Opinion
No. 4171.
April 23, 1932. Rehearing Denied June 9, 1932.
Appeal from District Court, Gregg County; Geo. W. Johnson, Judge.
Suit by Garrett Boone against R. L. Bassham and others. Judgment for defendants, and plaintiff appeals.
Affirmed.
The suit was by appellant, Garrett Boone, as plaintiff against appellees R. L. Bassham, his wife, Sarah M. Bassham, and R. M. Wood. It was to specifically enforce a contract in writing to convey an undivided one-fourth interest in the oil and gas in and under a described 56.6 acres of the W. H. Castelberry survey in Gregg county, or, in the alternative, for damages for a breach of said contract. It appeared from a copy thereof made a part of the petition that appellee R. L. Bassham and one J. E. B. Boone were the only parties to the contract; but appellant alleged that in making it said J. E. B. Boone acted as his agent, and that the contract in fact was between him and said Bassham and not between the latter and J. E. B. Boone as it purported to be. Appellees' answer consisted of exceptions, a general denial, a plea alleging that the 56.6 acres of land was the homestead of appellees R. L. Bassham and his wife at the time the former entered into the contract, and a plea charging that said R. L. Bassham was induced to enter into the contract by fraud practiced on him by J. E. B. Boone. As to the claim of homestead, it appeared in the evidence that Bassham had never occupied or used the land as a homestead, but the jury found on special issues submitted to them (1) that it was his intention and purpose when he purchased it "to move upon, use and occupy it as the home of himself and family; (2) that he would have moved upon and so used it "had it not been for the sickness of his wife"; (3) that at all times after he purchased the land it was Bassham's intention to occupy and use the land as his homestead; and (4) that continuously after he purchased it he had been "unavoidably prevented from moving upon, using and occupying same as the home of himself and family by reason of the sickness of his wife." It appeared from the contract in question that J. E. B. Boone was to pay Bassham $1,000.00 for the oil and gas — $50 in cash and $950 "on the approval of the title." It was stipulated that, if Boone should fail to "make any of the payments," Bassham might "at his option terminate the contract," and that Boone should forfeit to him "all payments made as liquidated damages." It was stipulated, further, that, if the title could not be perfected in fifteen days from the date of the contract (March 28, 1931), all sums of money paid by Boone to Bassham should be repaid to Boone. With reference to the contract, the jury found in response to other special issues submitted to them (1) that Boone did not comply with his undertaking thereunder; (2) that Bassham complied with his undertaking; and (3) that Boone had not been damaged "on account of the failure of Bassham to execute the mineral deed." It appeared in the evidence (1) that Bassham and his wife by an instrument dated October 13, 1930, leased the 56.6 acres of land to A. G. Phillips for oil and gas mining purposes only, for a term of ten years and as long thereafter as gas or oil was produced therefrom, the consideration being Phillips' undertaking to deliver to them one-eighth of the oil taken therefrom and one-eighth of the value of gas sold therefrom; and (2) that by an instrument dated January 30, 1931, the Basshams sold to R. M. Wood an undivided one-half interest in and to the oil and gas in and under the land, subject to the terms of said lease to Phillips. The appeal is from a judgment in appellees' favor.
Chauncey, Fitzgerald Hatchitt, of Longview, Hart, Patterson Hart, of Austin, and C. F. Richards, of Lockhart, for appellant.
H. G. Corbin, of Gladewater, and Sullivan Wilson, of Dallas, for appellees.
The contention first presented in appellant's brief is that it appeared in the evidence heard at the trial that the 56.6 acres at land never was the Basshams' homestead. We think the contention should be overruled. It was shown that Bassham was a farmer and owned land in Smith county on which he resided with his family and which they used as a homestead until about seven years before the time of the trial, to wit, August 13, 1931, when they moved to Dallas, "on account," Bassham testified, quoting, "of my wife's sickness." Bassham purchased the 56.6 acres of land November 19, 1928, paying for same with money he obtained by selling his homestead in Smith county. It seems he owned no other land, and he testified he bought the 56.6 acres, intending at the time, and all times thereafter, to move onto same with his family and make it their home, but to the time of the trial had been prevented from doing so by the continued illness of his wife. The land was occupied by a tenant of the owner at the time Bassham purchased it, and, after he purchased it, he rented it to the tenant by the year — refusing, the tenant testified, to rent it for a longer period, and giving as a reason for such refusal that "he bought it to live on it," and was "going to move down." While Bassham never occupied the land, he visited it from time to time, discussed the matter of having electric lights put in the dwelling house thereon, for use when he moved with his family to the land, and in the spring of 1929 personally assisted his tenant in the work of recovering said dwelling house.
The contention next presented in said brief is that, if the land ever became the Basshams' homestead, the mineral estate therein ceased to be a part thereof when they leased the land to A. G. Phillips and conveyed an interest therein to R. M. Wood, as shown in the statement above. It is insisted that such lease and conveyance segregated the mineral from the surface estate in the land and presented a situation inconsistent with the continued existence of the mineral estate as homestead, and hence operated as an abandonment of any claim of homestead therein. The contract in question therefore was, appellant insists, valid and enforceable, notwithstanding Bassham's wife did not join him in the execution thereof. We think the contention should be overruled. The lease to Phillips did not pass title to any of the oil and gas not taken from the land, and the conveyance to Wood was only of an undivided interest, subject to the lease, in oil and gas in and under the land. Certainly, if those instruments should be held to have operated to segregate the part of the mineral estate therein specified from the surface estate, the abandonment thus accomplished should not be held to have extended to the part of said mineral estate not so segregated. That part, we take it, if ever homestead, never ceased to be homestead, and it is that part which, as we understand appellant, he contends was covered by the contract he sought to specifically enforce.
Another contention presented in said brief is that the finding of the jury that appellant did not comply with his undertaking under the contract was contrary to undisputed evidence showing he did comply with same. It will be noted on referring to the statement above that J. E. B. Boone was to pay Bassham $50 in cash at the time he and Bassham entered into the contract, and $950 "on the approval of the title." It appeared in the evidence that the $50 was not in fact paid, but that a check for the amount drawn by J. E. B. Boone on appellant, or on a bank in Longview, was delivered by said J. E. B. Boone to Bassham, who, without presenting same to the drawee for payment, returned it to appellant. There was testimony that appellant had the title examined and approved same, and there was testimony which, as we construe it, warranted a finding that appellant never, on approving the title or at any other time prior to the trial, made a lawful tender of payment of the $950 he had agreed to pay Bassham. It seems, therefore, that the finding of the jury attacked was not without evidence to support it.
Other contentions than those specified are set forth in said brief, but we think none of them presents a sufficient reason for disturbing the judgment. Therefore it is affirmed.