Opinion
No. 3764.
December 22, 1938. Rehearing Denied January 19, 1939.
Appeal from District Court, Brewster County; C. R. Sutton, Judge.
Suit by the Stanolind Oil Gas Company against H. C. La Beff to recover moneys plaintiff was compelled to pay the state. From a judgment for defendant, plaintiff appeals.
Reversed and rendered.
Prior to 1926 the State of Texas sold to the appellee, LaBeff, 640 acres of land in Winkler County. The land was classified as "mineral" land and subject to lease under the terms and provisions of Arts. 5367 to 5382, R.S., commonly referred to as the "Relinquishment Act." On August 10, 1926, LaBeff executed and delivered to Southern Crude Oil Purchasing Company an oil and gas lease covering the land for a consideration of $3200 cash as "bonus" money paid to LaBeff. No part of this money was paid to the State. The lease was for a term of ten years and provided for the payment of an annual delay rental of $160 in the event drilling operations were deferred. Based on that provision of the lease rental payments were made for the years 1927 to 1932, inclusive. On July 1, 1931, the lease was assigned to the appellant by the original lessee. On the same date the Southern Crude Oil Purchasing Company conveyed and assigned unto the appellant all of its other properties and assets of every kind. Shortly after the date last mentioned the Southern Crude Oil Purchasing Company was dissolved. During the seven year period the lease was kept alive by payment of delay rental. After the decision of the Supreme Court in the case of Empire Gas Fuel Company v. State, 121 Tex. 138, 47 S.W.2d 265, demand was made by the General Land Office upon the appellant for the payment of an amount equal to one-half of the bonus and delay rental which had been theretofore paid to LaBeff. In response to this demand the appellant paid the State $1632.
On January 15, 1935, this suit was filed by the appellant against LaBeff to recover the payment made as aforesaid to the State. The suit was filed within two years after the payment was made by the appellant to the State. The plaintiff sought to recover upon three theories: (1) In damages for breach of the general warranty contained in the lease of the land from LaBeff to Southern Crude Oil Purchasing Company; (2) that the money had been paid to LaBeff under a mutual mistake, for which reason the plaintiff was entitled to reimbursement; and (3) that plaintiff was subrogated to the right of the State to recover against LaBeff one-half of the moneys paid to him as aforesaid.
The case was tried without a jury and the relief sought by the plaintiff was denied.
F. J. Scurlock and Turner, Rodgers, Winn Sellers, all of Dallas (Clay Tallman and Leslie A. Thompson, Jr., both of Tulsa, Okla., of counsel), for appellant.
C. E. Patterson, of Alpine, and Joseph G. Bennis, of El Paso, for appellee on rehearing.
The proper disposition of this appeal is clearly and completely ruled by the decisions and opinions of the Austin Court of Civil Appeals in Shell Petroleum Corporation v. Tippett, 103 S.W.2d 448, in which a writ of error was refused by the Supreme Court, and Stanolind Oil Gas Co. v. H. P. Allison, 121 S.W.2d 480. The cases cited are directly in point and support the view that appellant should recover upon the three theories relied upon by it, and that the defensive issues urged by the defendant are without merit.
In view of the opinions rendered in those cases and the action of the Supreme Court in refusing a writ of error in the case first cited, it would serve no purpose whatever to discuss the matter. It follows that the judgment should be reversed and here rendered in favor of appellant for $1632, with interest from February 1, 1934, as prayed by plaintiff. It is so ordered.
Reversed and rendered.