79 Tex. 310 | Tex. | 1891
Appellant's first assignment of error is to the effect that the court erred in overruling plaintiff's exceptions to defendant’s trial amendment setting up an agreed boundary and division line by acquiescence and estoppel, because there was no consideration for such agreed boundary; that the divisional line being certain of ascertainment, there could be no dispute or doubt concerning it as to form the basis of an agreed boundary;and because acquiescence alone will not suffice to fix a conventional line for a true one if the true one can'be ascertained, and the amendment disclosed no facts estopping plaintiff from recovering his land to the true line.”
The exception referred to was made to the original answer, “ wherein defendant set up an estoppel against plaintiff on account' of boundary by agreement and acquiescence, and says the facts alleged do not create an estoppel.”
The allegation in the original answer merely alleged that Herring more than thirteen years ago, then owner of the northwest half of the 10-acre lot, with the consent, acquiescence, and approval of defendant built a fence along a line which was then conceded and agreed to by said Herring and
The trial amendment was then filed by leave of the court, wherein it is alleged, in addition to what had been before alleged, that the true location of the lot was not well defined and known, and various surveys had left it uncertain. It was also alleged that “in consideration that Herring at his own expense would build a good and sufficient fence dividing said lot as then enclosed from east to west equally, it was agreed by and between defendant and said Herring that said fence should belong equally as a division fence of said lot to said Herring and defendant, and should be held as the true divisional line of said lot; that said fence was built in 1875 or 1876, and has ever since been held, regarded, and acquiesced in as the true division line until this suit was brought.”
We understand that where parties are in doubt as to where the true division line between them of their lands may be, they may fix it by parol agreement, which would be mutually binding upon them, even though they were mistaken as to its true locality. Where the parties knew where the divisional line was, such an agreement would not, it is said, be binding, because it would be a parol conveyance of land and contrary to the statute of frauds. 1 Wait’s Act. and Def., pp. 718, 719; George v. Thomas, 16 Texas, 89; Coleman v. Smith, 55 Texas, 259; Browning v. Atkinson, 46 Texas, 608, 609.
The true rule is stated by Judge Quinan in Coleman v. Smith, 55 Texas, 259. After exhaustive research, he says: “Whether the parties were right or wrong in their belief that the line they established was precisely where it ought to be was wholly immaterial. It is enough if there were doubt or dispute between them about it, and they determined to settle it upon that basis.” See the case and authorities there cited. We think the averments in the trial amendment as to uncertainty of the boundary sufficient to predicate an agreement upon fixing the division line between the adjacent owners.
The court below, in our judgment, did not err in overruling the exceptions to the trial amendment, because if the facts alleged were true as to the agreed division line it was binding upon Herring and his vendees.
The next assignment of error insisted on by appellant is that the court below erred in finding that defendant and plaintiff’s vendee, Herring, had established a divisional line by agreement binding on plaintiff, because the proof shows that the true line was easy of ascertainment, and that the agreement upon a line was a mutual mistake, both parties believing it to be the true divisional line; and because there was no consideration for the establishment of a line depriving plaintiff or his vendors of their land, because there were no acts of plaintiff or his vendors in regard to a division line to the injury of defendant.
We do not think the court erred in holding the agreement valid and binding on the parties, and that the court did not err in refusing to disturb it.
But suppose this question should be waived, and for sake of the argument it be admitted that there never was a division line made, and that plaintiff runs south of the fence as claimed, it seems to us clear that defendant should recover the disputed land on her plea of title by limitation under the statute of ten years as found by the court below.
There is no question but that defendant had had exclusive, adverse, and continuous possession, occupying and claiming the same as her own, for more than ten years before suit, and there is no question but that she had
But appellant says that defendant and her husband sold the land to Herring, under whom plaintiff claims, and warranted the title to him, and therefore she can not claim title by possession against her and her husband’s warranty but that the title so acquired (if it could be) would enure to the warranty. We can not agree to this. It had as well be said that the vendor can not disseize his vendee or acquire a title from him. He can acquire title from his vendee by limitation (Smith v. Montes, 11 Texas, 25, 26) where the deed is executed. Rawle on Cov., p. 398. The covenant of warranty will not defeat such title acquired after the deed. Such title is no breach of the covenant, which can not be extended to cover future laches of the vendee by which he loses the title conveyed to him. Stearns v. Henderson, 63 Mass., 497.
Finding no error in'the judgment of the court below, our conclusion is the same should be affirmed.
Affirmed.
Chief Justice Stay ton not sitting.