Empire Gas & Fuel Co. v. Albright

Texas Supreme Court

Empire Gas & Fuel Co. v. Albright

87 S.W.2d 1092, 126 Tex. 485, 1935 Tex. LEXIS 428

CourtTexas Supreme Court

DecidedDecember 4, 1935

DocketNo. 6702.

StatusPublished

Cited by44 cases

This text of 87 S.W.2d 1092 (Empire Gas & Fuel Co. v. Albright) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Empire Gas & Fuel Co. v. Albright, 87 S.W.2d 1092, 126 Tex. 485, 1935 Tex. LEXIS 428 (Tex. 1935).

Pincite

Opinion

Mr. Presiding Judge RYAN

delivered the opinion of the Commission of Appeals, Section B.

Mrs. Annie Albright, her four children, as owners, with four certain other parties who claim under an oil and gas lease thereon, on June 15, 1931, brought this suit against W. E. Col *488 lins, W. C. Hurst, J. W. Akin and wife, and certain other parties, including several oil, gas, and pipe line companies, for the recovery of that portion of the Wm. H. Castleberry Survey in Gregg County described as follows: Beginning at S. E. corner of a 47j^ acre tract belonging to Marguerite Albright, et al., same being 254 varas E. from the Castleberry S. W. Corner; thence E. with the Castleberry South boundary line 5913 feet to the S. E. Corner of a 447^2 acre tract; thence N. 3453 feet to the southeast corner of the P. S. Harris tract in the Castle-berry Survey; thence S. 86 W. 5956 feet to the N. E. Corner of a 447½ acre tract, stake for corner; thence S. 1/2 E. 2970 feet to the place of beginning, alleged to contain 447.5 acres of land, moré or less.

By subsequent counts in the petition, plaintiffs sought in equity to set aside and have declared as void two certain judgments rendered against Mrs. Annie Albright and a sale under execution under one of the judgments, as a cloud upon title.

Judgment was rendered for the defendants upon special issues, which judgment was reversed by the Court of Civil Appeals, decreeing that plaintiffs take nothing as to approximately 400 acres in rectangular form 2146 varas east and west and 1052 varas north and south, but that plaintiffs recover the excess over said 400 acres, identified as a triangular tract lying north of a line running east and west 1052 varas from and parallel with the south line of said tract, containing approximately 38 acres. 64 S. W. (2d) 1096.

The Albright title originated in a conveyance from G. B. Turner and J. N. Campbell, to John Albright and T. A. Al-bright, dated Nov. 5, 1907, the description being as follows: A part of the Wm. H. Castleberry Survey, known as Lot No. 2 of said survey, and beginning at P. S. Harris S. E. Corner, thence W. with his S. line at 2400 varas his S. W. Corner, a stake on W. line of Castleberry league, from which a post oak bears N. 68 W. 9 4/10 varas, a maple S. 27 W. 5 4/10 varas, thence S. with said line at 1052 varas the S. W. Corner of said league, thence E. with S. line of same at 2400 varas a stake on the S. W. corner of Bumpus tract from which a small pine bears N. 45 E. 2 varas, thence N. with W. line of said Bumpus tract to the beginning, containing 447½ acres of land.

T. A. Albright died on August 2, 1917; his widow, Mrs. Annie Albright, qualified, as administratrix of the estate and sued John Albright and his children by a deceased wife, in the *489 district court of Harrison County, for partition of the several tracts of land acquired by John and T. A. Albright. The so-called 447% acre tract was awarded to Mrs. Annie Albright, as administratrix of her husband’s estate, for and in behalf of said estate.

By deed dated February 21, 1918, R. A. Albright, a child, conveyed his interest in the property to his mother, Mrs. Annie Albright, thus placing in her (her community interest of one-half, plus his one-fifth of the father’s community interest of one-half) a six-tenths interest.

On December 29, 1919, the District Court of Gregg County approved report of Commissioners in a partition suit between Mrs. Annie Albright and her four remaining children, which awarded to said children, 47½ acres off of the west end of said tract, the lines to be run that the width shall be uniform, and awarded to Mrs. Annie Albright “the east 400 acres of said tract, described as follows: Beginning at S. E. Corner of 47½ acre tract belonging to Marguerite Albright, et al, same being 254 varas east from the Wm. Castleberry S. W. corner, thence E. with Castleberry South boundary line 2146 varas to the S. E. corner of a 447½ acre tract, thence N. 1052 varas to stake for corner, thence W. 2146 varas to the N. E. corner of 47% acre tract, stake for corner, thence S. 1052 varas to the place of beginning, containing 400 acres.”

The report of the commissioners in partition shows that they were dividing the entire tract, the beginning call of which is designated “the P. S. Harris S. E. corner,” originally known as a 447% acre tract, and when they awarded the 47½ acres to Mrs. Albright’s children and the remaining east 400 acres to her, they intended to partition the entire tract and vest title in Mrs. Albright to what remained of the entire tract after segregating the 47% acres awarded to the children. McCardle v. Lee, 111 Texas, 380, 235 S. W., 518; Rio Bravo Oil Co. v. Weed, 121 Texas, 427, 50 S. W. (2d) 1080; Bearden v. Schnecker, 240 S. W., 996.

A better understanding of issues in this case may be had from the annexed plat. The land awarded to Mrs. Albright’s children is shown between the points A B E X and that awarded to Mrs. Albright, between the points B C D E, the latter, at that time supposed to contain 400 acres, but now ascertained to contain in fact about 436 acres.

*490

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