Opinion
Applications Nos. 24107 and 24108.
Decided April 19, 1939.
Judgments — Oil and Gas.
Where trial court's judgment awarded to certain cross plaintiffs the overriding royalties or oil payments to be paid and delivered out of the seven-eighths working interest held by the oil company, the judgment, by necessary implication, denied to all other parties, any ownership of or right to the said overriding royalties or oil payments.
Error to the Court of Civil Appeal for the Ninth District, in an appeal from Chambers County.
Suit in trespass to try title by Roedenbeck Farms, incorporated, against J. E. Broussard and others to recover title and possession of 640 acres of land in Chambers County, Texas. Defendants answered by plea of not guilty and by special pleas of the several statutes of limitation. The real purpose of the suit was to annul and cancel the sale as made by a trustee to Broussard, on the 5th day of May 1931. The trial court entered judgment against the plaintiffs to the effect that they take nothing as against defendants in so far as they held under J. E. Broussard. This judgment was affirmed by the Court of Civil Appeals ( 124 S.W.2d 929). Roedenbeck Farms, Inc., and H. Merlyn Christie and others filed separate applications for writs of error.
Writs refused.
Fulbright, Crooker Freeman, Kemper, Hicks Cramer, C. A. Leddy, and F. Warren Hicks, all of Houston, for plaintiffs in error, Roedenbeck Farms, Inc., et al.
Frank A. Liddell, Cole, Patterson Cole, Ewing Werlein, Edward S. Boyles, J. R. Hill, P. Harvey, Lewis Dickson, Cecil N. Cook, John C. Dawson, and Kayser, Liddell, Benbow Butler, all of Houston, R. E. Schneider, Jr., of George West, E. H. Cain, of Anahuac, and LeRoy McCall, of Beaumont, for plaintiffs in error, H. Merlyn Cristie et al.
E. B. Pickett, Jr., of Liberty, Guy C. Jackson, Jr., and A. W. Marshall, both of Anahuac, Felix A. Raymer, of Houston, and Orgain, Carroll Bell, W. D. Gordon, and E. E. Easterling, all of Beaumont, for defendants in error Broussard, et al.
The above numbered and styled applications for writs of error are refused. It is deemed advisable, in view of the fact that the question presented by the twenty-first assignment of error in Application No. 24,108 by H. Merlyn Cristie, et al., is not discussed in the opinion of the Court of Civil Appeals, to state that the said twenty-first assignment of error is not sustained, because it is the opinion of the court that the trial court's judgment as a whole is correctly construed as adjudging to the cross plaintiffs H. Merlyn Cristie, et al., the title and ownership of the overriding royalties or oil payments described in two assignments to Humble Oil Refining Company, the first from Clayton N. Smith and F. L. Luckel, dated March 16, 1935, and the second from Clayton N. Smith, dated April 18, 1935, and more fully described in the trial court's judgment, against all of the cross defendants named in the cross action of the said H. Merlyn Cristie, et al., including J. E. Broussard and the cross defendants claiming under him.
The overriding royalties or oil payments are by the trial court's judgment awarded to the said cross plaintiffs and it is in substance adjudged thereby that they shall be paid and delivered to the said parties out of the seven-eighths working interest held by Humble Oil Refining Company. These provisions of the judgment by necessary implication deny to all of the parties, other than those to whom they are awarded, any ownership of or right to the said overriding royalties or oil payments. Whitmire v. Powell, 103 Tex. 232, 125 S.W. 889; Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161; De Zavala v. Scanlan, (Com. App.) 65 S.W.2d 489.
Opinion adopted by the Supreme Court April 19, 1939.