Opinion
No. A-967.
Decided October 16, 1946. Rehearing overruled December 11, 1946.
Application for writ of error to the Court of Civil Appeals for the Sixth District, in an appeal from Panola County.
This was a suit by Mrs. Della Jinks, a widow joined by her six children, against Fred Whitaker in trespass to try title to cancel certain mineral deeds from plaintiffs to defendant, alleging that at the time of the purported sale defendant was their attorney, representing them in an attempt to clear the title to the land involved in controversy, and for that reason his acts where presumed to be fraudulent. Defendant plead a general denial, not guilty and special averments denying the charges of fraud. Also that he had purchased the leasehold interest before he was employed as attorney; also that the mineral interests were conveyed to him as a fee to represent plaintiffs in the litigation. Judgment for defendant was modified and affirmed by the Court of Civil Appeals, 195 S.W.2d 814, and plaintiffs have brought error to the Supreme Court.
The application for writ of error was refused, no reversible error.
Clyde H. Hall, of Longview, for petitioners.
James and Lee and L.L. James, all of Tyler, for respondent.
The application for writ of error is "Refused, No Reversible Error." Lest the judgments of the trial court and the Court of Civil Appeals be misconstrued, we hold that the "take nothing" judgment of the district court, construed in the light of the pleadings, did not have the effect of vesting title to the surface in the defendant, respondent here. The Court of Civil Appeals, in modifying and affirming the judgment of the district court, did not pass upon the title to the surface estate.
Opinion delivered October 16, 1946.
Rehearing overruled December 11, 1946.