Brown v. Kirk

236 S.W. 223 | Tex. App. | 1921

The assignments attacking the judgment as erroneous on the ground that the testimony did not warrant (1) the finding that a partition of the land was effected between appellant and R. L. Kirk and J. H. Kirk, and (2) the findings that the possession of R. L. Kirk of the 200 acres claimed by appellees Bertress Kirk and Mary Kirk, and of J. H. Kirk of 125 acres claimed by him, was "adverse" to appellant within the meaning of the statute of limitations, are sustained.

There was testimony sufficient to support a finding that appellant and R. L Kirk and appellee J. H. Kirk agreed that R. L. Kirk should take 200 acres, J. H. Kirk 125 acres, and appellant 325 acres of the 650 acres, but the testimony was not sufficient to support a finding that the part each was to take was so segregated and separated as to identify it, nor a finding that the parties, respectively, or either of them, took possession of any particular part of the 650 acres. The testimony was that appellant, a widow, and her four children, and R. L. Kirk, J. H. Kirk, Bertress Kirk, and Mary Kirk, her brothers and sisters, all lived together on the land, and cultivated and used the entire 650 acres for the purposes of a home. No one of them, so far as the testimony showed to the contrary, had more or different possession of the land, or any part of it, than either of the others had, until January 7, 1916, when appellant and J. H. Kirk undertook by their deed to convey 200 acres, more or less, thereof to R. L. Kirk. The description in said deed of land they undertook to so convey is set out in the statement above. It is insufficient, we think, when tested by the most liberal of rules applicable. It does not afford means for identifying the land so that its boundaries could be found on the ground with any degree of certainty. Young v. Gharis, 170 S.W. 796, 799; Sullivan v. Fant, 160 S.W. 612, 621; Gorham v. Settegast, 44 Tex. Civ. App. 254, 98 S.W. 665, 669; Coker v. Roberts, 71 Tex. 597, 9 S.W. 665, 667; Norris v. Hunt, 51 Tex. 609, 614. The deed being void, of course it was of no effect as support for any of the findings complained of. Therefore the situation of appellees Bertress Kirk and Mary Kirk was not different from that of appellee J. H. Kirk. Neither was entitled to a judgment awarding the recovery of a specific part of the 650 acres.

It follows from what has been said that not only should the assignments referred to be sustained, but all the others in appellant's brief (including the ninth, but only so far as it is that the court erred in rendering judgment for Bertress Kirk and Mary Kirk), except the third, fourth, and tenth, which are overruled, should be sustained.

The judgment is reversed, and the cause is remanded to the court below for a new trial.