Permian Oil Co. v. Smith (73 S.W.2d 490, 1934)

LEDDY, Commissioner.

This is a statutory action of trespass to try title for the recovery of the title and possession to a tract of 407 acres of land described as survey 103, block 194, T. C. Rail-_way Company, in Pecos county, Tex., and to recover damages growing out of the waste and wrongful appropriation of royalty oil and gas produced from such land. The royalty on the oil amounted to $431,067.15 on May 1, 1930.

The suit was instituted by plaintiff in error, Permian Oil Company, remote vendee of Hickox, as plaintiff, against Mrs. M. A. Smith, surviving widow, sole devisee and independent executrix of the estate of her deceased - first husband, John Monroe, and against her second husband, M. A. Smith, and her immediate vendees, and the oil and pipe line companies running oil from such survey.

Mrs. Monroe Smith died before the trial of the case, and the administrator of her estate and her heirs were properly substituted as parties defendant.

Upon a trial with a jury, plaintiff in error, by proper documentary evidence, established a regular chain of title from the state of Texas down' to John Monroe, vesting in him title to section 103, block 194, T. C. Railway Company, and section 35, block 194, G., C. & ,'S. F, Railroad Company, in, Pecos county, .Texas.

Plaintiff in error offered in evidence the following additional documentary evidence:

(1) The original petition filed by John Monroe on August 22, 1910, showing a statutory action of trespass to try title in cause No. 854. styled John Monroe, Plaintiff, v. T. F. Hickox, Defendant, in the district court of Pecos county, Tex., for the title and possession of three tracts of land situated in said county, being all of section 104, block 194, T. O. Railway Company, original grantee, a part of section 103, block 194, T. C. Railway Company, original grantee, and a part of survey 35, block 194, G., C. & S. F. Ry. Company, original grantee.

(2) The first-amended original petition filed hy John Monroe on February 28, 1911, in a statutory form of trespass to try title in said cause No. 854; said amended petition being as follows:

“In the District Court of Pecos County, Texas, February Term A. D. 1911.

“John Monroe vs. T. F. Hickox, No. 854.

“To the Honorable District Court of Said County:

“Now comes John Monroe who resides in Pecos County, Texas, hereinafter called plaintiff, and leave of the Court having first been had and obtained, files this his first amended original petition and complains of T. F. Hick-ox, hereinafter styled defendant, and for cause of action, plaintiff represents to the Court that on or about the 21st day of April A. D. 1909, he was lawfully seized and possessed of the following described land and premises, situated in the County of Pecos, State of Texas, holding and claiming the same in feo simple, to-wit:

“1st.

“All of Section No. 104, Block 194, T. C. Ry. Co. original grantee, situated in Pecos County, Texas.

“2nd.

“All of Section No. 103, Block 194, T. C. Ry. Co. original grantee situated in Pecos County, Texas, described as follows:

■ “Beginning at a stake and mound at the N. E. Cor. of Sur. No. 102, Blk. 194, T. C. R. R. Co., Cert. 2302, for the N. W. Cor. of this survey.

“Thence east 1900 vrs. to a stake and mound for the N. E. Cor. of this survey.

“Thence south 1209 vrs. to a stk. and md. for the S. E. Cor. of this survey.

“Thence West 1900 vrs. to a stk. and md. for the S. W. Cor. of this survey.

“Thence North 1209 vrs. to the place of beginning. And said Section No. 104, Block No. 194, T. C. Ry. Co. is described by metes and bounds as follows, to-wit:

“Beginning at a stake and mound at the N. E. Cor. of Survey No. 103, Block No. 194, for the N. W. Cor. of this survey.

“Thence East 1900 vrs. to stake and mound for N. E. Cor. of this survey.

“Thence South 1209 vrs. to stake and mound for S. E. Cor. of this survey; thence West 1900 vrs. to stake and mound for S. W. Cor. of this survey; thence North 1209 eeted to rely on the trial of the case. What is mistakenly assumed to be an abstract of title is merely the giving of the statutory notice required as a predicate for the introduction of certified copies of instruments which the parties desired to introduce ~upon the trial of this cause.

The notice given by Monroe was addressed to Hickox or his attorneys of record, and reads as follows: “You will hereby take notice that I have filed with the district clerk of Pecos County, Texas, to use as evidence in the above styled and numbered cause the following title papers, viz.” (Then follows a recital of various instruments constituting Monroe’s chain of title.) ;■

The notice given by Hickox is addressed to Monroe or his attorney .of record, and is as follows: “You are hereby notified that I have filed with the district clerk of Pecos County, Texas, to he used as evidence in the above styled and numbered cause the following title papers: Certified copy of application of Hick-ox to purchase Section 34, Block 194, G. C. & S. E. Ry. Co. for 640, together with application attached and endorsement and award by the Commissioner of the General Land Office made thereon.” ?

It is apparent from an inspection of the above-quoted documents filed by the parties that neither party was purporting to file an abstract of title in response to a statutory demand therefor. By giving the above notice, the right of neither party was foreclosed from offering any legitimate and admissible evidence to establish title to the land in controversy, as would have been the ease had they filed, in obedience to a statutory demand, an abstract of the title upon which they relied.

Even if it be conceded that Hickox, in the suit filed against him by Monroe, assumed and successfully maintained the position that there was a conflict between surveys 103 and 34, still, since plaintiff in error was not a party to that suit, it would not be prevented from defending the title acquired under Hickox upon any available ground.

It is well established that a position assumed by a party in a former judicial proceeding will not estop him, or privies in estate, from taking an inconsistent position in a new proceeding, unless the new action is between the same parties. The rule is thus stated by the author of Corpus Juris, vol. 21, p. 1229, § 233: “In order to work an estoppel, the position assumed in the former trial must have been successfully maintained. In a proceeding terminating in a judgment, the position must be clearly inconsistent, the parties must he the same, and the same questions must be involved.”

Ruling Case Law, vol. 10, p. 702, gives this statement of the rule: “It may be laid down as a general rule that a party will not be allowed in a subsequent judicial proceeding to take a position in conflict with a position taken by him in a former judicial proceeding, where the later position is to the prejudice of the adverse party, and the parties and the question involved are the same. * * * But, ex vi termini, the rule undex-lying these propositions does not apply to suits in which the issues and the parties are not the same, nor to a position not precisely that taken on the prior proceedings.”

In Heard v. Vineyard, 212 S. W. 489, 494, the rule as above defined was applied by the Commission of Appeals, as is revealed by the following quotation from the opinion: “Defendants stress the proposition that the Vineyards, having recovered in the Brundrett Case [17 Tex. Civ. App. 147, 42 S. W. 232] upon the theory that James B. AYells, Sr., and consequently Brundrett, never had title to the 11/24 interest therein, and herein involved, ‘ are estopped to urge in this case the entirely contrary theory that AYells did have a title which passed to Brundrett through the executor’s sale and vested in .Lillian Yineyard through her judgment against Brundrett. Such am, estoppel can only he urged in favor of the parties to that suit. Defendants not being parties to the suit of Vineyard v. Brun-drett, plaintiffs are in no manner estopped to assert another and contrary theory upon which to base a recovery, which in this case is but an adoption of defendants’ theory.”

The reason for this rule is apparent. If a party has assumed a certain position and procured a judgment in his favor which vests title in him to the land involved, he has in law a good title thereto. Since he has such a title, it naturally follows that he may convey a good' title to one purchasing from him.

If Hickox took the position assumed in cause No. 854, and thereby obtained judgment, the effect of which was to vest the title to survey 103 in him, then there was no infirmity in his title. Presumptively, the final judgment in his favor was correct. Since this is true, no valid reason exists why he could not convey to another a good and indefeasible title to the premises. It is true that if Hickox himself were seeking to maintain-this suit, he would be estopped from asserting any position inconsistent with that which he maintained when he obtained judgment in the former proceeding. But the plaintiff in this case has taken no inconsistent position in regard to the title to this land. It has bought and paid for the land upon the assumption that the judgment in said former proceeding operated to divest title out of Monroe and vest the same in Hickox. It therefore cannot be barred from asserting any defense of its title that it may see fit to urge, even though its predecessor in title may havq maintained an entirely different position in acquiring the same. Plaintiff in err