work being carried on by his employer, the Starrett Company. His was the sole and final responsibility for the operation of the highly specialized and expensive machinery which Starrett Company used in its oil well reworking operations. And although the Feltex production expert, Jackson, had final authority with reference to what operations should be undertaken on the job, yet the manner of operating the machinery and accomplishing the ends sought rested solely with Thompson. ITe was therefore the employee of the Starrett Company. This holding is in accord with the holding of the Texarkana Court of Civil Appeals in the recent case of Dennis v. Texas Employers’ Insurance Ass’n, 116 S.W.2d 492, a case which is strikingly similar on the facts to the case before us. On this point see also Tanner v. Drake, Tex.Civ.App., 47 S.W.2d 452; Id., Supreme Court, 124 Tex. 395, 78 S.W.2d 162, 163; Stewart v. Cal. Imp. Co., 131 Cal. 125, 63 P. 177, 52 L.R.A. 205.

We think the instructed verdict was correct for another reason. It appears without dispute that the agreement between the Starrett Company and the Feltex Company was that Starrett would carry the compensation insurance on all of the men used by Starrett Company in the reworking operations in question. The Starrett Company did carry the compensation insurance with the appellant on all of those men. Appellant’s policy, therefore, covered all of the employees engaged in that work, the very work in which Thompson received his death injury. It is clear that the Feltex Company either did not regard Thompson and his fellow workers as its employees, or if it so regarded them it considered them in a different category from its regular employees, and so contracted with Starrett Company to carry the compensation insurance. Such being the case we think the question of whose employee Thompson was is not of controlling importance. If he was the employee of Feltex Company he was covered by appellant’s policy because in that event the insurance was carried by. Starrett Company for the benefit of Feltex Company. Lindsey v. T. & N. O. R. R. Co., Tex.Civ.App., 87 S.W.2d 864. On the other hand, if Thompson be regarded as the employee of Starrett Company, he was certainly covered by the insurance which Starrett Company carried for him and the other employees; a proposition which appellant does not question. In short, it is our view that appellant’s policy covered Thompson because its policy insured him on the very job and in the very work in which he received his death injury, irrespective of whether he was the employee of Starrett or Feltex. Appellant collected, and has retained, the insurance premiums. We think it is justly indebted to Thompson’s widow and minor child for the insurance to which they are entitled. It ought to pay them.

Judgment affirmed..


author: SLATTON, Justice.

text:
    DRUMMOND et al. v. BENSON et al.
    No. 10519.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 4, 1939.
    Rehearing Denied Nov. 15, 1939.

      Swearingen & Miller and John J. Cox, all of San Antonio, Perkins & Floyd, of Alice, and Spafford & Spafford, of Dallas, for appellants.
    John T. Spann, of Crystal City, and D. A. McAskill, Ball, Seeligson & Trueheart, and Morriss & Morriss, all of San Antonio, for appellees.
   SLATTON, Justice.

Amy Benson, as next friend of her minor child, joined by her four other children and her deceased husband’s four brothers, brought this suit against James Newton Drummond, et al., to recover certain lands situated in Duval County, Texas. Drummond and his coparties moved to amend the judgment rendered by the District Court of Duval County in the year 1928. After notice and hearing the court entered the amendment “nunc pro tunc.” Amy Benson and her coparties attacked the judgment as amended. The ground of attack of Amy Benson and her children against the amended judgment was that they did not authorize the institution and prosecution of the suit in which the amended judgment was rendered.

The theories of recovery were upon an alleged common law marriage between C. O. Drummond and Mary Benson, and that the Benson boys were the sole heirs of said C. O. Drummond and Mary Benson, both deceased, and a parol trust under which C. O. Drummond held title for the Bensons. The trial court directed a verdict against four of the Bensons; viz., Zachariah, Otto, Alvin and Joseph. Evidently upon the ground that the amended judgment was a bar to a recovery in their behalf.

The cause between the remaining parties was submitted to the jury in the form of special issues. The jury found the following :

Amy Benson did not authorize anyone to enter her appearance as an individual in suit No. 3178, styled Amye Benson et al. vs. E. H. Drummond et al., in the District Court of Duval County, Texas.

Amy Benson did not authorize anyone to enter her appearance as next friend of the minor children, Charles O. Benson, T. W. Benson. Idabel Evans (nee Benson) and Elizabeth Broxton (nee Benson) in suit No. 3178, styled Amye Benson et al. vs. E. H. Drummond et al., in the District Court of Duval County, Texas.

Amy Benson did not have notice of the filing of Cause No. 3178 at the time thereof or within six months after Tune 18, 1928.

Nell Benson Baker is the daughter of Tom Benson, deceased, and Amy Benson.

After the death of Katherine Tennessee Drummond, C. O. Drummond and Mary Benson entered into a mutual agreement to live together as husband and wife.

Pursuant to such agreement C. O. Drummond and Mary Benson thereafter lived and cohabited together as husband and wife.

Pursuant to such agreement C. O. Drum-mond and Mary Benson held each other out thereafter to the public generally as husband and wife.

Part of the money with which C. O. Drummond acquired land belonged to Tom Benson.

All of the land involved in this case was so acquired by C. O. Drummond.

One-third of the land involved in this case was acquired with money belonging to Tom Benson.

Part of the money with which C. O. Drummond acquired land belonged to Mary E. Benson.

All the land involved in this case was so acquired by C. O. Drummond.

One-third of the land involved in this case was acquired with money belonging to Mary E. Benson.

C. O. Drummond agreed with Mary E. (Betty) Benson, Tom Benson, Zachariah Benson, Otto Benson, Alvin Benson and/or Joseph Benson, or either of them, that the said Mary E. Benson and her sons should labor and furnish money to be turned over to and used by C. O. Drummond in the purchase of land in his name and held by him during his natural life for the benefit of Mary E. Benson and her sons.

Mary E. Benson and her sons complied with their part of said agreement.

All the land involved in this case was acquired by C. O. Drummond in pursuance of said agreement.

The defendants H. H. Henderson, W. W. Harvey, Reliance Oil & Royalty Corporation, Foster Petroleum Corporation, Foster Minerals Corporation, The Alamo National Bank of San Antonio, Texas, Sid Katz, A. H. Richardson, J. H. Reynolds and Mrs. J. H. Reynolds, or either of them, at the time of their, or either of their purchase of their respective oil and gas leases and oil and gas royalties in the land in controversy, had notice of the existence of such agreement.

All of the defendants involved in this case had such notice.

Defendants H. H. Henderson, W. W. Harvey, Reliance Oil & Royalty Corporation, Foster Petroleum Corporation, Foster Minerals Corporation, The Alamo National Bank of San Antonio, Texas, Sid Katz, A. H. Richardson, J. H. Reynolds and Mrs. J. H. Reynolds, or either of them, at the time of their, or either of their purchase of their respective oil and gas leases and oil and gas royalties in the land in controversy had notice that such lands had been bought by. C. O. Drum-mond with money earned by Tom Benson.

All the defendants involved in this case had such notice.

The defendants H. H. Henderson, W. W. Harvey, Reliance Oil & Royalty Corporation, Foster Petroleum Corporation, Foster Minerals Corporation, The Alamo National Bank of San Antonio, Texas, Sid Katz, A. H. Richardson, J. H. Reynolds and Mrs. J. H. Reynolds, or either of them, at, the time of their, or either of their purchase of their respective oil and gas leases and oil and gas royalties in the land in controversy had notice that such lands had been bought by C. O. Drummond with money belonging to Mary E. Benson.-

All the defendants involved in this case had such notice.

The defendants H. H. Henderson, W. W. Harvey, Reliance Oil & Royalty Corporation, Foster Petroleum Corporation, Foster Minerals Corporation, The Alamo National Bank of San Antonio, Texas, Sid Katz, A. H. Richardson, J. H. Reynolds and Mrs. J. H. Reynolds, or either of them, at the time of their, or either of their purchase of their respective oil and gas leases and oil and gas royalties in the land in controversy had notice that Amy Benson did not authorize any one to en' ter her appearance as an individual in said suit No. 3178.

All the defendants involved in this case had such notice.

The defendants H. H. Henderson,' W. W. Harvey, Reliance Oil & Royalty Corporation, Foster Petroleum Corporation, Foster Minerals Corporation, The Alamo National Bank of San Antonio, Texas, Sid Katz, A. H. Richardson, J. H. Reynolds and Mrs. J. H. Reynolds, or either of them, at the time of their, or either of their purchase of their respective oil and gas leases and oil and gas royalties in the land in controversy had notice that Amy Benson did not authorize anyone to enter her appearance as next friend of the minor children Charles O. Benson, T. W. Benson, Idabel Evans (nee Benson) and Elizabeth Broxton (nee Benson) in suit No. 3178. ’

All the defendants involved in this case had such notice.

The defendants H. H. Henderson, W. W. Harvey, Reliance Oil Corporation, and the Alamo National Bank at the time they erected the improvements upon the land in controversy and drilled the wells thereon and equipped the property for oil production and in producing oil therefrom did so in good faith under an honest and reasonable belief that their title to the mineral leasehold estate in said land was superior to the claim of title, if any, made by the plaintiffs.

The trial court rendered judgment in favor of Amy Benson and her children for the title to an undivided one-fifth interest in and to the land in suit and for the value of one-fifth of the oil produced in excess of the cost of production.

The aggrieved parties have appealed.

The appellants contend that the evidence does not show a common law mar riage between C. O. Drummond and Mary Benson. That the parol trust alleged is illegal and unenforceable, in that it is contrary to public policy.

Our discussion will be limited to the contentions stated, because we consider them controlling on this appeal.

C. O. Drummond, the common source of title, was born January 11, 1840. He married Katherine Tennessee Drummond October 9, 1873. The family moved to the Loma Alta community, along the line between Duval and McMullen Counties, in the year 1887. The Drummonds moved to the community in a farm wagon and brought with them a milk cow and some goats. Mary Benson, a niece of Mrs. Drummond, and her four boys accompanied the Drummonds to the community and lived with them for about one year. Thereafter they moved to a farm north of San Diego which was rented for about two years. Thereafter C. O. Drummond bought a 240 acre tract of land, about ten miles north of San Diego, and he and his wife and Mary Benson and her boys moved and lived together for three or four years, in a small frame house, until about 1894 or 1895. About that time Mary Benson and her four sons, whose ages were then 18, 15, 12 and 7 years, moved away from C. O. Drummond and his wife and leased a part of the public land in the Loma Alta Community, on which they built a frame house and dug two wells.

In 1898 or 1899 Mary Benson and her four boys took another lease from the State of Texas and moved upon the land, after which time C. O. Drummond and wife moved on the place that Mary and her boys had previously occupied.

While Mary Benson and her boys were living on the last lease another son was born to her. In 1903 and 1904 Tom Benson, Zachariah Benson and Otto Benson made the down payment and obligated themselves for the remainder of the purchase price to the State, as settlers, on the land where Mary Benson and her five boys lived.

In 1906 Tom Benson, the oldest son of Mary Benson, married Amy Benson and took her to live with his mother and four brothers. In 1908 Mary Benson and her five sons and daughter-in-law, Amy, and her grandson, Tom, Jr., moved from the Duval County land, which they sold, to the town of Crystal City, Texas. Mary Benson died at Crystal City in 1919.

After Mary Benson and her family moved from Duval County to Crystal City, and until Mrs. Katherine Drummond’s death, in April or May, 1916, C. O. Drummond and his wife, Katherine, lived .on a part of the land in suit. During such time C. O. Drummond would drive horses from his ranch home in Duval County to Crystal City, in Zavalla County, where he would sell the horses and return to his ranch in Duval County. While at Crystal City he stayed with Mary Benson and her boys.

Tom Benson went to work as a section hand on a railroad and moved his wife and Tom, Jr., from Crystal City, but Mary Benson remained in Crystal City with her four other boys. They lived on a lot with two houses, a two-room house in front and a one-room house behind. Tn the front house there was a bed room and kitchen. Mary lived in the front house and the sons lived in the back house. There were two beds in the house in the rear, but only one bed in the front house. During the period of time from the removal of Mary Benson to Crystal City to the death of Mrs. Katherine Drummond (some eight years) C. O. Drummond went to Crystal City to sell his horses and evidently slept with Mary in the one bed in the front house. Mrs. Katherine Drummond died in Duval County in the spring of 1916, and at the request of C. O. Drummond was buried in the yard behind the house. At the time of her death C. O. Drummond was seventy-six years of age and continued to live at the ranch and cook for himself for some time. After the death of Mrs. Katherine Drummond, and before the death of C. O. Drummqnd, December 3, 1918, a period of some thirty months, C. O. Drummond went to Crystal City two, or possibly more, times. Some of the witnesses stated that during the year 1916 and 1917, C. O. Drummond was seen at Mary Benson’s home “off and on”, “part of the time.” One of the witnesses said C. O. Drummond spent as much time in Crystal City as he did in Duval County. Another witness testified that he did not know how long Drummond stayed with the Bensons at' Crystal City, but that he never stayed very long at a time; maybe two months, three months, four months at a time. That Drummond made trips there for two or three years. The appellees introduced a letter, dated November 2nd, 1918, from C. O. Drummond to Zach Benson, in which it is said: “I got home the 22nd day of Oct. from San Antonio (evidently meaning the ranch home). * * * The doctor in San Antonio told me to go to the coast and stay there. * * * So I concluded I would settle in San Diego and live and die here. I have rented me a house and my things will be here from the ranch tomorrow. I know all these people and they all know me, and if I get down or sick I can get medical attention and the people will help me. I am só glad I left Sanderson when I did, for if I had stayed there longer I would have taken the grippe and died there, for I could not lie down when I left there, choking all the time.”

Evidently some time between August and October, 1918, the Bensons and C. O. Drummond left Crystal City for Sander-son, where some of the Benson boys worked as section hands on the railroad and where Tom Benson and his family had previously moved.

C. O. Drummond died December 3, 1918, in the house referred to in his letter. On his death bed he asked that the Bensons be notified and requested to come to him. He directed that his body be buried beside that of his wife. The Bensons did not attend the funeral. The • Bensons did not go to San Diego during the last illness of C. O. Drummond.

Mary Benson died in Crystal City November 13, 1919, of cancer, from which she was bedridden long before her death. During the times C. O. Drummond was in Crystal City he was introduced' by Mary Benson and her sons as the uncle of the Bensons. The Benson boys and appellee Amy Benson addressed C. O. Drummond as “uncle”. Amy Benson testified that the reason her husband and his brothers called C. O. Drummond “Uncle” was “to conceal the fact that he was their father.” Mary Benson was known in the community of' Crystal City as Mrs. Benson and as widow Benson. The neighbors in Crystal City never knew C. O. Drummond to introduce Mary Benson as his wife, and never heard that she was his wife, nor that they were living together as man and wife. The Meath certificate of Mary Benson contained the name Mary Benson.

One witness testified that he heard C. O. Drummond speak of Mary Benson as his wife. The witness explained that when he was a bare-foot boy riding a bicycle he heard C. O. Drummond say that “they could go ahead and sell those cows and he would buy his wife a cow.” “That is the only time I heard him mention it.” He further testified that he heard this remark between the fall of 1915 and the latter part of 1917. He thought it was in 1916, but he did not know whether it was the first part or last part, and that he did not know what wife C. O. Drummond was talking about. The witness was interested in the outcome of the suit.

Another witness testified, over objection, the following: “Well one1 day I was over there and I just asked Mrs. Benson, I says ‘who is Uncle Drum anyway?’ They called him Uncle Drum. She told me she said ‘that is my husband. That is Pinkey’s father and the other boys’ father.’ ” On cross-examination it appears that the witness at the time of the conversation was nine years of age.

Another witness testified as follows:

“Q. All right Mr. Blankenship, just state about an agreement that Mrs. Benson told you that she and Mr. Drummond had if she told you about an agreement — I will ask you if she said they had an agreement ? A. Yes, sir.
“Q. Now, then, what was that agreement according to what she said to you? A. Well, she told me that after Aunt Tenn- — -she always called Mrs. Drummond Aunt Tenn, — died * * * she told nie that Mr. Drummond came-to Crystal City after Mrs. C. O. Drummond was buried and that they renewed their relation as man and wife and lived together, and that Mr. Drummond was going back to make disposition of the' property here and come back and live with her and the boys.
"Q. Renewed their relation as man and wife? A. Yes, sir.
“Q. She said he was coming back for what purpose — I didn’t get that ? A. Dispose of what few stock he had on his ranch here and to lease his ranch out prior to going back to Crystal City to make his home with her and the boys. * * * And he (Drummond) told me he had disposed of his stock and was going to lease his ranch out and go back and live with Bet and the boys.”

Another witness testified that he saw C. O. Drummond in Del Rio in 1918 and that Drummond told him that he had closed out the business down at San Diego and practically had disposed of all the livestock and he was then making arrangements to move —he called Mrs. Benson Betty — “I am going to move Betty and the boys out here to Sanderson.” “He referred to them as his family, as he always had with me and I don’t think I ever met the old gentleman after that.” At the third appearance on the witness stand he testified to the same conversation, and stated that Drummond “mentioned his family to me in that conversation and said that he made arrangements to move his wife Betty and his boys out there, and I never saw the old man alive afterwards.” On cross-examination the witness stated that he had not seen Drum-mond from 1904 until 1918, and that he knew Drummond and the family intimately until 1904, and that Drummond’s reference to Mary Benson as “my wife” did not surprise him, “Because I knew he had been living with her as his common law wife for years and years.”

Another fitness testified by deposition that she was seventy-three years of age, knew Mary Benson very, very well, all the Benson boys and Tom’s wife, from 1910 until Mary’s death. That they lived at Crystal City all of the time, except two or three months, when they went off to get work. That she knew C. O. Drummond very, very well. That Mrs. Benson never exactly told her that Drummond was her husband. That the Benson boys never told her that Mary Benson and C. O. Drum-mond were married. That as a general opinion C. O. Drummond and Mary Benson were husband and wife. That Mary Benson never “came out” and told her that C. O. Drummond was the'father of Mary Benson’s boys, but that it was generally ufi-derstood that they were. That the Benson boys, nor any one of them ever told her that C. O. Drummond was their father. That the Benson boys called C. O. Drum-mond “Uncle Drum.” That C. O. Drum-mond never told her that Mary Benson was his wife; that Drummond never told her that he was the father of any one of Mary Benson’s boys. That she had never heard of Drummond or Mary Benson telling any one that they were husband and wife; that she never heard of C. O. Drummond telling any one that the Benson boys were his sons. That neither Drummond nor Mary Benson ever told her that they had agreed to live together as man and wife. That she had never heard from any one else that Mary Benson and Drummond had agreed to live together as man and wife.

The elements essential to a common law marriage are fairly well defined in the authorities. Grigsby v. Reib et al., 105 Tex. 597, 153 S.W. 1124, L.R.A.1915E, 1, Ann.Cas.1915C, 1011; Berger v. Kirby, 105 Tex. 611, 153 S.W. 1130, 51 L.R.A., N.S., 182.

“All that is necessary to constitute [a common law] marriage is that if the. parties mutually agree and consent together to become husband and wife, and thereafter carry out that agreement and live and cohabit together as husband and wife.” Grigsby case, supra [105 Tex. 597, 153 S.W. 1125, L.R.A.1915E, 1, Ann.Cas.1915C, 1011].

The agreement between the parties to become presently husband and wife, which is an essential element of a common law marriage, is easily understood and its application is not difficult. The difficulty which arises in this class of cases is in the application of what is meant by the term “live and cohabit together as husband and wife.” It is clearly the law in this State that the mutual consent of parties to become husband and wife, without living and cohabiting together as such, pursuant to the agreement, does not constitute a common law marriage. Authorities supra. The term “live and cohabit together as husband and wife” evidently means a living together, claiming to be married, in the 'relationship of husband and wife. Humble Oil & Ref. Co. v. Jeffrey, Tex.Civ.App., 38 S.W.2d 374 and authorities cited.

We shall presently discuss the agreement which is the first necessary element.

The agreement, of course, may be express or implied.

We have quoted above the only evidence which could be construed to be an attempt to prove an express agreement between C. O. Drummond and Mary Benson to presently become husband and wife. It amounted to no more than a declaration of Mary Benson that C. O. Drummond after the death of his wife, Katherine, had gone to 'Crystal City and they had renewed their relation as man and wife and lived together. Their relations before the death of Mrs. Katherine Drummond could not be, under the law, that of husband and wife. If it is true, as appellee contends, that the Benson boys are the sons of C. O. Drummond and Mary Benson they were born of a relation existing between C. O. Drummond and Mary Benson which must be deemed illegal, since during such time C. O. Drummond had a living wife. Therefore, the declarations attributed to Mary Benson cannot be said to be an express agreement between the parties to become presently husband and wife. The agreement may be implied. The appellees insist that the Benson boys are the children qf C. O. Drummond and Mary Benson, and that such boys were born at a time when C. O. Drummond had a living wife, “Aunt Tenn.” If this be true, it must follow that Mary Benson and C. O. Drummond well knew their conduct to be illegal. For Mary Benson was the niece of “Aunt Tenn” and all had lived in a small house together until Mary and her four boys moved to themselves. After Mary and her four boys moved to themselves another son was born to Mary, whom they call Joseph, and the appellees claim him to be the son of C. O. Drum-mond. After Mary and her five boys moved to Crystal City C. O. Drummond made occasional visits there and stayed in the front house with Mary Benson while “Aunt Tenn” was still living.

Under these facts, the following rules of law are applicable: “Where the connection between the parties is shown to have been illicit in its origin, or criminal in its nature, the law raises from it no presumption of marriage.” Crossett v. State, 97 Tex.Cr.R. 18, 260 S.W. 186, 188.

See Cuneo v. De Cuneo, 24 Tex.Civ.App. 436, 59 S.W. 284; Edelstein v. Brown, 35 Tex.Civ.App. 625, 80 S.W. 1027.

In the case of Consolidated Underwriters v. Kelly et al., Tex.Com.App., 15 S.W.2d 229, 230, it is said: “It frequently happens, especially in common-law marriages, that the marriage which, of course, includes the agreement to marry, is proved by circumstances, technically known as cohabitation. Proof that a couple lived together under the same name, introducing .each other as husband and wife, respectively, recognizing their children, and the many other respects tending to show their marital status, is sufficient to prove a marriage.”

It was said in the case of Schwingle v. Keifer, Tex.Civ.App., 135 S.W. 194, 195: “Where there is no direct and positive proof of the contract of marriage, it may be inferred or implied from the consistent conduct of the man and woman, and by an uncontroverted reputation in the community in which they live.”

The facts of the present case, when tested by the foregoing rules of law, do not establish a common law marriage between C. O. Drummond and Mary Benson. The inception of the relation, if as contended by appellees, was wrongful and illegal, and continued to be so until the death of Mrs. Drummond. There is no fact or circumstance to evidence an intent on the part of either C. O. Drummond or Mary Benson to change the relation that had theretofore existed. The living together was intermittent and not continuous, as it was before the death of Mrs. Drummond. Mary Benson continued to use the name Benson, not Drummond. They did not introduce each other as husband and wife. The Benson boys continued to use the name Benson, not Drum-mond. They continued to address Drum-mond in the same manner as before. Amy Benson, one of the appellees, testified that Drummond was called “Uncle” or “Uncle Drum” to conceal the fact that he was the father of the boys.

The nearest neighbors, who testified by deposition, stated that no one told them that Drummond and Mary Benson were man and wife, and that said parties had never told them of such a relation between-said parties. The isolated references, according to declarations attributed to Mary Benson and C. O. Drummond, wherein one or the other referred to each other as husband or wife, do not, in our opinion, satisfy the law in establishing a common law marriage. The letter from C. O. Drummond, dated about one month before his death, to Zach Benson, which was offered in evidence by the appellees, shows that Drummond considered his home in Duval County. The letter repels the contention of appellees that Drummond was the common law husband of Mary Benson. The^ Benson boys and Mary Benson are not referred to as the sons or wife of C. O. Drummond. It shows that Drummond and Allie left Duval County in August, and the amount of the expense that had been incurred in San Antonio, during Drummond’s illness there. It shows that neither the Benson boys, nor Mary Benson attended him during such illness. It is evident from the letter that Drummond, on account of his health, decided that he would “settle in San Diego and live and die here.” “I know all these people and they all know me and if I get down sick I can get medical attention and the people will help me.” If Drummond had considered himself the husband of Mary Benson and the father of the four Benson boys then living and unmarried, surely some aid and assistance in illness would reasonably have been expected from the Benson boys or Mary Benson. If Drummond and the Benson family had recognized the relations of husband and wife and father and sons to exist between the parties, surely during the last illness when Drummond had Allie Benson notified of such illness, some of the Benson family would have responded and attended the elderly man in such illness, or at least attended his funeral.

These and many other facts in the record repel the suggestion that C. O. Drum-mond and Mary Benson, mutually agreed to become husband and wife, and in pursuance to such agreement, lived and cohabited together as man and wife.

It is true that the record reflects many declarations attributed to C. O. Drummond which evidence an affection for the Benson boys and a desire on the part of Drummond to leave the boys his property upon his death. Such declarations further indicate that Drummond recognized the necessity of making a will in order to effectuate that desire. Drummond evidently changed his mind in that regard, because the record shows that he died intestate.

These facts serve to explain the verdict of the jury.

After a careful study of the entire record, the statements from the record in the briefs being challenged, we are of the opinion that the finding of common law marriage in the verdict of the jury is without support in the evidence and must be set aside.

The only remaining ground of recovery available to appellees, as shown by the pleadings and the verdict of the jury is the trust theory.

The appellees alleged that Tom Benson worked and labored to make money to pay for the land and that their labors and the moneys received therefrom were taken by C. O. Drummond and were used by him to pay the purchase price of said lands and plaintiffs therefore say that the heirs of T. W. Benson, deceased, became the equitable owners of said lands, by reason of the expenditure of their own money in the purchase of said lands. “In this connection plaintiff would further show to the court that prior to the purchase of said lands it was agreed by and between the •said C. O. Drummond and the said Mary E. Benson and her sons that she and said sons should labor and furnish such moneys as they could, to be turned over to said Drummond and used in the purchase of said land, which should be taken by Drum-mond and held in trust for Mary E. Benson and sons, and plaintiffs further say that the moneys made and furnished by their mother, Mary E. Benson, and her children, in fact paid for the lands involved in this suit, and that such moneys were taken and used by the said Drum-mond, deceased, under and by virtue of the agreement aforesaid, that he should use such moneys in the purchase of said' lands and should take title thereto in his own name and should thereafter hold the same during the term of his natural life for these plaintiffs, and by reason of such acts plaintiffs now say that they are the equitable owners and holders of said land and are now entitled to recover judgment for the title to and possession of said land, together with all the improvements thereon.”

The record shows that the land involved was purchased from the State of Texas on July 6, 1903, by Wenceslado Serna. On November 28, 1903, Drummond purchased from Serna forty acres of Section 308 and 160 acres of Section 392. Serna allowed the remaining 654 acres out of said Sections to lapse for non settlement.

On November 2, 1906, Drummond made due proof of occupancy and a certificate was issued to him by the State Land Commissioner. The northeast forty acres out of Section 308 was paid out and patented to C. O. Drummond March 7, 1907, and the remaining 600 acres out of Section 308, and all of Section 392, were paid out in full by Drummond’s administrator, September 16, 1924.

These lands were purchased under Articles 4218f, 4218ff, and 4218fff of the Revised Civil Statutes, 1895, as amended by Chapter 129 of the Acts of the 25th Legislature.

Under the above mentioned articles of the statute, Serna purchased from the State of Texas, and Drummond became a substitute purchaser.

The above Acts were amended April 15, 1905, by Chapter 103 of the Acts of the 29th Legislature. Tt was under this amended Act that Drummond purchased the remaining lands.

It is our opinion that the trust alleged in reference to the lands involved in this suit is contrary to public policy and therefore illegal and unenforceable. Brown v. Brown, 62 Tex.Civ.App. 308, 132 S.W. 887 (writ refused); Perry v. Martin, Tex.Civ.App., 180 S.W. 1148 (writ refused); Houston Oil Co. v. Votaw, Tex.Civ.App., 184 S.W. 647 (writ refused); Rogers v. Blackshear, 60 Tex.Civ.App. 576, 128 S.W. 938.

Other questions are raised by the parties, but, in view of our ruling heretofore made, become immaterial and will not be discussed.

The record in this case is voluminous, many witnesses having testified, consuming several days in the trial court. The parties seemed to have explored every conceivable avenue for the procurement of the facts and circumstances surrounding the issues made by the pleadings. It therefore affirmatively appears to have been well developed in all its details in the trial court. Under these circumstances it is our opinion that we should here render the judgment which should have been rendered by the trial court. Freshwater v. Hoyt, Tex.Com.App., 259 S.W. 923.

The judgment of the trial court will be reversed and judgment here rendered that appellees take nothing by their suit and pay the costs of this and the lower court.

Reversed and rendered.


author: GRAVES, Justice.

text:
    CITY OF GALENA PARK et al. v. CITY OF HOUSTON.
    No. 10953.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 19, 1939.
    Rehearing Denied Nov. 16, 1939.
    James G. Donovan and Wilmot F. Warner, both of Houston, for appellants.
    Sewall Myer, City Atty., and Vernon Coe, A. - L. Lewis, and Will Sears, Asst. City Attys., all of Houston, for appellee.
   GRAVES, Justice.

On April 18, 1913, the City of Houston, by an ordinance in all respects appropriating such power to do that as was granted it (a duly qualified city) under a general law of the State passed March 17, 1913, now appearing as Chapter 14, Title 28, or Articles 1183 to 1187, inclusive, of the Revised Statutes of Texas, extended its boundaries for an air-line distance of 20 miles from its then eastern limit-line down and along Bpffalo Bayou and the Houston Ship Channel, so as to include within the City for that distance such navigable stream, together with the land adjoining it on both sides for 2500 feet each way, from the threads thereof.

Thereafter, in 1935, the City of Galena Park, a small town incorporated under the general law, and pursuant to the statutes authorizing such municipalities in prescribed manner and circumstances to enlarge their boundaries, undertook to incorporate and include within its limits for general purposes a portion of the land so contiguous to Buffalo Bayou and the Houston Ship Channel that had theretofore been annexed to and appropriated by the City of Houston, under the ordinance referred to.

This cause, as between these two cities— the appellant and the appellee — both below and here, involved the single question as to which one of them had jurisdiction and control over that portion of the ship channel strip the appellant thus undertook to include within its own corporate limits.

The effect of the judgment of the trial court, from which this appeal proceeds, after the elimination of other issues and parties, was to hold that the stated effort of Galena Park to incorporate into its limits (and thereafter to control) that portion of the land lying within the previously incorporated larger strip by the City of Houston was abortive, null, and void, because the City of Houston had so acquired prior and exclusive jurisdiction and control thereof.

The rival claims to the disputed territory — that of the City of Houston being first in time, and all the other facts being undisputed — are thought to depend upon the construction that should be given cited Chapter 14, Title 28, of our Revised Statutes, headed “Cities on Navigable Streams”; its enactment in 1913, Acts 1913, c. 25, was attended by an emergency clause thus further enunciating the intent and objective of the Legislature in passing it:

“Sec. 3. The fact that there is now no law vesting in the larger cities of the State, situated upon navigable streams, the authority and power to efficiently provide navigation, wharfage and facilities therefor, and to regulate same, creates an emergency and an imperative public necessity, that the constitutional rule requiring bills to be read on three several days be suspended, and that this Act take effect and be in force from and after its passage, and it is so enacted.”

As before indicated, the City of Houston, being then situated upon the navigable stream of Buffalo Bayou, and being in existence under a special charter, one month after its passage adopted the necessary ordinance and thereby took advantage of such newly declared public policy of the state, then extending its jurisdiction over the 20-mile strip — inclusive of the portion here in controversy- — and has ever since maintained and exercised it.

This prompt action was apparently in consonance with the Legislature’s expressed view — in the quoted emergency clause recitation — that such a vesting of power in the larger cities of the state was even then “an imperative public necessity”. It must, therefore, have been intended to thereby vest in the cities so situated effective power to thereafter “efficiently provide navigation, wharfage and facilities therefor, and to regulate same.”

When the detailed provisions of the Act are looked to, such policy seems all the more plain, the specific purposes being set out in these four successive Articles Nos. 1183 to 1186, inclusive. There is then appended Article 1187, which, though last in order, is worthy of mention first as reflecting clear light upon what was intended in the preceding four. It runs as follows:

“The power granted in the four preceding articles shall not authorize the extension of the territory of any city for the limited purposes named so as to include any land which is already part of any other city or town corporation whether incorporated under the general laws or under special law, or any land at the time belonging to any other city or town.”

Thus by express interdiction the City of Houston in 1913, when it came to so extend its limits, could not have included therein the portion here involved, had it already been incorporated into the City of Galena Park; by the same token, it would seem that in 1935, when the City of Galena Park in turn came seeking the same territory, it was likewise precluded from taking it in, because of its special incorporation and appropriation by the City of Houston 22 years before.

Undisputedly, as already recited, the City of Houston in 1913 was eligible under the first Article of this Act to take advantage of its privileges as a city located upon a navigable stream, and acting under a special charter, and it did so, conforming its ordinance in all respects to the statute, thereby in fact acquiring over this 20-mile by 5000-foot-strip of land along its ship channel all the power that was vested in it by that legislation.

By the next Article 1184, it is affirmatively given the express power to “secure all the land” within the added territory by purchase, condemnation as for streets, or gift, for these two purposes: “ [1] for the improvement of the navigation of said navigable streams or waters either by the United States or by said city, or by any navigation or other improvement district, and [2] for the purpose of establishing and maintaining wharves, docks, railway terminals, side tracks, warehouses or any other facilities or aids whatsoever to either navigation or wharves.”

By Article 1185, the legislative sanction is given to the inclusion of the whole of the abutting strips of land when the ordinance has been duly passed, and the City is. prohibited from taxing the property so taken in, “unless such property is within the line and within the limits of the general city boundaries or limits.”

Article 1186 constitutes an affirmative and express grant of exclusive jurisdiction and authority thereafter over such added territory, in this language:

“After the passage of the ordinance adding said territory to said city, said city shall have and exercise the fullest and most complete power of regulation of navigation and of wharfage and of wharfage rates and of all facilities, conveniences and aids to wharfage or navigation consistent with the Constitution of this State, and shall further have authority by criminal ordinances or otherwise, to police the navigation of said waters and the use of said wharves and facilities and aids to wharf-age and navigation.”

Contrary to the opposing contentions of the appellant, it is concluded that the objective, intent, and accomplishment of the Legislature in the enactment of this statute — despite the recitation in Article 1183 thereof that the extension of the City’s limits should be “for the limited purpose named in the four succeeding articles” • — was to authorize the placing of a pro bono publico servitude for navigation purposes on the land so annexed by a city— that is, to thereby preempt or earmark the same for those purposes — to the exclusion thereafter of any control thereof by another city or town; to that end, the right to “secure” or to appropriate the whole terrain itself for such uses; after it had been reduced to possession in the usual and customary way in such circumstances — that is, “by purchase, condemnation, or gift” — was apparently contemplated, if that became-necessary to the navigation of the stream; if this be true, the right to thus secure and. appropriate the whole of the land itself for navigation purposes, when exercised and so long as maintained, would necessarily exclude its subsequent appropriation for a. governmental purpose by another municipal authority; hence there could not be two co-existent uses by two different cities for different purposes, as appellant so earnestly argues, because the Legislature had thus-expressly withdrawn the land so dedicated' and committed to the furtherance of navigation from the operation of the general law merely authorizing incorporated cities- and towns like appellant to extend their boundaries; consequently, appellant’s argument and cited authorities to the effect that this statute only granted the City of Houston special and limited powers for navigation purposes over the disputed territory, and did not interfere with its co-existent use by appellant for all other general governmental purposes, all become inapplicable.

On the contrary, since the statute does,, by necessary effect, so negate the passing of any such claimed right to other cities and towns under the general law of their creation, and, at the same time affirmatively does confer exclusive jurisdiction over the territory upon eligible annexing cities, the well settled principle that two municipal corporations cannot have co-existent-control over the same territory and contemporaneously exercise essentially the same governmental powers in it applies. Strosser v. City, 100 Ind. 443; Taylor v. City, 47 Ind. 274; President of City of Paterson v. Society, 24 N.J.L. 385; Beyer v. City of Athens, 6 Cir., 249 F. 849; People v. Board, 41 Mich. 647, 2 N.W. 904; Weatherwax v. Grays Harbor, 116 Wash. 212, 199 P. 303; Maulding v. Skillett, 313 Ill. 216, 145 N.E. 227; People ex rel. v. Baldridge, 267 Ill. 190, 108 N.E. 49; People ex rel. v. Lease, 248 Ill. 187, 93 N.E. 783.

It also follows as a corollary, from the construction herein given the Act under review, that appellant’s initial objection to the effect that its own incorporation could not be called into question, as was done in this proceeding, without the joinder of the State under a writ of quo-warranto, is unsound; this, for the reason that its attempt to incorporate that portion of the territory already lying within such special limits of the City of Houston— being in contravention of a general law of the State — was wholly invalid and void, thereby subjecting such pseudo-incorpora-' tion to collateral attack without the joinder of the State. City of Port Arthur v. Gaskin, Tex.Civ.App., 107 S.W.2d 610; Hunt v. Atkinson, Tex.Com.App., 12 S.W.2d 142.

It follows from these conclusions that the trial court’s judgment should be affirmed; it will Be so ordered.

Affirmed.