Opinion
No. 4225.
July 15, 1932. Rehearing Denied September 1, 1932.
Appeal from District Court, Rusk County; R. T. Brown, Judge.
Suit by Leslie A. Laird against S. S. Laird and wife and others. From a judgment for plaintiff, defendant S. S. Laird and wife appeal.
Reversed and rendered.
By a general warranty deed (absolute in form) dated May 9, 1923, appellees Leslie A. Laird and his wife, Sallie Laird, for a consideration of $900 then paid to them, conveyed to John H. Laird an undivided one-ninth interest in described land in Rusk county owned by appellee as a child and heir of D. H. Laird and his wife, Josephine Laird, both then deceased. At the same time appellee and said John H. Laird executed an instrument as follows:
"Mart, Texas, May 9, 1923.
"Know all men by these presents, that whereas L. A. Laird and wife of Mart, McLennan County, Texas, have this day sold to John H. Laird, of Kilgore, Texas, their undivided interest in estate of D. H. and Josephine Laird, of Rusk County, Texas, consisting of about 389 acres of land out of the Isaac Ruddle Survey in said Rusk County, Texas, and the said L. A. Laird in said conveyance, or according to said trade, retains the mineral rights in 40 acres of said tract of land — the same to be leased to the said L. A. Laird when the same, has been surveyed, and other matters pertaining to the said transfer have been completed, and said lease to be for a term of 15 years, and the said John H. Laird to retain a 1/8 royalty in the said 40 acres, when the said lease is made effective.
"Witness our hands this 9 day of May, 1923. This contract to be binding on our heirs or assigns.
"L. A. Laird
"John H. Laird."
By a general warranty deed dated said May 9, 1923, John H. Laird conveyed the undivided interest passed to him by said deed from appellee and his wife, and referred to in the instrument set out above, to appellant S. S. Laird, who, on September 29, 1930, executed an oil and gas lease conveying 230 acres of the land to Ed W. Bateman, trustee, and January 1, 1931, executed an oil and gas lease conveying seventy acres of the land to Warner-Quinlan Company. January 23, 1931, the oil and gas lease to Bateman, trustee, was transferred by him to the Humble Oil Refining Company, and March 25, 1931, the oil and gas lease to Warner-Quinlan Company was transferred by that company to the Houston Oil Company of Texas. This suit was by appellee as plaintiff against appellant S. S. Laird and said Humble Oil Refining Company and said Houston Oil Company of Texas as defendants. It was to recover the title and possession of an undivided interest of forty acres in the land leased by appellant to Bateman, trustee, and the land leased by appellant to Warner-Quinlan Company. The controversy at the trial was as to the meaning and legal effect of the instrument dated May 9, 1923, executed by appellee and John H. Laird, hereinbefore set out. Special issues as follows were submitted to the jury:
1. "Do you find that at the time L. A. Laird sold his interest in the land of his father and mother to his brother, John Henry Laird, that it was then and there understood and agreed between them that L. A. Laird should retain some rights in the property?" Answer: "Yes."
2. "What do you find the rights retained by L. A. Laird to be, if anything?" Answer: "The rights retained by the plaintiff (L. A. Laird) are that he have 1/9 of lease paid or to be paid by Warner-Quinlan Oil Company throughout and recommend to the court that if in his opinion plaintiff have royalty that he grant and designate amount of such royalty to plaintiff."
3. "Do you find that the defendant S. S. Laird, at the time of the execution and delivery of the deed from J. H. Laird to him, knew or could have known by the exercise of ordinary inquiry, of any rights retained, if any, by L. A. Laird to John Henry Laird?" Answer: "Yes."
4. "Do you find that at the time John Henry Laird purchased the property from L. A. Laird that he was buying for himself or for S. S. Laird?" Answer: "S. S. Laird."
The judgment was as follows: 1. That appellee recover of appellant and his wife "the title and possession of the minerals in and under forty (40) acres undivided interest in" the land, describing it by metes and bounds, 2. That appellee recover of appellant "the sum of $4,575.14 damages for the oil removed from the premises owned by the plaintiff prior to October 31, 1931." 3. That appellee "take nothing of the Humble Oil Refining Company and Houston Oil Company of Texas for oil removed from the aforesaid premises prior to October 31, 1931, and that his recovery of the minerals under said land shall be subject to the terms and conditions of the leases now held by said oil companies on said premises." 4. That appellee recover of appellant and his wife Maud Laird, the Humble Oil Refining Company and Houston Oil Company of Texas "a 4/302.9 portion or .132056% of any and all sums of money and/or oil, gas and other minerals which said oil companies have contracted to pay to the defendant S. S. Laird and/or the owner of the minerals under said 302.9 acre tract of land under the terms of the leases held by said oil companies on said land." The appeal was prosecuted by S. S. Laird and his wife alone against L. A. Laird.
Smith West, of Henderson, and R. E. Seagler and Williams, Lee, Hill, Sears Kennerly, all of Houston, for appellants.
Sewell, Taylor, Morris Garwood, of Houston, and Futch Weldon, of Henderson, for appellee.
The deed referred to in the statement above and the instrument set out in full in said statement were executed by the parties thereto at one and the same time, and were intended to evidence the transaction between them now in controversy here. Hence the two instruments should be treated as one in determining rights conferred and obligations imposed upon said parties. Appellants' contention is that so treating the instruments, it appeared therefrom as a matter of law that an enforceable obligation in appellee's favor was not imposed upon John H. Laird nor upon them as his vendee.
We think the contention should be sustained. As we construe the language used by the parties, it is plain that the effect of the instruments was to pass the legal title to appellee's interest in the land, including the minerals, to John H. Laird, charged with a right in appellee to have his grantee, at some time in the future not specified, to convey to him a leasehold interest, commencing at a date not specified, for fifteen years in seven-eighths of the minerals. Was the right in appellee enforceable? Appellant insists it was not, because of the provision in the statute of frauds (article 3995, R.S. 1925) that "no action [quoting] shall be brought in any court * * * upon any contract for the sale of real estate or the lease thereof for a longer term than one year," unless the contract or some memorandum thereof was "in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized."
To comply with the requirement of the statute, a writing must contain the terms of the contract, and when it does not do so, or "shows expressly or inferentially that there are terms which it either does not state or does not clearly and sufficiently state" (27 C.J. p. 227, § 334), it is within the inhibition in the statute and not enforceable. See Cantrell v. Garrard (Tex.Com.App.) 240 S.W. 533, and 27 C.J. p. 279, § 336, where it is said: "A written agreement for a lease, or memorandum thereof, must state the conditions upon which the lease is to be executed, and the terms which it is to contain. It must show the commencement and duration of the term of the lease."
It will be noted that while the time of the duration of the lease was specified, the time when it should commence was not. It will be noted, further, that it appeared from the face of the contract that it was subject to terms not only not clearly stated but not stated at all. Therefore it is plain enough, we think, the contract was not one on which appellant could maintain an action for either specific performance or for damages.
Appellee's contention to the contrary is on the theory that the real title to the minerals remained in him and did not pass to John H. Laird; or, if the title did pass to said John H. Laird and from him to appellant S. S. Laird, they held same in trust for him (appellee). We do not think the contention is sustainable on either of the grounds stated. Repeating, we think the plain effect of the instruments was to presently pass the title to John H. Laird and not to leave same in appellee until the "lease was made effective." In support of the other ground of the contention it is argued that appellant S. S. Laird holding title, it is asserted, to an interest in the minerals as trustee for appellee, violated the trust when he conveyed to Bateman, trustee, and Warner-Quinlan Company, as shown in the statement above. It is insisted that Bateman and said Warner-Quinlan Company were in the attitude of innocent purchasers, so that the trust could not be enforced against them, and that appellants therefore were liable to appellee as determined by the trial court. But, as we have seen, as we view the matter it not only did not appear that John H. Laird and S. S. Laird, respectively, held the title to the minerals in trust for appellee, but, on the contrary, it appeared that they took and held the absolute title to the land.
The judgment of the court below will be reversed, and judgment will be here rendered that appellee take nothing by his suit against appellants.