Opinion
No. 4287.
February 10, 1933. Rehearing Denied February 23, 1933.
Appeal from District Court, Gregg County; Will C. Hurst, Judge.
Suit by D. P. Dean and another against H. H. Coffield, in which defendant brought a cross-action against plaintiffs and against Lafayette Jones or in the alternative against A. H. Teat. From a judgment for defendant, plaintiffs and Lafayette Jones appeal.
Affirmed in part, reversed in part, and rendered.
The suit is by the appellants D. P. Dean and Albert Adkisson, copartners, against H. H. Coffield to try the title and to remove the cloud cast upon the title to one-half of an undivided one-eighth oil royalty interest under a 54 1/2-acre tract in the G. W. Hooper survey in Gregg county. H. H. Coffield answered by general denial, plea of not guilty, and specially that he acquired and held the title and right to an undivided one-eighth oil royalty interest under the 54 1/2-acres through instruments by and under Lafayette Jones, the grantor of the plaintiffs, under circumstances, of which the plaintiffs had notice, constituting his title the superior one, and constituting the claim and rights of the plaintiffs to one-half of an undivided one-eighth royalty interest inferior and subject to the title and rights of the defendants. The defendant H. H. Coffield further, by cross-action against the plaintiffs and against Lafayette Jones, who was made a party, sought to have his title to the oil royalty decreed to be superior and to have the cloud removed from his title, or, in the alternative, prayed that he have judgment over and against his warrantor of title, A. H. Teat.
After hearing the evidence in the case, the court peremptorily instructed the jury to return a verdict in favor of the defendant H. H. Coffield, and upon such verdict entered judgment adjudging to H. H. Coffield title to the undivided one-eighth oil royalty in controversy. The plaintiffs and Lafayette Jones each have appealed and seek to have revised the ruling of the court. The question on appeal is the simple one of whether or not there arises in the evidence an issue of fact for determination by the jury. If so, there is reversible error; otherwise the judgment should be affirmed.
The evidence herein set out outlines the controversy. A. H. Teat, residing in Longview and engaged in buying and selling leases and oil royalties, went to Fort Worth, Tex., in the view of buying from Lafayette Jones the undivided one-eighth oil royalty interest under a 54 1/2-acre tract in the G. W. Hooper survey in Gregg county. They had previously talked about a sale of the oil royalty. Lafayette Jones formerly lived on the land, and about a year previous to the present time had moved to Fort Worth and was there employed to do service in a hotel. There does not appear any dispute about the fact that Lafayette Jones was the owner by inheritance through his deceased mother of an undivided one-eighth oil royalty interest in the 54 1/2-acre tract. After Lafayette Jones and A. H. Teat had reached an agreement of bargain and sale, Lafayette Jones executed and duly acknowledged a formal deed of date March 9, 1931, to "A. H. Teat, Trustee," for "the sum of $125.00 cash in hand paid" the following, namely:
"An undivided interest in and to 1/8 of all the gas and other minerals in and under and that may be produced from the following land:" (Here follows description) etc.
This deed was delivered to A. H. Teat, and he in turn delivered to Lafayette Jones the following draft:
"The First National Bank.
"Longview, Texas, March 9, 1931.
"On the approval and acceptance of title Pay to the Order of Lafayette Jones $125.00 One Hundred and Twenty Five and No/100 Dollars, and charge to the account of:
"To First National Bank, Longview Texas.
"A. H. Teat."
The words "on approval and acceptance of title" were placed in the draft in order to enable A. H. Teat "to look in the records to see if he (Jones) owned that amount of royalty." It was contemplated that it would take "about seven or eight or ten days" time within which "to have the title checked in Gregg county at that time" because of the unusually crowded conditions existing in the county clerk's office. The draft was indorsed on the back by Lafayette Jones, and was deposited in the First National Bank of Fort Worth. The First National Bank of Fort Worth promptly forwarded the draft by mail to the First National Bank of Longview, which last bank, after receiving the draft, returned it to the Fort Worth bank. As marked by the Fort Worth bank on its record slip, the draft was "Returned March 12, 1931, unpaid." It does not appear in the evidence that the draft was at the time presented to A. H. Teat for payment. He testified that he "did not know that it was returned unpaid to the First National Bank of Fort Worth on March 12, 1931." As a fact, A. H. Teat at that time had no account with the First National Bank of Longview, but he intended to take up the draft by payment with money he had in his possession. Upon returning to Longview from Fort Worth, A. H. Teat, as he says, "Looked into the records," and, being satisfied about the title to the land, then filed for record in the county clerk's office the mineral deed to him from Lafayette Jones. The deed was filed for record on "March 11, 1931," and was duly recorded by the county clerk. Thereafter, by deed of date "April 25, 1931," A. H. Teat, trustee. conveyed the undivided one-eighth oil royalty interest in the 54 1/2 acres to W. W. Hawkins, and W. W. Hawkins by his deed of date "April 27, 1931," conveyed the one-eighth oil royalty to H. H. Coffield. Mr. Hawkins was acting as agent in the matter for Mr. Coffield, and the consideration for the conveyance, which was $1,300 cash, was paid direct to A. H. Teat.
It was proven that, at a time after the draft executed by A. H. Teat in favor of Lafayette Jones was returned by the First National Bank of Longview, Lafayette Jones directed the First National Bank of Fort Worth to send the draft back to the First National Bank of Longview, and the bank did as directed to be done. The record slip of the Fort Worth bank shows the draft was returned to the Longview bank on "3/21/31" and with instruction, "Please hold this item few days and try to communicate with Mr. Teat." As far as shown by the evidence, A. H. Teat on April 25, 1931, paid to the First National Bank of Longview the amount of the draft, and the bank at once remitted the amount to the First National Bank of Fort Worth, which received it on the date of "April 27, 1931." The First National Bank of Fort Worth on receipt of this remittance then drew its cashier's check of date April 27, 1931, for the $125, payable to the order of Lafayette Jones. As far as shown by the evidence, Lafayette Jones indorsed his name on the back of the cashier's check, and the sum of money called for in the check was on "May 22, 1931," placed to his credit in his checking account in the First National Bank of Fort Worth.
It was proven that on March 9, 1931, the date of the conveyance to A. H. Teat, Lafayette Jones was a person under the age of 21 years, and very nearly approaching the age of 20 years. Upon application made by him to the district court, and on March 24, 1931, a decree was entered removing the contractual disabilities which nonage entails. On the next day of March 25, 1931, Lafayette Jones, joined by his wife, executed to D. P. Dean a lease upon the tract of land for production of oil, and also executed to Albert Adkisson a mineral deed conveying one-half of an undivided one-eighth oil royalty interest. At the same time an agreement was entered into by Lafayette Jones and D. P. Dean, termed an "escrow agreement," whereby the lease and the mineral deed and the consideration of $200 to be paid for the mineral deed, and $600 less $100 to be paid for the lease, were to be placed in and held by the Continental Bank of Fort Worth for the specified time for approval of title by attorneys. The lessee was given the option to reject the title and receive from the Continental Bank the sum deposited if the title was unsatisfactory to the lessee's attorneys. One hundred dollars cash was paid to Lafayette Jones, according to the recital in the escrow, on the lease, but in fact that sum was paid cash to him on the mineral deed conveying the oil royalty interest. Adkisson and Dean were copartners, and were so dealing in the matter. Dean and Adkisson accepted the title to the property leased and conveyed. All the money placed in escrow by Dean and Adkisson was on April 29, 1931, paid over to Lafayette Jones, who received and appropriated the same. The evidence affirmatively shows, and without dispute, that Dean and Adkisson each knew of the conveyance previously made by Lafayette Jones to A. H. Teat, trustee, and by A. H. Teat to W. W. Hawkins at the time and before their agreement and lease and deed were made. Dean and Adkisson, as it appears, procured Lafayette Jones, and he consented thereto, to apply to the district court in proceedings to remove his disabilities as a minor, and paid the costs thereof for him, in the purpose of thereafter leasing the land and buying and selling the oil royalty.
It was shown by A. H. Teat that, at the time he approached Lafayette Jones for the sale of the oil royalty, Lafayette Jones represented himself to be over 21 years of age at that time. There was offered in evidence circumstances going to show that A. H. Teat relied on the fact being true that Lafayette Jones was past the age of 21 on March 9, 1931. Lafayette Jones denied that he stated and represented to A. H. Teat that he was 21 years old and over.
W. H. Sanford and Conan Cantwell, both of Longview, for appellants.
C. F. Richards, of Lockhart, Banks McLemore, of Longview, and E. A. Camp, of Rockdale, for appellees.
The contention of the appellants Dean and Adkisson should, it is believed, be sustained that the agreement of sale and absolute deed to an interest in the oil royalty made to them by Lafayette Jones after the removal by judicial decree of the contractual disabilities which nonage entails constitutes disaffirmance of the deed to the interest in the oil royalty made by Lafayette Jones during his infancy to A. H. Teat.
It affirmatively appears from the evidence that A. H. Teat made acceptance of the title to the oil royalty conveyed to him by Lafayette Jones by the deed of date March 9, 1931, through the act of filing the deed on March 11, 1931, for registration in the office of the county clerk. As a legal consequence of the acceptance of the title to the oil royalty conveyed, the draft which had been delivered to and accepted by Lafayette Jones "payable on the approval and acceptance of title" became immediately payable and negotiable and a binding obligation upon A. H. Teat. A. H. Teat could not thereafter demand the return of nor recall the draft signed and delivered by him, although it was not actually paid on the date of March 12, 1931. Lafayette Jones, when the draft was returned unpaid on March 12, 1931, did not himself return or offer to return such draft to A. H. Teat nor direct the First National Bank of Fort Worth, his collecting agent, to do so. On the contrary, it affirmatively appears that Lafayette Jones retained and continued to hold the draft after March 12, 1931, with the collecting bank, and directed its return for another effort at its collection from A. H. Teat through the First National Bank of Longview. All these acts stated above occurred during the period of time that Lafayette Jones was a minor, as affirmatively appeared he was, and before the date of the judicial decree of removal of his disabilities as a minor. Lafayette Jones, however, on March 25, 1931, and after the date of the entry of the final decree of the removal of his disabilities as a minor, made, in point of undisputed fact, a formal executory agreement as to lease of the land for oil production and of absolute sale of a portion of the oil royalty to Dean and Adkisson. There was deposited in escrow an absolute deed to an undivided one-half of his interest in the one-eighth of the oil royalty executed and acknowledged by Lafayette Jones and his wife and dated March 25, 1931. This deed was delivered to appellant Adkisson and by him filed for record in the office of the county clerk on April 30, 1931. The purchase money provided for in escrow was on April 29, 1931, paid over to and received and kept by Lafayette Jones. Dean and Adkisson had full actual notice at the time of the execution of the agreement and of the deed of the sale and conveyance to A. H. Teat.
The removal on March 24, 1931, by judicial decree of the contractual disabilities which nonage entails fully invested Lafayette Jones with the power and capacity and subjected him to all the obligations which he would have or be subjected to if he had actually reached the age of 21 years. Article 5921, R.S.; Brown v. Wheelock, 75 Tex. 385, 12 S.W. 111, 841. Immediately upon being placed in the status of a person of full age and with legal capacity to act as a free agent, as is the legal effect of the judicial decree, Lafayette Jones made a sale and deed of absolute conveyance of a portion of the oil royalty interest to Dean and Adkisson, who were third persons not in privity of relation in any wise of the first grantee, A. H. Teat. The instrument conveying the fixed interest of one-sixteenth of the oil royalty interest is inconsistent with the former instrument conveying a fixed interest of one-eighth in the same royalty interest. If the conveyance of the entire one-eighth interest must stand, the conveyance of the one-sixteenth interest could not stand. The last conveyance of necessity destroys the force and effect of the first conveyance so far as to make it not possible for the two to stand together and both be given effect according to their terms. The absolute sale and conveyance of the same land or interest in land to a third person, not within privity of relation with the first grantee, is a well-recognized method, and the settled doctrine in this state, of giving expression to an unequivocal intent of disaffirmance of an infant's conveyance. Searcy v. Hunter, 81 Tex. 644, 17 S.W. 372, 26 Am.St.Rep. 837; 1 Elliott on Contracts, § 345, p. 560; 31 C.J. § 70, p. 1020, § 80, p. 1026. The effect and result of the disaffirmance of a conveyance of land entered into during infancy annuls and renders it thereafter void on both sides ab initio. 23 Tex.Jur. § 48, p. 742; 1 Elliott on Contracts, § 352, p. 569; 31 C.J. § 167, p. 1071; Gage v. Menczer (Tex.Civ.App.) 144 S.W. 717. The parties are in the same status in which they would have been if the contract had not been made. As a valid disaffirmance cannot be retracted without the assent of the other party, it follows that the deed to Dean and Adkisson is effectual and must prevail in this case. As noted by the cases above cited, and declared in other cases, whether the deed amounts to a disaffirmance becomes a question, not for determination by the jury, but, of pure law for the determination of the court. Peterson v. Laik, 24 Mo. 541, 69 Am.Dec. 441, and other cases.
The appellees urge that it should be deemed conclusively established in this record that Lafayette Jones was over 21 years old at and before March 9, 1931, the beginning of this controversy. That contention is based upon the recitals in a certain judgment of the district court rendered on October 22, 1931, in an action in trespass to try title to mineral interests in a certain tract of land. Neither the parties nor the mineral interest was the same as now in controversy. The judgment in that case adjudged title to the property in suit to the plaintiff against Lafayette Jones and another defendant claiming under Lafayette Jones. It appears in that case that Lafayette Jones pleaded minority at the date the deed was made. The judgment sets out the answer of the jury upon the only special issue submitted in that case, which answer was that "Lafayette Jones was twenty-one years old at the date of the deed to the plaintiff." Under the well-settled rules, that judgment cannot be introduced in evidence to establish the facts on which it was rendered. Neither can that judgment, it is concluded, be made to constitute an estoppel in the present suit. The judgment in legal effect was purely a judgment in personam and not in rem. A judgment in personam differs from a judgment in rem in that a judgment in rem is a solemn declaration of the status of some person or thing. As by way of analogy, a judgment of naturalization is a judgment in rem establishing the status of the person naturalized to be that of a citizen of the United States. Such judgment in rem may be offered in evidence as establishing the status of a person. Some of the cases cited by the appellees involves judgment in rem. It is further claimed by the appellees that estoppel may be predicated by A. H. Teat upon misstatement by Lafayette Jones as to his age at the time the agreement of the sale was entered into. Although there may be some evidence to show that Lafayette Jones stated to A. H. Teat that he was 21 years old, and that A. H. Teat relied upon such statement, yet it is beyond question in the record that A. H. Teat had knowledge that Lafayette Jones was in fact a minor and was so claiming and had his disabilities removed by judicial decree before A. H. Teat paid the draft given for the purchase money and before A. H. Teat conveyed the property to W. W. Hawkins.
It is further urged by the appellees that, although the disaffirmance might be deemed valid and effectual to vest in Dean and Adkisson title to the one-sixteenth portion of the oil royalty interest conveyed to them, yet, in view of the attending circumstances, the appellee A. H. Teat and his vendee, H. H. Coffield, have remedy and rights that may consistently stand and be urged in and to the remaining undivided one-half of the one-eighth oil royalty against Lafayette Jones. After the decree removing the disabilities of minority of Lafayette Jones and after the agreement of sale to Dean and Adkisson, the following transaction occurred: That A. H. Teat paid the draft signed by him and the money so collected was remitted to the Fort Worth bank. That the Fort Worth bank promptly issued its cashier's check for the amount of the remittance and delivered that cashier's check to Lafayette Jones, who indorsed his name on the back of the check and deposited it with the Fort Worth bank. Lafayette Jones admits his indorsement of the cashier's check and does not deny that he knew that A. H. Teat had remitted that sum of money to the bank on the returned draft on the Longview bank and that the money was to be paid to him. The only reasonable conclusion in the evidence, and it hardly admits of doubt, is that the money represented by the cashier's check was received and placed by Lafayette Jones to his credit in his regular checking account in the Fort Worth bank; that Lafayette Jones knew at the time that the money was remitted by A. H. Teat in payment of the purchase price of the royalty interest previously deeded to him. If Lafayette Jones did not so know, he was culpably negligent in failing to acquire the knowledge. In receiving and appropriating the delayed remittance for the payment of the purchase price of the royalty interest, Lafayette Jones evidently intended to ratify and to acquiesce and to withdraw avoidance of the transaction in part and at least as far as concerns the interest in the royalty remaining vested in him at the time after deducting the one-sixteenth interest passed by conveyance to Dean and Adkisson. If such was not the reasonable import of the act of accepting the delayed payment, then for what purpose did Lafayette Jones take and appropriate the purchase price of the oil royalty? Certainly, in the circumstances, an intention to commit a fraud upon A. H. Teat by taking and accepting the delayed payment could not be imputed to Lafayette Jones. In the circumstances, estoppel, it is concluded, would operate and be applicable against Lafayette Jones from asserting avoidance or invalidity of right and interest of A. H. Teat, and his vendee, H. H. Coffield, in so far and to the extent of the one-sixteenth interest in the oil royalty remaining in excess of the one-sixteenth interest passed to Dean and Adkisson.
The judgment of the district court is reversed and here rendered in favor of Dean and Adkisson against H. H. Coffield for the one-sixteenth interest in the oil royalty conveyed to them by Lafayette Jones, and in favor of H. H. Coffield against Lafayette Jones as to one-sixteenth interest in the oil royalty; that judgment be rendered in favor of H. H. Coffield against A. H. Teat as his warrantor in title in the sum of $650, being one-half the price of the oil royalty conveyed; that the judgment of the trial court as to Lafayette Jones be in all things affirmed. All the costs of the trial court incurred by Dean and Adkisson and one-half the costs of appeal will be taxed against H. H. Coffield, and all the remaining costs of the trial court and one-half the costs of the appeal will be taxed jointly and severally against A. H. Teat and Lafayette Jones.