67 Tex. 113 | Tex. | 1886
This was an action of trespass to try title, brought by M. Koenigheim against Jonathan Miles, Jonathan Miles, Jr. and J. W. Miles, and some forty other defendants. He recovered a part of the land sued for and claimed by the defendants named, but took nothing as against the others. He appeals from the judgment of the court below; and defendants Jonathan Miles, Jonathan Miles, Jr. and J. W. Miles also assign errors and bring a cross appeal.
The land sued for purports to be a part of survey number three hundred and twenty-three, patented in the name of John Brown, and the controversy seems to have grown out of a mistake as to the location of the north boundary line of that survey. The deed from one DeWitt to plaintiff, under which the latter claims, in describing the north boundary line of the tract conveyed, calls for “a rock bedded in ground on the north line of said survey Ho. 323,” as the extreme northeast of the tract, and then continues: “thence south 20 west 26x^¡- chains, to the upper corner on the
Under this state of title, with proper pleadings, it would seem that the correctness of this judgment could not be seriously questioned. But plaintiff has assigned many errors, some of which it will be necessary for us to consider. The first assignment is that: “The court erred in overruling plaintiff’s special exception to the defendant’s plea of innocent purchasers in good faith, because the said plea is too vague—does not mention the dates of such alleged purchases,' nor by whom and from whom made, and does not state the consideration paid.”
The averment in the answer to which exception was taken is as follows: “And further answering, they say that they are the legal and equitable owners of the premises sought to be recovered of them in this behalf; that they are innocent purchasers of the same in good faith without any notice of an adverse claim uiereto, and have paid a valuable consideration therefor in good faith without notice of adverse (claim), all which they are ready to verify.”
In the view we take of the case we are not called upon to decide whether the exception ought to have been sustained or not. All the defendants had pleaded a general denial and “ not guilty,” and the defendant Miles had, in addition, filed a plea in re-convention, which we will notice when we come to consider their assignments of error. The statement of facts shows that
The second assignment is that the court erred in admitting, over plaintiff’s objection, proof of the following facts: “ That survey Ho. 333, granted to John Brown, and whereof the premises claimed by plaintiff are a part, did not extend and include all the land conveyed by DeWitt to plaintiff, but that the true north boundary line of survey Ho. 333 was as found by the court and indicated by sketch found in statement of facts.”
The first proposition under this assignment is in substance that plaintiff having pleaded a special defense (it being the plea to which plaintiff excepted) his evidence should have been confined to that special defense. This proposition can not be successfully maintained. It is true that according to the rule indicated in Eivers v. Eoote, 11 Texas, 663, and since followed by this court, a defendant who has pleaded a special defense to an action of trespass to try title, will be confined in his defense to the special matter so pleaded; but we do not understand this rule as relieving the plaintiff from the necessity of his proving his title or to preclude the defendant from showing that the land in controversy is not embraced in the description contained in his deeds. The effect of the decisions upon this subject is to place a defendant in trespass to try title upon the same footing as to pleading and evidence, as defendants in other cases,, in the event he pleads specially and thereby waives his privilege under the statute of making his defense under the plea of not guilty. If this be correct it would follow that if he has pleaded a general denial and not guilty as well as specially he could show any fact in rebuttal of plaintiff’s testimony, but could not introduce evidence in confession and accordance as in bar of the action except as specially pleaded.
Plaintiff also urges a further proposition under this assignment, to the effect that defendant’s claiming title under a common source with plaintiff is estopped from denying the title under which he claims or to, show an outstanding title without connecting himself with it. But we think no grounds for
"Whereas, Bart J. DeWitt, of the county of Bexar, State of Texas, did on the-day of-A. D. 1877, make, execute and deliver unto me, M. Koeingheim, of the county of Bexar, State aforesaid, his certain deed of conveyance in and to survey Ho. 323, district Ho. 11, situated in Tom Green county, originally granted to John Brown by patent Ho. three hundred and fifty-nine, Yol. Ho. twelve, from the State of Texas, which deed of conveyance aforesaid is duly recorded in the said county of Tom Green; and whereas, said deed of conveyance was then made with a view of and understanding that a future deed be made by the vendor aforesaid unto me, the said Koeinheim, to a definite and particular portion of the survey aforesaid, and that thereupon I should reconvey unto the said DeWitt the remainder of which survey remaining after making a survey thereof, and delineating on a plot the particular lands to which I was entitled therein. And, whereas, the said subsequent deed of conveyance was duly made and executed and delivered to me by the said Bart J. DeWitt, on the 25th day of September, A. D. 1877.
"How, therefore, know all men by these presents, .that I, Marcos Koeingheim, of the State of Texas, county of Bexar, for and in consideration of the premises aforesaid, and in obedience to my obligation so to do, have granted, bargained, sold, released, conveyed and quit claimed, and by these presents do grant, bargain, sell, quit claim, release, convey and deliver unto him, the said Bart J. DeWitt, all my right, title, interest and claim in and to the said survey of land aforesaid, except, however, so much thereof as is mentioned and described in the last deed of conveyance, aforesaid, by him made, executed and delivered to me, as aforesaid, which deed bears date September the 25th, A. D. 1877and which is delineated particularly on the plot of said survey, to which reference is made in the last deed aforesaid.” We have no knowledge of the contents of the first deed referred to in the foregoing instrument, except such as may be derived from its recitals. We think, however, the purpose of the instrument was merely to show that plaintiff took title by the
The fifth and sixth assignments of error are as follows, and will be considered together:
Fifth. “The court erred in adjudging that the land occupied and claimed by the defendants [naming all the defendants ex
Sixth. “The court erred in adjudging against plaintiff costs of suit incurred by defendants mentioned in fifth assignment.”
These assignments are well taken. It is true that the evidence disclosed that none of the defendants named in the fifth assignment were in possession of any part of the land lying south of the true north boundary line of survey number three hundred and twenty-three, as established by the court in its judgment. But none of the defendants disclaimed as to any part of the premises sued for, and all pleaded to the action. This admitted possession or claim on their part to the entire tract described in the petition. (Rev. Stat., arts. 4794 and 4805.) The plaintiff showed title, as found by the court, to all the land claimed by him lying south of the line above named, and the judgment should have been against all of the defendants for all of the land to which he established his right and for the costs of the suit. (Rev. Stat., art. 4806.)
By the tenth assignment it is complained that the judgment of the court is not prayed for in the pleadings of defendants. This is not necessary to support such a judgment as was rendered. The plaintiff sued for a tract of land, and showed title to a part of it only. The judgment was that he recover such part, and that he take nothing as against defendants as to the remainder. Uo prayer in defendants’s pleadings was requisite to sustain such a judgment.
The eleventh assignment is that “ The judgment of the court adjudicates issues which are not made in the pleadings, to wit, the true location of survey number three hundred and twenty-three, and that all of the defendants except Jonathan Miles,. Jonathan Miles, Jr. and J. W. Miles, do not claim title south of such line.”
As to the first point, it is only necessary to say that the establishment of the boundary of the plaintiff’s land is necessary in every action of trespass to try title, where he establishes his f.la.im to only part of the land sued for; and is an issuable fact in such case, without any special pleading for that purpose. But as to the second point; assignment is well taken. As has been
The other assignments of error on part of appellant in the direct appeal, raise the same questions already passed upon in a ■different form and need not be considered.
We next proceed to discuss the assignment of error made in the cross appeal. The first is waived, and the second and third raise substantially the same questions. The second we here set out as follows:
“ The court erred in allowing the witness C. D. Foote to testify over the objection of defendant as to the land sued for by plaintiff after the plaintiff had introduced the deed from M. Koenigheim to Bart J. DeWitt, showing a reconveyance of his interest in said survey three hundred and twenty-three to Bart J. DeWitt, because said deed shows that plaintiff had divested himself of all title in and to survey number three hundred and twenty-three, and hence had no further right to contest this cause.”
The proposition offered in support of this is to the effect that the exception in the deed from plaintiff to DeWitt (a copy of which is above set out in this opinion) is repugnant to the grant, and is therefore void; that the grant being the entire survey, plaintiff had divested himself of all title to the land sued for; and that therefore no evidence as to the location of the lands was proper. The intention of the parties to this instrument, as to the extent of the premises conveyed, is quite apparent. Language could hardly make their meaning more clear. And it would be strange indeed if in a system of laws claimed to be the perfection of reason any rule could be found to justify a construction of this conveyance so repugnant to reason and justice as that claimed under this assignment.
The correct rule is thus stated in Sprague v. Snow, 4 Pickering, 54: “If there is an explicit and unambiguous grant of a thing, any exception or reservation which is manifestly contradictory is to be rejected, as if a man conveys twenty acres except one acre. But if a farm or tract of land is conveyed by general terms, an exception of one acre or any particular lot is not repugnant, but will be valid. The case of Cutler v. Tufts, 3 Pickering, 272, exemplifies the principle. There the conveyance was construed to be of a moiety, and in a subsequent clause the grantor said he meant to convey a fourth part. This was ob
The determination of one question is decisive of the fourth, fifth and sixth assignments of error under the cross appeal. The evidence clearly shows that the north boundary line of survey number three hundred and twenty-three is several hundred yards further south than it was supposed to be when the deed from DeWitt to Miles was executed, as has' previously been stated. The defendants who have assigned errors, pleaded in reconvention, and set up claim to the tract of land in the true northeast corner of survey number three hundred and twenty-three, which corresponded to the boundaries in their deed. Their plea contained the statutory elements • of an action to try title. Testimony was introduced by plaintiff to show that the land conveyed in the deed was situate in the northeast corner of the survey as it was then supposed to be, and not in the northeast corner of the survey as subsequently established, and it was sat
These appellants can n-ot shift the locality of their grant from the ground upon which it was originally laid out and designated to another place, merely because it is shown that its corner is not the true corner of the original survey called for.
The court did not err in admitting evidence to show the true location of the land described in the deeds under which these appellants claimed; and it being found that the deed of the plaintiff in the court below, which was older than that last mentioned, embraced all the land in controversy lying south of the true north boundary line of survey number three hundred and twenty-three, it did not err in giving him judgment for the land extending to that line.
We find no error so far as the appellants in the cross appeal are concerned. But the court below having erred in not giving judgment against all the defendants for all the land claimed by him in his petition to which he was found to have title, and also in not giving judgment against all of them for costs, the judg
Reversed and rendered.
Opinion delivered December 10, 1886.