Brief for the Respondent in Opposition — Kennemer v. Billington

IN THE

Supreme Court of the United States

i7-

———Term, 1944

6) « :

No.—&—

C. B. KENNEMER, ET AL, Petitioners and Appellants Below,

vs.

C. B. BILLINGTON, ET AL, Respondents and Appellees Below.

REPLY OF RESPONDENTS IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

GALLOWAY CALHOUN

Counsel for Respondents,

Post Office Address:

Citizens National Bank Building,

Tyler, Texas

OF COUNSEL:

THOS B. RAMEY,

RAMEY, CALHOUN, MARSH, BRELSFORD, & SHEEHY,

Post Office Address :

Citizens National Bank Building,

Tyler, Texas.

E. Duncan & Co., Brief Printers, Dallas

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AUTHORITIES

Page

Burnet v. Commonwealth Improvement Co., 53 S. Ct.

198, 287 U.S. 415, 77 L. Ed. 399 .......--eesseeerecntenees 7

Drury v. Foster, 2 Wall. 24, 17 L. Ed. 780 .................. 16

Helvering v. Taylor, 55 S. Ct. 287, 293 U. S. 507, 79

Te, FRA. CES oi nccnseccccecensescesecssceceeessvesensensnssaseransnensenseosoes 8

Owens v. Union Pacific R. R. Co., 63 S. Ct. 1271, 87

Te WA, BOE vcncnecncssccnpcsscscssecrncnssscvenssenrnscrscscnsencnensnans 7

Robertson v. Vernon, 12 S. W. (2d) 991... res 16

Rorick v. Devon Syndicate, 57 S. Ct. 877, 307 U.S. 299,

83 L. Ed. 1308 .............. See

Sonzinsky v. United States, 57 5. Ct. 54, 200 U.S.

506, 81 L. Ed. 772 .........-. 7

T. & N. O. Railroad Co. v. B. of R. & 5. Clerks, 50 3.

Ct. 427, 281 U. S. 548, 74 L. Ed. 1084 0.0 9

The Linseed King, 52 S. Ct. 560, 285 U. S. 502, 76

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United States v. O’Donnell, 58 S. Ct. 708, 303 U. S.

BOL, 82 Li Ed. 980 ou... cssecsesesessssesseentensenessenenensenes 9

Virginian Railway Co. v. System Federation No. 40,

57 S. Ct. 592, 300 U. S. 515, 81 L. Ed. 789 ............ 9

Waterloo Distilling Corp v. United States, 51 S. Ct.

282, 282 U.S. 577, 75 L. Ed. 558 «0... eects 7,8

IN THE

Supreme Court of the United States

————Term, 1944

No.

C. B. KENNEMER, ET AL, Petitioners and Appellants Below,

VS.

C. B. BILLINGTON, ET AL, Respondents and Appellees Below.

REPLY OF RESPONDENTS IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

I.

STATEMENT OF THE CASE

The Statement of the case, which is contained in the Peti-

tion for Certiorari, and in the supporting brief of the

Appellees herein, is believed to be somewhat inadequate,

particularly in regard to the issues which were presented

to and decided by the Circuit Court of Appeals. The opin-

ion of said court, which was rendered on March 28, 1944,

is reported in Federal Reporter, second series, Volume

2

141, Page 555. A reading of said opinion discloses the

factual background of this litigation and the controverted

issues of fact and questions of law were decided. As ap-

pears from the record in this cause and the opinion of the

Circuit Court of Appeals, the only propositions which

were submitted to such court, and the court’s ruling

thereon, are succinctly stated as follows:

(1) The trial court’s Findings of Fact that (a) the

mineral deed under attack was not signed in blank but

was properly completed before its execution by the grant-

ors, and (b) that it was properly and privily acknowl-

edged, were supported by the evidence, and Appellants’

contention that such Findings should be set aside as clearly

erroneous under Rule 52(a) of the Rules of Civil Pro-

cedure, was overruled.

(2) Said mineral deed was subsequently expressly rati-

fied by the Grantors by written instrument executed by

them in 1942.

(3) If it be conceded that such mineral deed was nei-

ther duly executed nor acknowledged, nor effectively rati-

fied by the grantor Mrs. Kennemer, same being in all

events valid as to her husband, the grantor C. B. Kenne-

mer, such deed became fully operative upon the death of

Mrs. Kennemer, which occurred prior to the institution

of this suit, to the extent of the one-half undivided min-

eral interest which was purported to be conveyed thereby.

3

II.

ARGUMENT

POINT A: Inasmuch as neither the District Court

nor the Circuit Court of Appeals considered or decided,

as a matter of law, the question whether or not a mineral

deed conveying an interest in lands in Texas constituting

the homestead of the grantors, if executed in blank and

without acknowledgment, is valid; and inasmuch as such

question is the only ground upon which Petitioners herein

seek to invoke the jurisdiction of the Supreme Court,

the Petition for Certiorari should be refused.

In the Petition for Certiorari, herein, Page 13, the sole

question presented is stated as follows:

“Whether a mineral deed upon land constituting

the homestead of husband and wife is a valid con-

veyance when executed in blank, with no grantee, no

description of the property sought to be conveyed and

not acknowledged before a notary public, as provided

by the Constitution and laws of the State of Texas.”

In conformity with the foregoing there appears on

Pages 16 and 17 of Petitioners’ supporting brief, the fol-

lowing statement:

“(e) The jurisdiction of this Court is invoked

upon the following grounds:

“(1) In holding that a deed upon a homestead

may be executed in blank by a husband and wife, and

that the name of the grantee in said deed and the de-

4

scription of the property sought to be conveyed may

be later added, and that a notary public may attach

his certificate thereto without either of the parties

having personally appeared before such notary, the

United State Circuit Court of Appeals decided an

important question in conflict with Section 52, Ar-

ticle 16 of the Constitution of the State of Texas, and

in conflict with Articles 1288. 1300, 3995 and 6605

of Vernon’s Annotated Texas Statutes, and in con-

flict with the well settled line of decisions of the

Supreme Court of the State of Texas and particularly

in conflict with ROBERTSON, ET AL, vs. VERNON,

ET UX, 12S. W. (2d) 991, and in conflict with the

decisions of this Honorable Court and particularly in

conflict with DRURY vs. FOSTER, 2 Wall. 24, 34,

17 L. Ed. 780, as will be hereinafter more fully set

out.”

A rather casual reading of the record in this case will

reveal that the Petitioners he*ein are seeking to gain a

review of this cause upon a premise which is entirely false

and which is wholly without foundation. Nowhere in the

record in tis cause can be found a statement or holding

by either the District Covrt or the Cireuit Court of Ap-

peals to the effect that as a matter of law a deed convey-

ing mineral interest in homsestead lands, when executed

in blank, or without proper acknowledgment, is valid. Nei-

ther of the courts below undertook to determine such ques-

tion. Indeed it was wholly unnecessary that such question

be determined for the simple reason that the trial court

expressly found (1) that the mineral deed in question was

not executed in blank, and (2) that the same was properly

5

acknoweldged. Hereinbelow we quote the Findings of the

trial court on such issues, as follows:

“4, On October 28, 1929, the said C. B. Kennemer

and wife, Lottie Kennemer, made, executed, and de-

livered unto C. D. Davis a deed of conveyance where-

in and whereby said grantors sold and conveyed unto

said grantee an undivided one-half interest in and

to all the oil, gas, and other minerals, in and under

and that may be produced from the above described

lands and premises, subject to any valid lease of prior

date, but covering and including one-half of the ren-

tals and royalties payable under the terms of said

lease, and containing covenants of general warranty.

Said deed was prepared upon a printed form, but prior

to the execution and acknowledgment thereof by the

grantors the various blanks contained in said printed

form were duly filled in, including the names of the

grantors and grantee, a complete description of the

property affected, the interest therein conveyed there-

by, and a recited consideration.

“cc

5. The grantors C. B. Kennemer and wife, Lottie

Kennemer, appeared before W. C. Stevenson, a duly

qualified and acting Notary Public in and for Wood

County, Texas, for the purpose of acknowledging the

aforesaid conveyance. Thereupon said Notary Public

duly took the acknowledgments of each of said gran-

tors to said conveyance in the manner provided by the

Statutes of Texas for husband and wife, and duly

so certified to same. as reflected by the certificate of

acknowledgment affixed to said deed.” (Findings of

Fact Nos. 4 and 5, R. Page 241)

A further examination of the record in this cause will

disclose that substantially the sole burden of Petitioners’

ae

ii, eee

~

6

complaint to the Cireuit Court of Appeals rested upon the

contention that the foregoing Findings of Fact of the

trial court were wtihout support in the evidence and were

so clearly erroneous as to authorize the appellate court

to set the same aside under the provisions of Rule 52(a)

of the Rules of Civil Procedure. With the exception of two

assignments which attack the ruling of the trial court on

admissibility of testimony, all of the specifications of er-

ror which were assigned in the appeal to the Cireuit Court

of Appeals, were directed to the alleged insufficiency of

the evidence to support the trial court’s Findings. An

examination of the specifications of error cited in Peti-

tioners’ brief herein, which are substantially the same as

those specifications which were cited in their brief be-

fore the Circuit Court of Appeals, will give support to

the foregoing statement. (Petitioners’ Brief, Pages 27 to

35)

The Circuit Court of Appeals accorded due considera-

tion to the contentions of the Appellants (Petitioners here-

in) attacking the sufficiency of the evidence to support

the trial court’s Findings of Fact and expressly over-

ruled the same in the following language:

“We agree with appellees that the clear and posi-

tive findings of the district judge that the deed was

properly completed before execution and that it was

properly and privily acknowledged may not be set

aside by us as erroneous. The facts and circumstances

in support of the validity of the deed and the complete-

ness and legality of its execution, if they do not com-

7

pletely overweigh those in support of its invalidity,

certainly fully support the findings of the district

judge that they do, and the judgment must be affirmed

on these findings * * * *.” (R. Page 255)

Consequently, it appears beyond question that the de-

cisions of both the trial court and the Court of Civil Ap-

peals in the instant cause were controlled and determined

by specific Findings of Fact to the effect that the mineral

deed in question was properly prepared and completed

when executed and, likewise, was thereafter properly ac-

knowledged. Such fact findings necessarily dispensed with

any determination by either court of the legal question

which is here posed by the Petitioners.

Therefore, in the light of the record in this cause Peti-

tioners are placed in the untenable position of undertak-

ing to invoke the jurisdiction of the Supreme Court for

the determination of a question that was neither presented

to nor decided by either of the lower courts. It now ap-

pears to be definitely settled that the Supreme Court will

not consider on certiorari an issue which was not dealt

with by the Circuit Court of Appeals. Owens v. Union

Pacific RR Company, 63 S. Ct. 1721, 87 L. Ed. 1683;

Burnet v. Commonwealth Improvement Company, 53 S.

Ct. 198, 287, U. S. 415, 77 L. Ed. 399. Likewise, it is the

established rule that the Supreme Court will refuse to

consider a question which was not assigned as error in

the Cireuit Court of Appeals. Sonzinsky v. United States,

57S. Ct. 554, 300 U. S. 506, 81 L. Ed. 772; Waterloo Distill-

AS LO EE

8

ing Corporation v. United States, 51 S. Ct. 282, 282

U. S. 577, 75 L. Ed. 558.

Inasmuch, therefore, as the sole question which is sub-

mitted in the Petition herein as a basis for review by

the Supreme Court was neither cited as error in the ap-

peal before the Circuit Court of Appeals, nor decided by

such Court, it necessarily follows that the Supreme Court

will not be disposed to undertake to review the action of

the courts below in this proceeding. It has distinctly been

decided that the only question the Supreme Court will

accord consideration on petition for certiorari is the ques-

tion which is stated in the petition. Helvering v. Taylor,

55 Supreme Court, 287, 293 U. S. 507, 79 L. Ed. 623;

Rorick v. Devon Syndicate, 57 S. Ct. 877, 307 U. S. 299,

83 L. Ed. 1303.

POINT B: Inasmuch as both the District Court and

the Court of Appeals made concurrent Findings of Fact

that the mineral deed in question was not executed in

blank and that same was duly acknowledged by the grant-

ors, the Petition for Certiorari herein, being grounded

in an attack upon such Findings of Fact, should not be

entertained by the Supreme Court.

As has been stated hereinbefore, the District Court ex-

pressly found to be a fact (1) that the mineral deed in

controversy which was executed by C. B. Kennemer and

wife, was not executed in blank, as alleged by the Peti-

tioners, but that the same was duly completed when it

9

was signed by the grantors; and (2) that said grantors

duly appeared before a Notary Public and properly ac-

knowledged such instrument. After due consideration of

the evidence the Circuit Court of Appeals expressly held

that the aforesaid Findings of the trial court found sup-

port in the evidence, contrary to the contention of the

Appellants that such Findings were clearly erroneous un-

der Rule 52(a) of the Rules of Civil Procedure. Thus

Petitioners herein find themselves confronted with the in-

escapable conclusion that the fact issues upon which any

relief they seek must be founded have been decided by

both of the courts below adversely to their contention.

In view of this situation it is respectfully submitted that

the Supreme Court will not grant the Petition for Cer-

tiorari herein. It appears to be the established rule that

the Supreme Court will accept concurrent Findings of

the District Court and the Circuit Court of Appeals on

all questions of fact when sucn Findings are not shown

to be clearly erroneous or unsupported by the evidence.

T. N. O. RR. Co. v. B. of R. & S. Clerks, 50 S. Ct. 427,

281 :;U. S. 548, 74 L. Ed. 1034; Virginian Ry. Co. v. Sys-

tem Federation No. 40, 57 S. Ct. 592, 300 U. S. 515,

81 L. Ed. 789; United States v. O'Donnell, 58 S. Ct.

708, 303 U. S. 501, 82 L. Ed. 980; The Linseed King,

52 S. Ct. 450, 285 U. S. 502, 76 L. Ed. 908.

Without deeming it necessary to review at length the

evidence in this cause, we shall undertake to make only

brief references to certain portions of same which will

10

convincingly disclose that the factual contentions of the

Petitioners were strongly controverted, and that both the

trial court and the Circuit Court of Appeals were amply

warranted in determining such issues of fact adversely

to Petitioners. Briefly stated, Petitioners base their case

upon the testimony of the Petitioncy Kennemer and wit-

nesses Davis and Craddock, both of whom were shown

to be inimical to Respondents, to the effect that the min-

eral deed in question was executed by Kennemer and his

wife at a time when a description of the property and the

name of the grantee had not been inserted, and further,

that neither of said parties appeared before the Notary

Public whose name was signed to the certificate of ac-

knowledgment appended to the deed. Each of said wit-

nesses testified that the name of the grantee and the de-

scription of the land in question were inserted in the deed

after same was signed, and that the certificate of ac-

knowledgment of the Notary Public was attached to the

instrument at the request of the witnesses Davis and

Craddock and without the grantors having appeared be-

fore the Notary for the purpose of making such acknowl-

edgment.

-It is significant, however, that each of said witnesses

admitted frankly.that the mineral deed when completed

reflected the exact transaction to which Kennemer and

wife had agreed, and that. they were paid and accepted

the stipulated consideration therefor. The testimony of the

11

witness Davis in this respect is reflected in the follow-

ing:

“Q. The facts recited in this instrument truly

reflect the trade you made with Mr. Kennemer?

A. It was being purchased by Mr. Gilbreath,

but the instructions were that it be left in blank.

I didn’t discuss with Kennemer whether I was buy-

ing it for Gilbreath, Craddock or Davis, just bought

it and gave him a check for it.

Q. In all other respects the instrument reflects

the true trade you made with Kennemer, does it not?

A. Yes.

Q. And you paid the money you agreed to pay

him and he accepted it and cashed it?

A. That’s right.” (R. Page 59-60)

To like effect is the testimony of the witness Crad-

dock:

“Q. Didn‘t you tell them this: ‘So far as I know,

C. B. Kennemer sold this royalty in a fair and

square way, and I know of nothing to the contrary?’

A. Yes, sir.

Q. You say it now, don’t you?

A. Yes, sir.

Q. You never did tell Mr. Gilbreath or Mr. Bill-

ington that there were any irregularities in this

mineral deed you procured for them, did you?

A. No, I didn’t know there was anything.”

12

Petitioner Kennemer himself frankly concedes that the

conveyance which he executed correctly reflected the true

transaction. Observe the following:

“Q. Is there anything about this mineral deed that

you are now attacking that don’t reflect the exact

trade you made with Mr. Davis at that time?

A. I don’t know that there is.” (R. Pages 129-

130)

In this connection the following colloquy took place be-

tween the trial court and the Petitioner Kennemer:

“THE COURT:

“T understand the law about this business, but

just answer me this: How can you from a moral

standpoint justify this claim after you sold this

mineral interest, and it conforms to the terms you

agreed to sell it on, and you got your money?How do

you justify bringing this law suit?

A. I don’t know whether there is any justifica-

tion or not; it’s just a matter of fact.

THE COURT:

I don’t think so either.” (R. Page 143)

Respondents were handicapped by the fact that neither

of them was present at the transaction surrounding the

execution and acknowledgment of the mineral deed in ques-

tion, and by the fact that in the meantime the Notary

Public whose certificate was affixed to the mineral deed

in question, as well as Mrs. Lottie Kennemer, wife of

the Petitioner, C. B. Kenemer, had died, and their ver-

13

sions of the facts, therefore, was unavaliable. Neverthe-

less, the testimony of Petitioner Kennemer and his wit-

nesses, Davis and Craddock was conclusively discredited.

Senator W. D. Suiter testified to the effect that he had

discussed the matter with both Davis and Craddock sub-

sequent to the event, and that both of them had stated

to him that the transaction was regular in every particu-

lar. A portion of his testimony is as follows:

“Q. What did Mr. Craddock say with reference

to his participation in the preparation of that min-

eral deed and the description in it?

A. My recollection is he stated he prepared all

those instruments, and that he did not have any

recollection of having prepared this instrumertt, but

he supposed he did, because of having prepared all

of them, and he stated that he understood—this is

not the exact language—

Q. In substance.

A. In substance, that he was not present when

Mr. and Mrs. Kennemer came down there, and didn’t

know anything particularly about the execution of

that instrument.

Q. Did he state anything with reference to the

insertion of the field notes? Did he say anything with

reference to that in that conversation?

A. He said he didn’t remember when the field

notes were put in, that he didn’t have any distinct

recollection of that at all.” (R. Pages 168-169)

Q. Did you also have a conversation with Davis

about this mineral deed, about the Kennemer mineral

deed that is in controversy here, in Winnsboro?

SA eGR SRE BO ene

14

A. On that afternoon or maybe the next day

I was in the office with C. D. Davis and Mr. Crad-

dock, and we discussed the matter and Mr. Davis

stated, in substance, that he did not understand why

Kennemer had brought this suit, that this was ab-

solutely a fair and square deal, and Mr. Kennemer

got the money for his royalty, and the deed was

made to him, and he assigned it to Mr. Billington,

and so far as he knew there was no irregularity about

it in any way. In substance that’s what he said.” (R.

Pages 168-169)

The testimony of Mrs. Alice Niblack with reference

to a statement made by the witness Davis in her pres-

ence concerning the transaction in question, further re-

futes his testimony. Mrs. Niblack testified that Mr. Davis

made a statement which she reduced to writing prior

to the trial of this case in which Davis said the follow-

ing:

A. ‘It is now my recollection that I was not in

Winnsboro at the time Mr. Kennemer and his wife

came in to sign and acknowledge the mineral deed,

but that I was out in the country closing up some

other trades. I have no recollection of ever discussing

this matter with Mrs. Kennemer at all’.” (R. Pages

185-186)

The testimony of the Petitioner Kennemer is further

impeached by the testimony of the Respondent Gilbreath

who detailed a conversation between said parties a few

days after the transaction involved. We quote from such

testimony as follows:

15

“Q. Did Mr. Kennemer make any statement as

to where it was his wife was to be signed up?

A. He said it was prepared for her to sign at

Como.

Q. Did he make any further statement to you

as to how the transaction was concluded?

A. He said he had his wife go with him to Winns-

boro, and they went into C. D. Davis’ office to sign

the instrument and make the acknowledgment; that

neither Mr. Craddock nor Mr. Davis was there, and

that there was a Mr. Stevenson in there, and he and

his wife went before Mr. Stevenson and signed the

instruments, and Mr. Stevenson acknowldged the in-

struments in Winnsboro, and he received the check

from Mr. Stevenson.

Q. Did he say who gave him the check?

A. Yes.

Q. Who?

A. Mr. Stevenson, I think.

Q. Did he say anything about the field notes?

A. He said it was completed, the oil and gas lease

was completed, and that the mineral deed was com-

pleted; that he had taken the field notes down and

they were put into the deed.” (R. Page 196-197)

It is respectfully submitted that the foregoing excerpts

from the testimony in this cause adequately sustains the

action of both ‘he trial court and the Circuit Court of

Appeals in holding that under the evidence in this cause

Petitioners’ claim is unfounded in fact. To say the least,

BB i Soe te

16

it must be addmitted that the evidence is amply suffi-

cient to uphold the Findings of the courts below and to

negative the contention that such Findings are clearly

erroneous under the evidence.

In view of this situation Petitioners are in position of

having “begged he question” in undertakng to seek a

review of this cause by the Supreme Court on the ground

set forth in the Petition herein. Palpably the “question

presented” presupposes the finding that the mineral deed

in question was executed in blank and that same was

not properly acknowledged. Such, however, being con-

trary to the Findings of Fact by both courts below, there

remains no basis whatever for the submission of such

question. Conceding, for the sake of argument, that the

case of Drury v. Foster, 2 Wall. 24, 17 L. Ed. 780, by

the Supreme Court of the United States, and the case

of Robertson v. Vernon, 12 S. W. (2d) 991, by the Su-

preme Court of Texas, sustain the legal proposition con-

tained in Petitioners’ “question presented,” no necessity

here exists to chanllenge such holdings for the reason that f

same are not applicable to the facts in this case, as de- |

termined by the District Court and the Circuit Court of

Appeals.

CONCLUSION

It is, therefore, respectfully submitted that the Peti- ;

tion for Writ of Certiorari in this cause should be denied |

for the following reasons:

17

(1) The question presented in the Petition as the sole

basis for review of this cause by this Honorable Supreme

Court is one that was neither presented to nor decided

by the Circuit Court of Appeals;

(2) The only question presented in the Petition is

predicated upon an assumed state of facts which is con-

trary to the fact findings of both the District Court and

the Circuit Court of Appeals, which Findings are amply

supported by the evidence.

WHEREFORE, Respondents say that this cause is not

a proper one for review by Certiorari in this Court, and

they pray that the Petition for Writ of Certiorari herein

be in all things denied.

GALLOWAY CALHOUN

Counsel for Respondents,

Post Office Address:

Citizens National Bank Building,

Tyler, Texas

OF COUNSEL:

THOs B. RAMEY,

RAMEY, CALHOUN, MARSH, BRELSFORD, & SHEEHY,

Post Office Address:

Citizens National Bank Building,

Tyler, Texas.

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