Hunter v. Morse's Heirs

| Tex. | Jul 1, 1878

Moore, Associate Justice.

This suit, as originally brought, purports to be, as against appellants, an action of trespass to try title to 357 acres of land, a part of the league of laud originally granted to Allen C. Beynolds. Appellees, (plaintiffs in the court below,) in their petition, claim to be entitled to said 357 acres of land, which they purport to describe by metes and bounds in exhibit A, attached to the original petition, by and through a regular chain of conveyance to their ancestor, A. T. Morse, from B. M. Forbes, who is admitted to have formerly owned the entire Reynolds league, the chain of conveyance relied upon to establish their titles, as follows, to wit: (1) Deed from Forbes to J. A. Parker, dated March 16, 1855; (2) Letters from A. Parker to J. W. Lawrence, of March 12 and August 3, 1860, claimed to authorize Lawrence to sell and convey the land; (3) Deed from J. A. Parker and Louisa C. Parker, his wife, by J. W. Lawrence, to A. T. Morse, dated September 24, 1860.

If the judgment of the court rested on no other foundation than the averments of the original petition, it should be reversed. And if appellees relied solely upon the title of J. A. Parker, we would be forced to hold that the evidence was insufficient to warrant their recovery of the land adjudged them; for it is demonstrable, beyond all cavil, from the evidence set out in the statement of facts, that no land whatever is described in the original petition, or conveyed by said deed from Forbes to Parker, in so far as it relates to the land supposed to be sued for in the original petition; that the alleged boundaries of the supposed 357' acres of land,, for which suit was first brought, set forth in the petition and given in said deed, merely describe or trace a straight line across the league.

But the judgment before us is not based upon the allegations of the original petition, and is for another and altogether different parcel of land from that originally sued for, and supposed to have been described in the exhibit to the original petition. To the tract recovered, appellees deraigned title from Forbes by an entirely different chain of title than that shown by the deeds previously mentioned, and .with which they had no connection whatever; unless they tend, as appellees seem to think, to support the title upon which they really recovered. •

In an amended petition, filed August 8,1874, the plaintiffs, after reiterating the ownership of their ancestor, A. T. Morsé, as previously pleaded, say the land sued for “may not be a part of the tract described in exhibit A to them original petition, but may be, and more likely is, a part of said tract in exhibit B, a part of this amendment.” Exhibit B reads as follows: “ A part of a league of land granted to A. 0. Reynolds, situated in the county of Harris, and State of Texas, beginning on the south side of Buffalo bayou, at the northeast corner of said league; thence south along the east line of said league to its southeast corner; thence west 335 varas for a corner ; thence north to the south bank of Buffalo bayou for a corner ; thence down the meanderings of said Buffalo bayou to the place of beginning, containing 300 acres of land, more or less.”

This exhibit correctly describes the land occupied and held by appellants, and for which appellees got judgment. But appellants contend that neither the pleading nor proof warrant the judgment. They insist, that as appellees claim to have acquired their title to the land for which they sue by a deed from Parker and wife (by Lawrence, their attorney) to A. T. Morse, they were not entitled to recover on a title not supported by this deed. They also insist, that no other evidence of title was admissible under the allegations of their petition. If the original petition had not been further amended, this objection would certainly have been entitled to grave consideration; but on November 6,1874, plaintiffs, by leave of the court, again amended their petition, and, together with other things not necessary to mention, say: “ But said A. T. Morse also had held and owned a perfect title to the tract of land described in exhibit B to their amended petition, filed' August 8,1874, the same in which they pray for an order of survey; and that said A. T. Morse had held and owned said perfect title to said tract of 300 acres, more or less, by a regular chain of transfers and deeds from Robert M. Forbes down to him, (the links or papers, of copies thereof, which make said chain, will be shown to the court,) and that whatever right said A. T. Morse obtained under said deed, executed by said attorney in fact, (Lawrence,) supports and sustains the title of said Morse to said tract described iu said exhibit B to said amended petition.”

It plainly appears, that appellees, by this amendment, claim the land for which they got judgment by a different chain of title from that alleged in their original petition. Certainly, if they proved this averment they were entitled to judgment, whether the deed by Lawrence, as attorney for Parker, supported and sustained the title thus proved, or not. If appellees had a perfect title, it needed no support. A party may claim land under as many.different titles or chains of title as he can, or deems it to-his interest to acquire; but certainly a perfect title should not be excluded from the jury, because he may have mistakenly alleged in the petition that he has another title which supports and sustains the perfect title.

Let us, then, see whether appellees were entitled to the land adjudged them under this other title, set up in their amended petition. It was admitted, as we have said, that title to the entire league was at one time in E. M. Forbes; and all parties now claim and attempt to deraign title from and under him.

The first tract sold by Forbes, is that known as the Smith tract of five hundred acres. The next, is the Bailey or Dozier tract, purchased Hovember 17, 1849, by Bailey, and subsequently sold by him to Dozier. This tract is described in the deed as “ beginning at the northeast corner of a survey made for J. W. H. A. Smith, on the south bank of Buffalo bayou; thence south, along the east line of said survey, to the back or southern boundary line of the league; thence east, along said southern boundary line, to such point on said line that a line running due north, and parallel with the east line of the survey made for said J. W. H. A. Smith, and extended to the bank of Buffalo bayou, and thence with the meanderings of said bayou to the place of beginning, shall contain an area of nine hundred and twenty-eight acres.”

Notwithstanding it was admitted that the title for the entire league was in Forbes, as the deed to Bailey, was made by one Spilman, it seems probable that only the remainder of the league left after the sale to Smith and Spilman may have belonged to Forbes. This, however, is of no special moment.

. On March 16, 1855, Forbes made a deed to Parker, purporting to convey two tracts; the first, of three hundred and fifty-seven acres, described as follows: “ Beginning at a point on the bayou, which is the northwest corner of a tract of nine hundred and twenty-eight acres sold by me to J. S. Bailey, of the State of Virginia; thence westwardly, with the meanderings of the bayou, to the northeast corner of five hundred acres sold to J. W, 1ST. A. Smith by James Spilman ; thence south, with the east line of said tract, six thousand eight hundred and eighty-one varas, to the south line of the league; thence east with said south line, to the southwest corner of said tract of nine hundred and twenty-eight acres, so as to contain three hundred and fifty-seven acres.”

This is also the description given of the land sued for in the original petition; but, as is manifest from an inspection of the deeds to Smith and Bailey, no land is described by or included within these lines. The deed does not give the boundary of any land whatever; it merely describes a straight line across the league.

In .addition to this supposed tract of three hundred and fifty-seven acres, Forbes, by this deed, conveyed to Parker a tract described as follows, to wit: “ Beginning at the southwest corner of the league, thence north with the west line of the league, to the northwest corner of the league; thence down the mean derings of the bayou, to the northwest corner of said survey of five hundred acres; thence with the west line of said survey, to its southwest corner; thence due east with the south line of the survey of five hundred acres, to such point that a line due south and parallel with the west line of the league, extended to the south line of the same, shall contain an area of sixteen hundred and forty-three acres.”

February 20, 1860, this tract was sold and conveyed by similar metes and bounds, by Parker to A. T. Morse. But, on a survey, it was found that it is not necessary to run from the southwest corner of the 500-acre tract east any distance whatever, to include the quantity of land called for in the deed, but even where the line is continued on the same course as the west line of the Smith tract to the south boundary of the league, the tract contains 2,069, instead of 1,453, acres, as called for in the deed. Being a sale, however, by metes and bounds, all the land included within the calls, when run in accordance with the evident intention of the parties, vests in the grantee. Whether the grantor may have the deed can-celled, because the amount of land included in the boundaries is grossly in excess of that supposed and intended to be conveyed, or whether he is merely entitled to a corresponding increase in the stipulated price, (O’Connell v. Duke, 29 Tex., 299" court="Tex." date_filed="1867-01-15" href="https://app.midpage.ai/document/oconnell-v-duke-4890378?utm_source=webapp" opinion_id="4890378">29 Tex., 299,) we are not called upon to determine.

On the 21st of July, 1857, Forbes, in consideration of $5,000, sold and conveyed to Robert Mills “ all and singular a certain piece or parcel of land, containing 1,000 acres, situated and described as follows: In Harris county, and on Buffalo bayou, adjoining the city of Houston, being the undivided part of the league granted to Allen C. Reynolds.”

As it is upon this deed appellees rely to establish their title to the land for which they got judgment, it is necessary to determine what land, if aiiy, passed by it to Mills. An inspection of the previous conveyances, in connection with a survey of the league and the several tracts previously sold, shows that if the league contained its correct quantum of land, and the deed from Forbes to Parker had operated to convey two tracts of the number of acres and in the locality indicated, that there would have been just a thousand acres in the league still unsold when the deed to Mills was made, which might have been embraced either in one or two parcels—one immediately south of the Smith tract, and the other on the east side of the league, covering the land described in the judgment. But, giving its legal effect to the deed from Forbes to Parker, there would have remained only 931 acres unsold, the locality of which might have been the same as just stated.

The league, however, in fact, contained 4,963 acres. If we deduct the quantity actually conveyed by the previous deeds, there remained unsold at the date of the deed to Mills 1,466 acres; and if we deduct 8,428 acres, the quantity supposed by Forbes to have been previously sold, there remained 1,535 acres. In either case, the unsold portion of the league necessarily must have included the 300 acres recovered by appellees. How, certainly, there is a very great difference between the quantity of land'actually unsold and that which we must infer the parties to the deed supposed. But, as has previously, in effect, been said, if Forbes is satisfied, it does not lie in the mouths of strangers to complain. And although the deed is very carelessly and informally drawn, we think it must be construed to vest in the vendee all of the league remaining unsold at the date of the deed. Unless it is held to convey all of the unsold parts of the league, it can have no effect whatever; for there is nothing to give it application to one part or portion of the unsold or undivided part, as it is expressed in the deed, rather than another. The language of the deed plainly indicates that it was the intention of Forbes to convey to Mills all of the league which he supposed he then owned.

The only remaining question is,—Did appellees show title to the 300. acres claimed in their amended petition, which, as we have seen, vested in Mills ? This evidently depends upon the effect to be given to the adjustment of their conflicting, or supposed conflicting, interests, and the agreement to partition all the land outside of the Smith tract, entered into July 21,1866, between Sydnor, the vendee of Mills; Dozier, the owner of the Bailey tract; and A. T. Morse, who unquestionably owned all the land which had been legally conveyed by Forbes to Parker. At the date of this agreement, the title to this particular part of the league was unquestionably in Sydnor, to whom it had been conveyed by Mills.

Weither Parker, nor any one claiming under him, had, or then claimed to have,* any interest or title to it, by reason of conveyance from Forbes of the imaginary or supposed tract of 357 acres. Certainly, Sydnor’s right to convey to whom he pleased cannot be denied or questioned. Did he convey it to Morse ? Evidently he did not, by a regular deed of conveyance. But the agreement of partition, with the map attached and made a part of it, shows that such was his intention ; and that it was the understanding and probable belief of all the parties that the agreement for partition was sufficient to effect this intention, cannot, we think, be doubted.

The testimony shows, that, outside of Morse’s supposed equity as a purchaser from Parker of the 357 acres, for which Parker had no title, there was ample consideration to support the transfer to him of this 300-acre tract by Sydnor.

The agreement to partition, in. connection with the'map and the other evidence in the case bearing upon the question, is sufficient to estop Sydnor from denying that appellees are the equitable owners of the land, if the controversy was between them. If so, it is sufficient against appellants, who are mere occupants, without any valid legal or equitable title. Their only pretense of title is under the deed to Parker for the imaginary 357-acre tract, previously referred to.

Wo error being shown in the record of which appellants can complain, the judgment is affirmed.

Affirmed.