As shown in the opinion of Justice LANE, I concur in the conclusion expressed in that opinion that the judgment of the trial court should be affirmed. The purpose of this opinion is to point out the insufficiency of the evidence to raise any issue of fact material in the determination of this appeal, and to add some additional compelling reasons for the affirmance.
I do not think the evidence raises any issue as to the genuineness of the letter of February 16, 1900, which McCombs testified he wrote and delivered to Abrams as a part of the contractual terms upon which a one-half interest in the land was originally conveyed to Abrams. It is not in terms contradictory of the letter of March 25th, set out in the opinion of Justice LANE. It merely adds an additional agreement, which, while it affects the character of McCombs' title to the one-half interest in the land retained by him, also permits McCombs to relieve himself of his obligations to Abrams to pay one-half of the unpaid purchase money due the Land Mortgage Bank and get title from Abrams to such proportion of the land as he may have paid for, which McCombs could not have so acquired in the absence of this agreement. Abrams' acceptance of this additional agreement bound him thereby and gave to McCombs a right which in his pecuniary situation might become, and which under all the evidence in the case did become, of material value, in that it enabled him when he was no longer willing to carry out his contract with the Land Mortgage Bank to acquire 100 acres of the land that he might otherwise have lost.
It is true that at one stage of his testimony McCombs stated that the original trade with Abrams was on the basis of his letter of March 25th, and subsequently states that the two letters composed the terms of the original agreement. This seeming inaccuracy in his first statement, which he subsequently corrected, is not sufficient to raise an issue as to the genuineness of the letter of February 16th. He testified that this letter was a part of the contract by which he conveyed Abrams his original one-half of the land, and that he found it among Abrams' papers some time before it was introduced in evidence. His cross-examination upon these statements brought out nothing tending to discredit them beyond the claimed contradictions before mentioned.
It is not contended that the instrument bears on its face any evidence of forgery, and no fact is shown tending in the least to contradict the statement that it was found with Abrams' papers after his death. Nor can I find in this record any sufficient evidence to raise an issue of fraud or bad faith in the sale to Abrams after the death of his wife of the community interest in the land. Fraud or bad faith on the part of McCombs cannot be inferred from the circumstances that Abrams was not pressing him for repayment of the advances made for him, and that, if McCombs had held on a year or two longer, the fortuitous discovery and production of oil on a portion of the land would have made his interest in the land of great value. McCombs cannot be branded as a fraud or forger because he was unwilling to longer assume obligations he felt unable to meet and was unwilling to continue on the chance of oil being discovered on the land. He is far from being the first or the only man in such situation whose heart became sick from "hope deferred" and who unnecessarily surrendered when, if he had carried on a little longer, he would have received the full fruition of his hopes.
When the whole record and all of the testimony of McCombs is considered, the most that can be said of his statements in regard to his dealings with Abrams is that he may have been at times somewhat "leaky of tongue and pen." With high respect for the contrary opinion of Justice GRAVES, I do not think there is any evidence in this record of sufficient probative force to raise more than a surmise or suspicion of fraud in McCombs' transactions with Abrams, and, under the well-settled rule of decision in this state, such evidence does not present an issue for the *Page 602 jury. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.
I am further of opinion that the statutes of limitation pleaded by appellees and fully sustained by the evidence constitute a perfect defense against the suit of the appellants, as heirs of the community estate of their mother in the land. The record shows that the deed from McCombs to Abrams made in March, 1906, was recorded in Brazoria county March 5, 1906. Tax receipts were exhibited showing payment by Abrams for each year from 1907 to 1920, inclusive. The undisputed testimony shows that during all those years the land in controversy was in the possession of R. R. Farmer under a lease with Abrams; that he used it for pasture; that he kept the fences in constant repair, riding them regularly; that the possession was open, exclusive, and adverse.
This evidence fully supports appellees' pleas of 5 and 10 years' limitation.
The subsequent lease of the land to the Producers' and Texas Oil Companies in no way affected the adverse and exclusive character of the possession. Clements v. Texas Company (Tex.Civ.App.) 273 S.W. 993; Gathright Land Co. v. Begley, 200 Ky. 808, 255 S.W. 837.
The contention of appellants in reply to the plea of limitation is that they were cotenants with McCombs, and no notice was given them of the repudiation of such cotenancy.
The deed from McCombs to Abrams can only be construed as conveyance of all of the one-half interest in the land then held by him under his deed from the Land Mortgage Bank, less the 100 acres conveyed to him by Abrams. That a deed of this character by one cotenant is sufficient to put the other cotenant upon notice that his rights in the property conveyed have been repudiated appears to be settled by the following cases: Church v. Waggoner, 78 Tex. 200, 14 S.W. 581; Humphreys v. Edwards, 89 Tex. 518, 36 S.W. 333, 434; Puckett v. McDaniel,8 Tex. Civ. App. 630, 28 S.W. 360.
I also agree with appellees that the defense of innocent purchaser interposed by the Texas Company was sustained by the uncontradicted evidence. The record shows that on December 23, 1914, Abrams executed a mineral lease or deed conveying the minerals in and under the land to the Producers' Oil Company, the predecessor in title of the Texas Company. This lease recites a consideration of $5, and that the instrument is executed for the purpose of having the oil prospects of the land developed, and expressly conveys to the grantee "all the oil, gas and sulphur in and under the land." The lease further provides:
"If operations for the drilling of an oil or gas well are not begun on said land on or before the first day of April, 1915, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the credit of the lessor * * * the sum of $500, which payment or tender may be made by the check or draft of the lessee, and however made, shall operate to confer on the lessee the privilege of deferring the time limit for six months from said date. Thereafter in like manner and upon like payments or tenders of said amount, the time limit may be further deferred for additional periods of six months successively * * * for a period of five years.
"If during the period of this lease or during the extension of the time limit for drilling there shall be drilled on adjacent land and within 200 feet of any line of said leased land, a well producing as much as 50 barrels of oil per day for thirty consecutive days, the lessee will, with reasonable diligence, begin and prosecute the drilling of a well on said leased land in a faithful effort to find and produce oil in paying quantities."
If oil was discovered, the lease was to remain in effect as long as oil should be produced therefrom in paying quantities. The lease was made assignable.
On November 13, 1917, two deeds were executed by Producers' Oil Company to the Texas Company, both including this lease. One of them recites a consideration of $3,000,000 and includes various other properties.
The consideration recited in this deed was paid by the Texas Company. Prior to this sale the Producers' Oil Company had made the semiannual payment of $500 each in accordance with the provisions of its lease from Abrams, and thereafter the Texas Company made these payments until it began drilling for oil on the land, the total amount so paid being $5,000.
Neither the Texas Company nor the Producers' Company had any notice, at the time this lease was acquired and these payments under the lease were made, that McCombs had ever been married, and knew nothing of the claims of appellants, or of appellants' existence.
It is, I think, clear that the consideration for this lease and conveyance was amply sufficient to support appellees' plea of innocent purchaser. This conclusion is fully sustained by the following cases: Texas Company v. Barker (Tex.Civ.App.) 258 S.W. 864; Burt v. Deorsam (Tex.Civ.App.) 227 S.W. 354, 355; McKay v. Lucas (Tex.Civ.App.)220 S.W. 172.
As I understand this record and interpret the decisions of our higher courts, the trial court was required to grant appellees' motion for an instructed verdict. *Page 603