Opinion
No. 4172.
April 6, 1932. Rehearing Denied April 21, 1932.
Appeal from District Court, Gregg County; E. M. Dodson, Judge.
Action by Taylor Anderson and others against O. H. Grissom and others. From a judgment for plaintiffs, named defendant appeals.
Affirmed.
This is an action in trespass to try title to an undivided one-fourth interest in 62 1/2 acres of land of the John Ruddle survey in Gregg county, Tex. The action was brought by Taylor Anderson and wife, Frank Anderson and wife, B. H. Thacker, J. H. Timmons, and C. P. Haynes, against O. T. Welch, O. H. Grissom, and Fred J. Adams. The defendants Welch and Grissom answered by plea of not guilty and specially pleading a lease executed to O. T. Welch by the Andersons, and asked in the alternative that if the lease be held ineffective for recovery of damages from the Andersons. The defendant F. J. Adams answered by plea of not guilty and setting up a lease by the Andersons to Welch and the assignment of it to O. H. Grissom and by O. H. Grissom to the defendant Adams of a specific portion of the south one-half of the land; and further set up estoppel by reason of recitals and declarations made in the leases; also setting up warranty of title given by O. H. Grissom. There was a trial of the case before the court without a jury, and in keeping with its findings of fact, the court entered judgment for the plaintiffs as against all the defendants, and in favor of the defendant Fred J. Adams on his prayer that his interest be set apart to him in the south onehalf of the tract of land. The defendant O. H. Grissom excepted to the judgment and has timely filed an appeal bond.
The facts of the case are:
On August 20, 1894, Jennie Anderson acquired a tract of 62 1/2 acres of land by deed which was duly recorded. She was living on the land as a homestead to the time of her death. She died about 1910, leaving eight children. It was agreed that she was the common source of title in this case. The eight children of Jennie Anderson inherited from her the 62 1/2 acres of land in suit. These eight children have continued to be the joint owners of this land. Two of the children, Frank and Taylor Anderson, and their wives and families, have continuously made this land their home, using and occupying the same, and were living on it and using it as their home up to the time of the trial of this suit, which was on July 20, 1931.
On December 30, 1930, these eight children above mentioned, for a cash consideration then paid, executed and delivered to O. T. Welch a lease on the land for the production of oil and gas and other minerals. This lease was filed for record January 24, 1931. On January 17, 1931, O. T. Welch duly assigned the lease to O. H. Grissom, the appellant in this suit. On January 29, 1931, O. H. Grissom by conveyance containing covenants of warranty assigned and conveyed to Fred J. Adams a lease on the south one-half of the land. The wives of Frank and Taylor Anderson did not sign the lease to O. T. Welch. Each of them was informed that the lease had been made by their husbands and each of them would have signed the lease if it had been presented to them for their signatures. Thereafter, on February 25, 1931, Frank Anderson and his wife, Mattie Anderson, executed and duly acknowledged and delivered to Joe Bender a mineral deed conveying an undivided one-fourth of their one-eighth interest in the minerals under this land. In this conveyance appear the following recitals: "Said land being now under an oil and gas lease, executed in favor of O. T. Welch, it is understood and agreed that this sale is made subject to the terms of said lease but covers and includes one-fourth of their one-eighth of all the oil royalty and gas rentals or royalty due to be paid under the terms of said lease. It is understood and agreed that one-fourth of their one-eighth of the money rentals which may be paid to extend the terms in which a well may be begun under the terms of said lease is to be paid to the grantee."
Taylor Anderson and his wife, Ada, on March 10, 1931, executed a deed to Potts and Whatley, conveying a designated portion of the oil and gas in place under the 62 1/2 acres of land. This conveyance contained a rental identical with that contained in the deed of Frank Anderson and wife to Joe Bender which has just been quoted. On April 9, 1931, Taylor and Frank Anderson and their wives, together with all the other joint owners of this land, executed, acknowledged, and delivered to W. D. Stone a mineral conveyance of an undivided 11/272 interest to the minerals in the land. In this conveyance all the grantors made the same reference and recital as above referred to. Again, on April 15, 1931, Taylor Anderson and his wife, Ada, and on April 16, 1931, Frank Anderson and his wife, Mattie, sold and conveyed specified parts of their mineral interest in this land. In each of these conveyances the same recitals appear as above stated.
It appears that on March 11, 1931, Taylor and Frank Anderson, joined by their wives, executed an oil and gas lease to B. H. Thacker, J. H. Timmons, and C. P. Haynes for the purpose of production of oil and gas. No consideration, as appears, was paid for this lease. At the same date, though, Frank and Taylor Anderson, joined by their wives, duly executed and acknowledged power of attorney to B. H. Thacker, J. H. Timmons, and C. P. Haynes, coupled with an interest of one-half of the property.
We quote the following finding as made by the trial court: "Taylor Anderson and wife, Ada Anderson, on and prior to December 30, 1930, were living on a part of the 62 1/2 acres of land, using the same as their home. That on and prior to said time Frank Anderson and wife, Mattie Anderson, were living on a part of said land, using same as their home. That these two parties with their wives were in possession of all the 62 1/2 acres of land and continued to live on same up to the trial of this suit." This stated finding appears with ample evidence to support it and is here adopted by this court. There was not in point of fact, as shown by the evidence, at the time of this suit nor at the time of the trial, any acquisition or intention or effort at acquisition by Taylor and Frank Anderson or either of them of another homestead.
The court made the following conclusions of law, as far as need be here set out:
"1. The 62 1/2 acres in controversy being at the time of the execution of the lease to O. T. Welch the homestead of each Taylor Anderson and wife and Frank Anderson and wife, the lease to O. T. Welch was void so far as to the one-fourth interest owned by Frank and Taylor Anderson in said land.
"2. The subsequent execution of the mineral deeds by Frank and Taylor Anderson, which were joined in by their wives, and which stated that same were subject to the O. T. Welch lease, was not a sufficient ratification of the Welch lease to make same valid, in view of the continued open and notorious possession and occupancy of the land as homestead each by Frank and Taylor Anderson and their wives.
"3. The provisions of the mineral deeds executed by Frank and Taylor Anderson to Joe Bender and to Potts and Whatley providing that said mineral deeds are subject to the O. T. Welch lease, and in case the O. T. Welch lease become void or is cancelled that the grantee should own a like interest in the lease interest in said land conveyed in the royalty interest, operated as a conveyance by Frank and Taylor Anderson to said grantees by said instruments of a 2/32 interest in the oil and gas mineral rights in said 62 1/2 acres.
"This is true by reason of the fact that the O. T. Welch lease was void, and as a consequence, instead of owning a one-fourth of the minerals in said 62 1/2 acres at the time they executed the lease to Thacker, Timmons and Haynes, they owned a 3/16 interest in said mineral rights.
"4. At the time of the execution of the mineral deed to defendant W. D. Northcutt, Jr., Frank and Taylor Anderson only owned 3/128 interest in the mineral rights in said 62 1/2 acres, consequently Northcutt's recovery herein is limited to said amount.
"5. As defendant O. H. Grissom conveyed to defendant Fred J. Adams a specific part of said 62 1/2 acres, to-wit: The South one-half of said tract, and as all parts of said land are of equal value, defendant Adams is entitled to recover said South one-half and plaintiffs would be required to take the part recovered by them out of the North one-half of said tract."
Carrigan, King Surles, of Longview, C. F. Richards, of Lockhart, and Hart, Patterson Hart, of Austin, for appellant.
Bramlette Meredith and Wm. M. Jones, all of Longview, and Slay Simon, of Fort Worth, for appellees.
There is presented by the appellant the points that in the circumstances the lease to O. T. Welch became valid and operative against the married women (1) through ratification or confirmation of the same by them, and (2) through estoppel by acts on their part. It conclusively appeared in the circumstances that the lease to O. T. Welch covered land that was the homestead of each Frank and Taylor Anderson and it had not been abandoned but was continued to be openly used and occupied as homestead. The wives of Frank and Taylor Anderson did not sign the lease. In such case the lease was, under the well-settled rule in this state, invalid for any purpose as to the wife so long as the homestead was not abandoned and another acquired. Stallings v. Hullum, 89 Tex. 431, 35 S.W. 2; Speer on Marital Rights (Ed. 1916) § 406. It is in case only there be the acquisition of a new homestead that the conveyance could be held operative to vest title. Marler v. Handy, 88 Tex. 421, 31 S.W. 636; and other cases. Although, as claimed by the appellant, the lease was invalid for nonjoinder of the married women, yet it was not so absolutely void as to be incapable of ratification as done. There is doubt of the application in the circumstance. The point made is predicated upon the recitals, as afore set out, in the deeds to the minerals subsequently made which referred to the O. T. Welch lease. The language of the recital in the subsequent deeds to the minerals does not purport to be a clause in the form of a grant or conveyance of title or interest or of control or possession. In such legal effect the recital in view cannot operate as a new grant nor as a subsequent deed made with the wife's joinder in the form prescribed by law. The wife may not affirm or confirm an inoperative grant, as here, except, as has been held, by meeting the statutory requirements. Speer on Marital Rights (1916 Ed.) § 248. In order to have the effect of subsequent assent by the wife, a conveyance of the homestead must be made, signed, and acknowledged by her, with the husband's joinder, in the form prescribed by law. Article 1300, R.S.; Speer on Marital Rights, § 405. A conveyance of the homestead inoperative because of nonjoinder of the wife cannot, as respects the wife, be corrected by a proceeding in equity.
It is thought the circumstances may not be held as working a ratification or estoppel. In the facts Taylor and Frank Anderson and their wives continued to live up on, use, and enjoy, and continue in possession of, all the land up to the trial of the suit. A married woman is not estopped from asserting her rights to land not conveyed in conformity with the law unless she has been guilty of a positive fraud or some act of suppression which in law would be equivalent thereto. McLaren v. Jones, 89 Tex. 131, 33 S.W. 849; Johnson v. Bryan, 62 Tex. 626; and other cases.
It is believed the trial court has correctly decided the case under the established facts, and the judgment is affirmed.