author: HIGGINS, J.

text:
    SHANNON et ux. v. CHILDERS.
    (No. 835.)
    (Court of Civil Appeals of Texas. El Paso.
    April 4, 1918.
    On Rehearing, April 18, 1918. Second Petition for Rehearing Denied May 2, 1918.)
    1. Covenants i&wkey;71 — Running with Land— WARRANTS'.
    Covenant of warranty is in futuro, and runs with the estate into the hands of whoever becomes the owner of the estate, ceasing to do so only when broken by eviction; mere existence in another of a superior title, which has never been enforced, not amounting to a breach.
    2. Covenants <&wkey; 102(2) — Warranty-Breach — Constructive Eviction.
    Where a survey of land made and sold by the state wholly conflicted with other prior surveys, action of the state in forfeiting it amounted to a constructive eviction, breaching a covenant of warranty in a deed thereof.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Constructive Eviction.]
    3. Covenants &wkey;>100(l) — Warranty — Failure oe Title.
    Complete failure of title does not amount to mere shortage in acreage, for which action -for breach of covenant will not lie.
    4. Husband and Wiee- <&wkey;229(3) — Covenant oe Wiee — Action—Petition.
    The petition for breach of a covenant of warranty showing a defendant was married when the deed- was executed, and alleging no facts which under any possible theory would render the disability of coverture inoperative, fails to state a cause of action against her, and will not support a judgment against her.
    5. Husband and Wiee <&wkey;230 — Coverture as Deeense — Necessity oe Pleading.
    Defense of coverture need not be pleaded where the petition discloses the disability.
    On Rehearing.
    6. Appeal and Error <&wkey;>1173 (1) — Dismissal as to One and Aeeirmance as to Another.
    Appellee,' on appeal by defendants, may dismiss as to one against whom the petition states no cause of action, and have an affirmance as to the other.
    Appeal from District Court, Presidio County; Jos. Jones, Judge.
    Action by Mrs. Annie Childers against James D. Shannon and wife. From an adverse judgment, defendants appeal.
    Suit dismissed as to wife, and judgment affirmed as to husband.
    W. C. Jourdan, of Marfa, and Jos. M. Nea-lon, of El Paso, for appellants. C. E. Mead and H. O. Metcalfe, both of Marfa, for ap-pellee.
   Statement of Case.

HIGGINS, J.

On January 20, 1916, appellants, James D. Shannon, and his wife, Johnnie Shannon, by general warranty deed conveyed to W. P. Fischer several tracts of land, among them being survey No. 1467, containing 382.9 acres. The land was conveyed for a consideration of $3.20 per acre cash. The deed recites that 3,409% acres was conveyed. If survey No. 1467 be omitted, there will be a shortage of 382.9 acres. On January 21, 1916, Fischer, by general warranty deed, conveyed to appellee, Mrs. Childers, several surveys of the same land, including survey 1467, purporting to contain 382.9 acres. The land was conveyed for a consideration of $3.20 per acre cash.

When Shannon and wife conveyed the land to Fischer, it was intended and understood that he would convey the same to Mrs. Chil-ders. On February 21, 1916, and before Mrs. Childers had paid Fischer, a question arose as to the existence of survey 1467; and, as an inducement for her to pay for same, Shannon and wife executed a bond to Mrs. Chil-ders in which, it was agreed that a survey should be made of 1467 by State Surveyor Hod, or some other capable surveyor to be agreed upon, who should survey the same in the presence of the parties, and, in the event the survey should prove to be of less acreage than 382.0 acres, then the Shannons would pay Mrs. Childers for such shortage at the rate of $3.20 per acre.

Survey 1467 purported to be located between blocks W J <3- 7 and 9 of the T. C. Railway Company Surveys. These blocks were surveyed and located in 1882. The east line of -Block W J G7 and the west line of 9 are coincident, and one and the same straight line. The two blocks were tied together. Survey 1467 was surveyed and located by another surveyor some time subsequent to 1882. It was surveyed and located upon the theory that there was a vacancy between the two blocks. The surveyor, Dod, went upon the ground and found that the blocks did in fact join. Survey 1467 had been sold by the state as a school survey, and the school fund was interested therein.

After Mrs. Childers bought survey 1467, the Commissioner of the General Land Office authorized a resurvey thereof. The report of the resurvey showed conclusively that survey 1467 was erroneously located on the theory that there was a vacancy between said blocks, that there was no vacancy, and that survey 1467 was in conflict with the other surveys. The commissioner thereupon canceled survey 1467, and authorized the county clerk to enter a statement on his records showing that the survey was canceled because it did not exist. The commissioner caused a warrant to be issued by the state for the amount paid upon the purchase price to the state upon said survey, together with the interest paid, and the same was collected by Mrs. Childers.

This suit was brought by Mrs. Ohilders against Shannon and his wife, and their sureties upon the bond above mentioned, to recover the amount paid by her for survey 1467. Recovery was sought upon the bond and upon the covenant of warranty contained in the deed to Fischer. Recovery upon the bond was denied upon the ground that the survey by Dod was made without notice to Shannon and wife and in their absence, which was not authorized by the bond. Recovery upon the warranty was allowed against Shannon and wife for the amount paid by Mrs. Ohilders for the survey, less the refund obtained from the state.

Opinion.

Appellant contends that upon the plaintiff’s pleadings and the facts found by the court it appears the Shannons had no title to survey 1467 at the time they conveyed to Fischer, and consequently the covenant of warranty was broken when made; that it therefore ceased to run with the land, and no right 'of action upon the covenant passed to Fischer’s vendee, Mrs. Ohilders.

Covenants of seisin and right to convey and against incumbrances are in prsesenti, and, if they are ever broken, the breach is simultaneous with the making of the covenant. As a consequence, a cause of action is at once created in favor of the covenantee to recover his damages. In other words, they are not covenants which run with the estate, and the cause of action in favor of the ven-dee, arising out of breach, does not pass to his vendee. 3 Washburn on Real Property (6th Ed.) § 2374.

The broadest and most effective of the covenants contained in American deeds, and the only one in general use in this state, is that of warranty. This covenant is in fu-turo, and runs with the estate in respect to which it is made, into the hands of whoever becomes the owner of such estate. Id. §§ 2386 and 2393; Flaniken v. Neal, 67 Tex. 629, 4 S. W. 212. The authorities say that, if once broken by eviction, the covenant of warranty stands upon the same ground as those covenants which are broken as soon as made; that it then ceases to run with the land, and the action for the breach of the covenant can be maintained only by the owner of the land and assignee of the covenant at the time it is broken. Id. §§ 2393-4; Tiedeman on Real Property (2d Ed.) § 860.

This question seems never to have been passed upon by the courts of this state. It has no pertinency in this case, and is not applicable to the facts here presented; for it appears that the cancellation of the sale of section 1467 by the Commissioner of the General Land Office did not occur until subsequent to the conveyance by Fischer tc. Mrs. Childers. The mere existence of a superior title in another, which has never been enforced, does not amount to a breach of the covenant of warranty. The tenant must be disturbed; he must be evicted. 3 Washburn, § 2401. Though he need not be evicted by legal process, it is enough that he has yielded possession to the rightful owner, or, the premises being vacant, the rightful owner has taken possession. 3 Washburn, §§ 2389-2401; Westrope v. Chambers, 51 Tex. 178.

In order to constitute a breach of this covenant, there must be something tantamount to an eviction. 3 Washburn, § 2390. The court below made no finding as to an actual disseisin of Mrs. Ohilders, but held that the action of the state, through its legally constituted authorities, in forfeiting the survey, in legal contemplation, amounted to an eviction. This we think to be correct. It was the final act in the complete failure of any shadow of title to the survey, and was a constructive eviction. 7 R. C. L. 1149. And since it occurred after tlie conveyance to Mrs. Childers, the breach of the covenant was finally consummated while she was the owner, and the cause of action arising from the breach then accrued to her.

Upon this view of the case, she was not an assignee subsequent to the breach.

Other assignments assert that the facts simply disclose a shortage of acreage for which a recovery upon the covenant will not lie. A complete failure of title, rather than a shortage of acreage, is shown, for which reason there is no merit in this contention.

The petition upon its face discloses that defendant Johnnie Shannon was the wife of James D. Shannon at the time the deed to Fischer was executed. No facts are alleged which, under any possible theory, would relieve the disability of coverture so as to render her personally liable for a breach of the covenant of warranty. Baird v. Patillo, 24 S. W. 813; Wadkins v. Watson, 86 Tex. 194, 24 S. W. 385, 22 L. R. A. 779. The petition, therefore, fails to state a cause of action against her, and does not support the judgment against her. Speers, Law of Marital Rights (2d Ed.) 458; Wheeler v. Burks, 31 S. W. 434; Trimble v. Miller, 24 Tex. 215; Covington v. Burleson, 28 Tex. 368.

Appellee calls attention to cases holding that it was necessary for Mrs. Childers to plead coverture. These were cases where the disability was not disclosed by the petition.

The remaining assignments have been considered and are regarded as without merit.

Reversed and remanded.

On Rehearing.

Appellee has filed a motion dismissing as to Mrs. Johnnie Shannon, and asking that the judgment be then affirmed as to James D. Shannon. The motion is granted. Miller v. Sullivan, 89 Tex. 480, 35 S. W. 362; McDonald v. Cabiness, 100 Tex. 615, 102 S. W. 721; Boyd v. Urrutia, 195 S. W. 341.

The order reversing and remanding this cause is set aside; the suit of appellee against Mrs. Johnnie Shannon is dismissed, and the cause affirmed as to James D. Shannon.
      <§=AFor other cases see same topic and KEY-NUMBER in ah Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    DALLAS HUNTING & FISHING CLUB v. NASH et al.
    (No. 1933.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 13, 1918.
    On Motion for Rehearing, March 21, 1918.)
    1. Appeal and Error <&wkey;1042(2) — Haemless EeeoR.
    Error, if any, in striking from the pleas matters of defense admissible under the general lea of not guilty in trespass to try title, was armless.
    ' 2. Appeal and Eeeor <&wkey;926(4) — Review— Presumption — Evidence—Exclusion.
    In trespass to try title to determine boundaries, in the .absence of showing of relevancy of a judgment in a prior action between different parties involving the same facts, exclusion of such judgment cannot be ruled error.
    3. Boundaries <&wkey;25 — Trespass to Try Title t&wkey;40(4) — Control op Calls — Prior Survey.
    Since a subsequent patent must yield to the calls for boundaries in an older survey, and the grantees of such patent took nothing as to the portion involved in the conflict, their deeds were immaterial in an action of trespass to try title by claimants under the prior patent.
    4. Judgment <&wkey;256(2) — Finding oe Jury.
    In the absence of motion to set a$ide the findings of the jury, the trial court is bound to enter up a judgment in accordance with the jury’s answers.
    5. Boundaries <&wkey;3(4) — Control of Calls— River Bank.
    In the absence of showing that a call for a river bank was a mistake, such call should control a call for distance.
    6. Adverse Possession &wkey;>95 — Payment of Taxes.
    Where plaintiffs in trespass to try title claimed under a prior grant, defendant’s evidence that he paid taxes on land described under the subsequent grant showed that one of the essentials for acquiring title under the five-year statute of limitations was lacking.
    7. Appeal and Error <&wkey;882(ll) — Invited Error.
    In trespass to try title, where issue of ten years’ adverse possession was submitted to the jury at defendant’s request, defendant could not question the sufficiency of the evidence to support the jury’s finding against such adverse possession.
    On Motion for Rehearing.
    8. Judgment &wkey;>681 — Estoppel—Successors in Title.
    In trespass to try title by persons claiming under the original patent against persons claim- , ing under a conflicting subsequent patent, a ‘ judgment in an earlier suit between different persons dividing the original patent and fixing a corner as on a slough instead of the river called for by the patent was not admissible, since in any event plaintiffs would not be estop-ped by such judgment, where they deraigned title under earlier owners.
    Appeal from District Court, Dallas County; W. L. Whitehurst, Judge.
    Trespass to try title by Wood Nash and others against the Dallas Hunting & Fishing Club. Judgment for plaintiffs, and defendant appeals.
    Affirmed. On motion for rehearing. Motion overruled.
    Morris & Williamson, of Dallas, for appellant. Snodgrass, Dibrell & Snodgrass, of Coleman, Lively & Goggans, of Dallas, J. H. Randell, of Denison, and Holland & Bartlett, of Dallas, for appellees.
   HODGES, J.

This is really a boundary suit. It was instituted by the appellees, however, as an action of trespass to try title to a small tract of land in Dallas county claimed as a part of Harrison survey No. 331 bordering on the Trinity river. Appellant claims it as a part of the J. S. Lewis survey, which was made some time subsequent to the issuance of the Harrison patent. The appellant pleaded the general issue of not guilty, and the five and ten year statutes of limitation. It also pleaded specially some matters of defense which were admissible under the plea of not guilty. These, upon special exceptions by the appellees, were stricken out, and that ruling of the court has been assigned as error.

Conceding that the court erroneously sustained those exceptions, the rulings were harmless for the reason that the matters therein pleaded were, so far as material, admissible in evidence under the plea of not guilty. The record shows that there were four Harrison surveys numbered from 329 to 332, inclusive, patented in 1847. The Lewis survey, which adjoined the Harrison surveys on the southwest and south, was patented in the year 1856. The Harrison surveys bordered on the Trinity river, extending thence north, or, rather, northeast. Survey No. 331 is described in the patent as follows:

“Beginning at the northwest corner of George P. Harrison survey No. 330 on the bank of the Trinity river for first corner ; thence north 45° E. 3,045 varas to second corner; thence north 45° W. 950.4 varas to third corner; thence south 45° W. 3,963 varas to fourth corner on bank of the Trinity river; thence south 63% ° E. with the meanders of the Trinity river 1,002 varas to the place of beginning.”

At each of the corners above referred to marked trees were called for. The beginning and the second and third corners of this survey, and the lines between them, were located-upon the ground. The fourth corner and the line from there to the beginning were the matters in dispute. The third line, appellant contends, should stop at a slough which was apparently at one time the main channel of the Trinity river; while the ap-pellees contend that it should cross the slough and continue 484 varas farther southwest to the bank of the present channel of the Trinity river. To stop where the appellant contends that it should would make the line 261 varas shorter than called for in the field notes; while to extend it to the point where the appellees claim it should be would make it 223 varas longer.

The court submitted three special issues. In response to the first the jury found that the land in controversy was within the Harrison survey No. 331. The second and third issues related to the defense, of limitation, both of which were answered in favor of the plaintiffs. Upon those findings judgment was entered for the appellees.

The appellant offered in evidence a judgment rendered in 1903 in the district court of Dallas county, in a suit filed by the heirs of .Lelia B. Robertson et al. against Paine, Hull, and Pruitt. This was offered for the purpose of showing that the slough was then recognized as a boundary instead of the present channel of the Trinity river. It was excluded upon the objection that it was immaterial and irrelevant and had not been recorded in the office of the county clerk as required by statute. That ruling is made the basis of an assignment of error. ■ The relevancy of that judgment has not been shown, and we are unable to say that its exclusion was an error. The portion of the judgment containing the general description of the land as set out in the bill of exception follows the field notes of the patent.

Appellant also offered in evidence a number of deeds showing a chain of title under the Lewis patent. The latter, being a subsequent grant, must yield to the calls for the boundary lines in the older survey. The holders of deeds under the Lewis patent took no title to that portion involved in the conflict. Hence the court properly held that those deeds were immaterial. But it is not contended that the appellant claimed under those deeds.

It is also insisted by the appellant that the court should have entered judgment in its favor for the land because the findings of the jury were not supported by the evidence. No motion was made in the trial below to set aside the findings of the jury, and the court was bound to enter up a judgment in accordance with the answers returned. Arkansas Fertilizer Co. v. City National Bank, 137 S. W. 1179. So far as is disclosed by the record, the only method of following the lines located in the original survey of the Harrison land is found in the calls of the field notes given in the patent. There we find that in running the third line there is a conflict between the call for distance and that for the bank of the river, a natural object. Under the well-established rules governing the relative importance of such calls the latter should control; unless there are other facts and circumstances sufficient to show that it was a mistake. As tending to indicate such mistake in this instance the appellant relies upon the mathematical inaccuracy of the fourth call for course and distance which would result if the third line be extended to the river as insisted upon by the appellees. But to locate the fourth line where appellant claims it should be would ignore not only the natural object called for in the patent, but also the call for distance in the third line. The practical result of appellees’ contention then is that the call for distance in running the third line should be ignored in order to give effect to the call for course and distance in running the fourth line. It may be that in making the original survey there was an error in calling for the bank of the river, but the evidences of that error are not so apparent in this record as to require us to hold that the jury’s findings were incorrect.

It is also contended by the appellant that the evidence showed conclusively that it had acquired title to tlie property by both the five and. ten year statutes of limitation. Assuming that the appellant can avail itself of that objection in the present state of the record, the evidence does not justify the claim. It was shown that the appellant paid taxes on land described as a part of the J. S. Lewis survey. If that be true, then one of the essentials for acquiring title under the five-year statute is lacking. The issue of ten years’ adverse possession was submitted to the jury at the request of the appellant; and for that reason it is not in an attitude to question the sufficiency of the evidence to support the finding. Moreover, the testimony regarding adverse occupancy was in other respects of such a character as to justify the answers returned by the jury.

The remaining assignments of error are without merit, and the judgment of the trial court is affirmed.

On Motion for Rehearing.

Appellant reiterates with some amplification the questions presented in its brief. Probably we should discuss more in detail the assignment based upon the exclusion of the judgment referred to in the original opinion. The bill of exception to the exclusion of this testimony shows that judgment had been rendered in favor of J. and P. Robertson and Guy Fleming against certain named defendants for the title and possession of the 640 acres of land described in this case as survey No. 381. In giving the field notes the calls are practically the same as those contained in the patent. The fourth corner, the one here in dispute, was located on the bank of Trinity river, and the last call is, “thence 62%° E. with the meanderings of Trinity river about 1,002 varas to the place of beginning.” The judgment further awards to same plaintiffs all of that survey against Henry Payne, R. P. Hull, and J. A. Pruitt, except three described tracts aggregating 360 acres. The first tract of 160 acres, claimed by Payne, is described substantially as follows:

“Beginning at the W. corner of survey 331; thence N. 45° E. along its N. W. line 2,834 varas to a stake; thence S. 45° E. 396 varas; thence S. 45° W. about 2,217 varas to a stake on the bank of Trinity river or a large slough which was taken for said river in locating said survey; thence N. about 60° W. with the meanderings of said slough to the place of beginning.”

The second tract, set apart to Hull, begins on the line of the tract above described, and also calls in a similar manner for the slough. The same description calling for- the slough is contained in the third tract, which was set apart to Pruitt. These three tracts are situated in the west or southwest end of Harris on survey No. 331. It will be noticed that the beginning corner of the first tract above described is the west corner of survey 331, which is the corner here in dispute. In locating that corner it was necessary to consult the field notes of the patent. Hence, if the patent located it upon the bank of the Trinity river, that must be the place of beginning in making these three subdivisions. The call for the river, or slough taken for the river, is in the location of the last or fourth corners in making those'subdivisions. The record shows that the appellees acquired all the land in that portion of Harrison survey 331; so that if under the terms of the judgment a part of it was omitted in the award to Payne, Hull, and Pruitt, the appellees would not thereby be estopped, for they deraigned title under the former owners who held any interest in the land. The judgment was not relied upon as a necessary link in their chain of title; it merely settled a controversy between claimants of subdivisions of the land with which the appel-lees had no concern.

The motion for a rehearing is overruled.
      ©ssFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GRIFFIN et al. v. BELL et al.
    (No. 1885.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 20, 1918.
    On Motion for Rehearing, March 7, 1918.)
    1. Contbacts <&wkey;91 — Option — Consideration.
    Seventy dollars cash actually paid for an option to explore and develop oil lands was sufficient to make the issue of valuable and adequate consideration one of fact to be passed on by the court or the jury.
    2. Appeal and Error <&wkey;909(l) — Presumptions — Decision of Issues.
    The Court of Civil Appeals must presume that the trial court decided all controverted issues of fact not submitted to the jury in harmony with the judgment rendered.
    3. Contracts <&wkey;59 —Option or Privilege —Cash Consideration — Lack of Mutuality.
    Where the $76 cash paid by defendants to plaintiffs, was a valuable and adequate consideration for an option or exclusive privilege to explore and develop the mineral resources of plaintiffs’ oil land which plaintiffs gave to defendants, though defendants did not bind themselves to exercise their option or privilege, or to do anything toward development of the mineral resources of the land, the contract was not subject to cancellation on account of its unilateral character on its face, imposing an obligation only on plaintiffs, since mutual promises are necessary only when there is no other consideration.
    4. Mines and Minerals <&wkey;75 — Option to Develop Mineral Lands — Consideration.
    The $70 cash paid by defendants was not only the consideration for the privilege extending over the first term of six months, but for all the rights and privileges, conditional or unconditional, which the contract conferred, including the conditional right of claiming an extension of the option; payment of the $70 being what induced the execution of the contract, and being the consideration for all the rights and- privileges therein granted.
    5. Contracts <&wkey;143 — Construction.
    In construing a contract, it must be viewed (n its entirety. . ,

      6. Mines and Minerals &wkey;>59 — Option to Develop Oil Land — Lack of Intention to Drill.
    Where defendants acquired from plaintiffs for cash an option to develop plaintiffs’ land for oil with a view to sell the privilege at a profit, not binding themselves to sink wells, violating no agreement by failing to do so, the fact that they acquired the option without intention to drill is no ground for cancellation at plaintiffs’ suit.
    7. Mines and Minerals <&wkey;59-OiL Option or Lease — Failure oe Wipe to Sign.
    Whore the wife of a joint owner of land having a homestead right failed to sign lease or option to develop the land for oil, her failure could only be invoked to limit the rights the lessees or optionees might claim, not as ground for cancellation at suit of tho lessors.
    On Motion for Rehearing.
    8. Contracts <&wkey;53 — Consideration — Adequacy.
    Where the consideration is sufficient to be denominated valuable, courts do not concern themselves with the relative value of tho properties exchanged, a rule subject to some exceptions, as where the consideration is so grossly out of proportion to the property conveyed as to shock the conscience, or bear evidence of fraud on its face.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Suit by Nancy Griffin and others against J. A. Bell and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Young & Young, of Marshall, for appellants. W. G. Banks, of Carthage, Geo. L. Huffman, of Marshall, and J. G. Woolworth and J. R. Duran, both of Carthage, for ap-pellees.
   HODGES, J.

The appellants Nancy Griffin and her children own a tract of about 250 acres of land situated in Panola county. The property belonged to the community estate of Nancy Griffin and her deceased husband, and at the time of the transactions hereinafter described was occupied by her as her homestead. Her children also resided on and used portions of the land. In March, 1916, Nancy Griffin, joined by one of her sons, executed an oil lease conveying certain mineral rights to J. A. Bell and J. P. Evans. Some time later it was discovered that this lease had not been signed by all of the Griffin heirs, and on July 1, 1916, what is referred to as a “corrected lease” was signed and acknowledged by all of the interested parties, except the wife of one of the Griffin sons. This instrument recites that it was executed in lieu of the first lease and for the purpose of ratifying and confirming that instrument. The material portions of this second instrument are as follows:

“The State of Texas, County of Panola.
“Know all men by these presents: That we, * * * hereinafter styled lessors of the county of Panola and state of Texas, have and by these presents do hereby demise, let, and lease unto J. A. Bell and J. P. Evans, their successors and assigns, tho tract of land hereinafter described, for the purpose of exploiting the. same for and the production of minerals therefrom, and to that end also grant the exclusive right of drilling and operating thereon for oil or gas and other minerals, together with a right of way for and a right to lay pipe lines to convey water, oils, steam, and gas, and the right to have and use sufficient water, oils, gas, and coal from the premises to drill and operate any wells that they may bore or shaft they may excavate, or in the treating so as to make merchantable any of such minerals, and also such other privileges as are reasonably requisite for the conduct of said operations and the right to remove at any time, from said premises, any and all property which may have been placed thereon by the said J. A. Bell and J. P. Evans.
“The said premises to which this instrument does apply are: * * * To have and to hold unto the said J. A. Bell and J. P. Evans, their successors and assigns, for tho term and under the provisions as follows, to wit:
“First. There is expressly granted to the said J. A. Bell and J. P. Evans the right at any time before the expiration of six months from this date to begin operations for the drilling of a well for oil or gas on said premises, and also the right to extensions of time in which to begin such operations for the successive periods of six (6) months, on condition that the said J. A. Bell and J. P. Evans shall, on or before the first day of each such respective six months’ period, pay to the lessors or deposit to the credit of the lessors in the Commercial National Bank of Shreveport, La., the sum of one hundred twenty-five and forty one-hundredths ($125.40) dollars, provided that if payment shall not be made on or before the first day of each such respective six months’ period, then on such default, this lease shall wholly determine; provided further that these successive periods in which the right may be acquired to begin operations of drilling a well in search of oil or gas shall not exceed in the aggregate five (5) years from this date, and if such operations shall not be begun on or before the expiration of said five (5) years from this date, then this lease shall wholly determine.
“Second. If the said J. A. Bell and J. P. Evans shall avail itself of tho right herein granted, and begin operations of drilling a well on said premises, then from and after the beginning of such operations, the said J. A. Bell and J. P. Evans shall not be required to make any further money payments hereunder. If the said J. A. Bell and J. P. Evans shall begin such operations of drilling a well it obligates itself to prosecute such operation with reasonable diligence. If the said J. A. Bell and J. P. Evans shall begin such operations of drilling a well within the fixed twelve months’ period from this date, or within any extension period for which it may have paid as above provided the said J. A. Bell and J. P. Evans shall have the right to make as many attempts to find oil or gas as it pleases, and to continue the exercise of such right as long as it pleases, even beyond said term of five years from this date; provided only, such attempts shall be successive in the sense that until oil or gas be found not more than sixty days shall elapse between the cessation or abandonment of work on one well and the beginning of work on another.
“Third. If in the exercise of the right hereby conferred oil or gas be found in paying quantities on said land, then the said J. A. Bell and J. P. Evans shall deliver as royalty to said lessors free of all expense, one-eighth (%) part of all oil saved from that produced, such delivery to be made either in tanks with connections by lessors provided, or into any pipeline that may be connected with the well, and if any well on said premises produces gas in paying quantities, and such gas is used or marketed off the premises by the said J. A. Bell and J. P. Evans, then the said lessors shall be paid at the rate of $250.00 per year for each and every such well, such payments to be made at the end of each such year.
“Fifth. It is expressly declared that if oil, gas, or other minerals, or any of them, he found in paying quantities then the said J. A. Bell and J. P. Evans shall become at once vested with the exclusive right to mine for and produce same, and any one or more or all of same, as long as any one of said minerals can be produced in paying quantities.
“Seventh. It is further provided that if oil or gas or other minerals in paying quantities shall be found and the said J. A. Bell and J. P. Evans, its successors or assigns hereunder, shall conclude that it or they do not desire to operate longer under this lease, then the right is conferred to surrender the same upon payment of one hundred ($100.00) dollars to the lessors and such right of surrender shall alsp confer the privilege of removing from said premises any and all material placed thereon by the said J. A. Bell and J. P. Evans, its successors and assigns.
“Ninth. It is further agreed that all the conditions and terms hereof shall extend to the heirs, executors and legal representatives, successors and assigns of the parties hereto. The said J. A. Bell and J. P. Evans has this day paid to the said lessors the sum of ($1.00) one dollar, the receipt whereof is hereby acknowledged and other valuable considerations and which payment is received in full satisfaction of any and every right and privilege granted hereby, including the right to extend the period.for the exploration of said land.”

In December, 1916, Nancy Griffin and her children brought this suit against Bell and Evans and other interested parties for the cancellation of those leases. In an amended original petition filed in March of the following year the. plaintiffs set forth as grounds for cancellation that the execution of the lease by them was procured by fraud and was without consideration; that the lessees Bell and Evans secured the rights therein granted purely for speculative purposes and with no intention of attempting the development of the mineral resources in their land. They further alleged that the lease upon its face does not bind the lessees to the performance of any obligation or service, and is for that reason unilateral and not binding upon the lessors. The Atlas Oil Company, the Humble Oil Company, and the Palmetto Oil Company were joined as parties defendant upon averments that they had acquired by assignment through quitclaim conveyances all rights claimed by Bell and Evans under the terms of the lease. Bell, Evans, and their associates filed an answer in which they pleaded to the jurisdiction of the court, excepted to different parts of the plaintiffs’ original petition, and finally disclaimed any interest in the subject-matter of the suit. Each of the oil companies above mentioned, claiming a separate right to a specific part of the land, answered by appropriate pleas and specially averred that the plaintiffs received a cash consideration of $70 at the time the lease was executed. It was also alleged by them that the sum of $125.40 provided for as the consideration for a six months’ extension of the lease had been paid into the Commercial National Bank of Shreveport, La., and there placed to the credit of the lessors. The appellants by a supplemental petition specially denied the payment of the cash consideration of $70, but offered, in the event the court found that such consideration had been paid, to return the same as a condition for the cancellation of the contract. The case was submitted to the jury on special issues, and upon the answers returned the court entered a judgment for the defendants below.

The objection which should logically first claim attention is that which denies the mutuality of the lease contract. A careful analysis of that contract, or lease, as it is called, failed to disclose any unconditional obligation assumed by the lessees. It is not in fact a lease of land or of minerals, but a contract for the sale and purchase of an option or exclusive privilege of exploring and developing the mineral resources of the appellants’ land. But the lessees do not therein bind themselves to exercise that option or privilege, or to do anything toward the development of those resources. If an obligation to that effect is essential to furnish a proper consideration, then this agreement is without any. But mutual promises are necessary only when there is no other consideration to sustain the contract. Landowners have the right to convey such options or' privileges upon terms that suit them, and for any length of time they deem proper. 'Such conveyances when based upon an independent consideration are not void because of the absence of reciprocal obligations on the part of the grantee. National Oil & Pipe Line Co. v. Teel, 95 Tex. 591, 68 S. W. 979.

Several of the appellants who testified upon the trial admitted that all of them had received $70' in cash as part, at least, of the consideration for the execution by them of this contract. It is true they also testified that this sum was presented to them as a gratuity by a representative of one of the appellees. But the jury found that it was not a gratuity. Appellants also testified that another representative of one of the appellees promised as a further consideration for their signatures to the contract that his company would begin sinking a well on appellants’ land within 30 days. It appears, however, that this promise was reduced to writing, and when offered in evidence showed that it was conditional. The sinking of the well was to be commenced within that time in the event another well then being sunk- by the Palmetto Oil Company on an adjacent tract of land proved to be what they called a 50-barrel well. The jury found that this well did not prove to be a 50-barrel well. The only basis then left for an independent consideration to support this contract is the cash payment of $70. It is contended by the appellants that this sum is inadequate, and amounts to no more than a nominal consideration. In determining whether a consideration is sufficient in amount to be classed as adequate and valuable we must look to the subject-matter of the contract and its value to the parties concerned. The value of an exclusive option to explore for and mine oil and gas is governed largely by the prospects of their discovery in the given territory and their worth when discovered. It is easy to imagine territory in which this privilege would be worth much, and other territory in which it would have no practical value. We regard the sum of $70 cash actually paid as a sum sufficient to make the issue of valuable and adequate consideration in this case one of fact to be passed upon by the court or the jury. That issue was not submitted to the jury, nor was its submission requested. While the court did not make any specific findings, we must presume that he decided all controverted issues of fact not submitted to the jury in harmony with the judgment rendered. If this be true, then the court must have found, under the facts of this case, that $70 was a valuable and adequate consideration for the option granted. It follows, then, that the unilateral character of the contract upon its face furnishes no ground for its cancellation.

But it may be contended, as in the case of Owens v. Corsicana Petroleum Co., 169 S. W. 192, cited by the appellants, that the $70 formed the consideration for the priviilege extending over the first period of six months, and was exhausted by the expiration of that term. The contract stipulates that unless the lessees began drilling a well within six months from’ its date their lease should expire, but it also gave the lessees the right of having successive extensions upon the payment of stipulated sums of money. We must view the contract in its entirety. The $70 paid in advance was not only the consideration for the privilege extending over the first term of six months, but for all the rights and privileges, conditional and unconditional, which the contract conferred, including the conditional right of claiming an extension of their option. The payment of that sum was what induced the execution of the contract, and was the consideration for all the rights and privileges therein granted. It is therefore not correct to say that this sum should be treated as a payment of the rental for the first term of six months. When that term expired the lessees could have demanded an extension of time upon a tender of the sum agreed upon. This was a valuable right which emanated from the contract, and for the grant of which the $70 was the consideration.

In response to special issues the jury found that Bell and Evans, the original lessees, acquired the lease for speculative purposes, and that they had no intention of drilling a well on the land of the appellants. It is contended by counsel for appellants that those facts required the entry of a judgment for the cancellation of the lease. They refer to numerous authorities which hold that where it can be shown that the lessees acquired similar rights for such purposes the absence of an intention to develop the land amounted to such a fraud that the lessors would be entitled to a rescission of the contract-. It will be found, however, upon examination, that those authorities involve the interpretation of contracts in which the lessees had obligated themselves to develop the territory covered by their contract.

The state of the evidence in this case was such as to sustain a finding that the contract was executed under circumstances free from fraud, and that all the parties signed it with a fair understanding of its provisions. It gave the lessees the liberty of assigning their rights to third parties. The fact that they acquired the option granted, with no intention of themselves drilling for minerals, but with a view of selling that privilege at a profit, is no ground for cancellation. They had not bound themselves to sink wells, and they violated no agreement by a failure to do so. Whatever rights the original lessees held under this contract passed to their assignees, the oil companies hereinbefore mentioned, who were made parties defendant.

What has been said we think disposes of all the errors assigned except those which challenge the validity of the lease because of the failure of the wife of one of the joint owners of the property to sign the lease. . It is contended that she had a homestead right in the property which could not be divested without her consent. That may be true; but it does not furnish' any reason for canceling a contract which the remaining parties had á right to execute. At most her failure to sign it could only be invoked for the purpose of limiting the rights which the lessees might claim.

The judgment ,of the district court will therefore be affirmed.

On Motion for Rehearing.

Lest some misunderstanding should arise from the language employed relative to the matter of determining the adequacy and character of the consideration upon which this lease is founded, we think it proper to modify some of the expressions used in the original opinion. We do not mean to hold that the consideration must be both valuable and adequate, or that its sufficiency should be measured by the relative value of the property conveyed; nor do we mean to hold that in every case the character and the sufficiency of the consideration should be treated as questions of fact to he passed upon by the jury. We recognize and adhere to the general rule that where the consideration is sufficient to be denominated “valuable” the courts do not concern themselves with the relative value of the properties exchanged. 1 Elliott on Contracts, §§ 209 and 210. This rule, however, is subject to some exceptions, as where the consideration is so grossly out of proportion to the property conveyed as to shock the conscience or to bear upon its face evidences of fraud. 2 Pbmeroy, § 918. .In saying that we regard the sum of $70 cash as sufficient to make the issue of valuable and adequate consideration one of fact to be passed upon by the jury, we were perhaps more liberal than necessary. That liberality, however, was indulged in because the record showed that in this case either the court or the jury had determined those questions in favor of the ap-pellees. Had the question arisen in a different form, and no issue of fact been determined, we might have treated the matter in a different manner.

The motion for a rehearing is overruled.
      &wkey;jFor other oases'see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    THORNTON v. WEAR et al.
    (No. 8807.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 30, 1918.
    Rehearing Denied May 4, 1918.)
    1. Homestead <&wkey;168 — Abandonment.
    Findings that tenant houses were built on homestead property as a solo means of support for the family, and were never intended to be sold, but were to be kept for the use of their children, are consistent with a finding that premises had been abandoned as a homestead, although, under Const, art. 16, § 51, homestead property rented temporarily only does not lose its homestead character.
    2. Homestead <&wkey;181(2, 3) — Abandonment-Renting — Prooe off Abandonment.
    Whether renting of homestead property is temporary is a question of fact to be determined by the physical facts and circumstances, as well as the owner’s testimony, and such physical facts may be of such probative force as to be controlling against the testimony of the owner.
    3. Appeax. and Error &wkey;>930(3) — Findings— Presumptions in Support op Judgment.
    In the absence of any finding by the jury that a homestead was never abandoned, a finding by the court to the contrary must be presumed in support of a judgment of abandonment.
    Appeal from District Court, Tarrant County; R. E. D. Roy, Judge.
    Suit by Mrs. Julia A. Thornton, as independent executrix of the will of John A. Thornton, deceased, and in her individual right, against W. O. Wear and others to enjoin the sale under execution of an alleged homestead. From judgment in her favor for part of the relief asked, plaintiff appeals.
    Affirmed.
    McLean, Scott & McLean, of Ft. Worth, for appellant. J. C. Terrell and Geo. W. Polk, both of Ft. Worth, for appellees.
   DUNKLIN, J.

This suit was instituted by Mrs. Julia A. Thornton as independent executrix of the will of her deceased husband, John A. Thornton, and in her own individual right, to enjoin the sale under execution of the west half of a lot in the city of Ft. Worth, fronting east 100 feet on Adams street and north on Daggett avenue 200 feet, and being 100 by 200 feet in area, upon allegations that the same was exempt from forced sale because it was a part of the homestead of herself and her deceased husband, John A. Thornton, during his lifetime, and has been a part of her homestead ever since his death. The threatened sale of the property was under and by virtue of an execution levied thereon, issued under a judgment recovered against Mrs. Thornton as independent executrix of the last will and testament of her deceased husband; the basis of the judgment being an indebtedness incurred by John A. Thornton, unsecured by any character of lien.

At the time the suit was instituted a temporary writ of injunction was issued restraining the sale pending a hearing of the case on its merits, but on final trial of the merits the writ was dissolved as to all the property covered by the levy, except a narrow strip along its east side upon which is located a buggy shed and servant’s room, and which was decreed to be a part of plaintiff’s homestead, consisting chiefly of the east half of the entire lot, and as to the strip so excepted from the order of dissolution, the temporary injunction was made perpetual. From that judgment plaintiff has appealed.

The trial was before a jury, who returned a verdict in answer to special issues as follows:

“Was the west one-half of the 100' by 200 feet of land upon which plaintiff and her husband lived ever used for the purposes of a garden and other purposes by plaintiff and her husband, and were the other buildings, such as' barns and outhouses on said west one-half of said lot, and were said garden and outhouses, if any, used by plaintiff and her husband as part of their homestead and for homestead purposes prior to the building of the two houses on the west end of said lot? Answer: Tes.
“Is the picket fence between the old house of plaintiff and one of the new houses on the division line between the west 100 feet and said lot and the east 100 feet? Answer: Xes.
“At the time of the levy herein, was the building used by plaintiff and her husband in his lifetime as a coalhouse, servant’s house, etc., located in part on the west 100 feet of said lot, and was said house used by plaintiff when living in the old house for her convenience as part of her homestead? Answer: Tes.
“Did John A. Thornton, when said new houses were built or either of them, intend to use one of them as a place of residence for himself and his family? If yes, which one? Answer: No.
“Did John A. Thornton or Mrs. Thornton ever intend to sell or otherwise permanently dispose of said west 100 feet of said lot, except to save it for their use and as a home for their children after their death? Answer: No.
“Did John A. Thornton or his wife, plaintiff in this suit, have any income or any source of support after building said houses except for rents thereof? Answer: No.
“Did John A. Thornton at the time of his death or has Mrs. Thornton any other property, except the 109 feet by 209 feet of land located on the corner of Daggett and Adams street in the city of Ft. Worth, with improvements thereon? Answer: No.
“Was John A. Thornton solvent or insolvent at the time of his death? Answer: Not solvent.
“Were two dwelling houses erected on the west end of the original 100 by 200 feet owned by John A. Thornton separated from each other by fence, and were they separated by fence from the lot occupied by the said John A. Thornton and Julia A. Thornton on the corner of Daggett avenue and Adams street? Answer: lies.
“What use did'John A. Thornton make of said property and the two houses erected by him on the west part of said property during his lifetime? Answer: Rented for profit.
“What use has his wife made of them since his death? Answer: Rented for profit until deed to her daughters and grandchildren.
“If you find any improvements had been erected on the west part of the 100 by 200 feet, were the same necessary or intended for the convenience of the family? Answer: Were not erected for the convenience of the family.
“Were they rented or leased in order to produce an income or profit for support and maintenance? Answer: Yes.
“Prior to the death of John A. Thornton, deceased, was the house located on the extreme west part of the 100 by 200 feet and fronting north on Daggett avenue ever fenced off from the other part of said 100 by 200 feet rented? Answer: Yes.
“State whether or not the fence and barn as located at the time of the death of John A. Thornton, deceased, on the east of the second or middle house constituted the east line of the middle lot. Answer: No.
“After the erection of the house on the extreme west half of the 100 by 200 feet and the erection of the house east of said west house and fence and west of the fence and barn on the lot occupied by John A. Thornton as his home, did he and wife continue to occupy the property fronting east 100 feet on Adams street and running back west on the south side of Daggett avenue to the fence running north and south through said block as a home, and have they ever occupied any other property as a homestead since the erection of said house? Answer: First, Yes; second, No.”

It thus appears that the property in controversy was originally a part of the homestead of John A. Thornton and wife, and the only real issue remaining was whether or not it was later and before the levy of the execution abandoned by appellant and her husband for that use.

By different assignments appellant insists that the jury found in effect that such abandonment did not occur, and that therefore the trial court erred in not rendering a judgment in her favor perpetually enjoining the sale of all the property in controversy in compliance with her motion for such a judgment. We do not so construe the jury’s findings. Certainly there is an absence of any specific finding to that effect, and none which in our opinion can be construed as substantially of that import. On the contrary, the findings strongly indicate that the property was abandoned for residence homestead purposes. Blum v. Rogers, 78 Tex. 580, 15 S. W. 115; Langston v. Maxey, 74 Tex. 155, 12 S. W. 27.

Appellant and her husband erected and rented the tenant houses upon the property as a means of support for the family, and had no other means of support, but those facts, in connection with the further fact that they never intended to sell it, but intended to keep it for the use of their children after their death, are entirely consistent with an intention never again to use it for residence purposes. Unguestionably it is the law that a temporary renting of property once impressed with residence homestead character does not of itself destroy that status, provided that during the period of such renting the owner has the intention to again use the property for residence purposes. Constitution of Texas, art. 16, § 51; Newton v. Calhoun, 68 Tex. 451, 4 S. W. 645; Rollins v. O’Farrell, 77 Tex. 90, 13 S. W. 1021. If such property is rented, the test whether or not it continues as a part of the homestead is whether such change of use was temporary only with the intention on the part of the owner again to use it for residence purposes after the cessation of such temporary renting.

That is an issue of fact to be determined by all the physical facts and circumstances in evidence in connection with the testimony of the owner if he testifies in favor of the exemption, and such physical facts may be of probative force so strong as to be controlling as against the testimony of the owner supporting his claim of the exemption. Langston v. Maxey, 74 Tex. 155, 12 S. W. 27; Blum v. Rogers, 78 Tex. 530, 15 S. W. 115; Hendrick v. Hendrick, 13 Tex. Civ. App. 49, 34 S. W. 804; Autry v. Reasor, 102 Tex. 128, 108 S. W. 1162, 113 S. W. 748.

In the absence of any finding by the jury that the property was never abandoned for homestead uses, a finding by the court to the contrary must be presumed in support of the judgment, and the facts' recited in the jury’s verdict aside from other evidence were ample to support the finding.

From the foregoing conclusions it follows that all assignments of error must be overruled, and the judgment of the trial court must be affirmed; and it is so ordered.

Affirmed.
      <@s»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes