No. 627. | Tex. App. | Sep 20, 1894
This is an appeal from a judgment of the District Court of Anderson County, rendered against appellants, in a suit of trespass brought by them for the recovery of 543 acres of land, the same being fractional parts of two surveys patented to the heirs of Carter T. McKinzie, and being the tract of land set apart and decreed to F.M. McKinzie upon partition of the estate of the said Carter T. McKinzie. F.M. McKinzie died in 1879, and the plaintiffs are his widow and his children. The defendant, U.M. Stafford, pleaded not guilty, the statutes, five and ten years' limitation, and tenancy in good faith. In support of his claim of title by purchase from the said F.M. McKinzie, the defendant offered in evidence as a duly recorded instrument, without offer or attempt to prove its execution otherwise, a deed which purports to be a conveyance from said McKinzie and his wife to defendant, for 200 acres of said land, with the following certificate indorsed thereon: "This day F.M. McKezie acknowledged that he signed the foregoing instrument for all the purposes and intentions therein contained. The above was acknowledged before me this the 7th day of September, 1870. E. Andrews, J.P. beat number 3, A. Co., ex officio notary public A. Co." To the introduction of this instrument the plaintiff objected on several grounds, and among others, that it was not shown that F.M. McKinzie acknowledged said instrument. This objection should have been sustained and the instrument excluded, but the objection was overruled and the paper admitted in evidence, and for this error the judgment must be reversed. The certificate of the officer, that "F.M. McKezie" appeared before him and acknowledged that he signed an instrument purporting upon its face to have been signed "F.M. McKinzie," was insufficient in law to authorize the registration of the instrument.
Upon further progress of the trial, the defendant, to support his pleas of limitation of five and ten years, offered in evidence the following deed duly recorded in the clerk's office of Anderson County on the 2nd of February, 1874, and bearing date January 6, 1874, and which conveys from Albert F. Hunt to the defendant 343 acres of the 543 acres sued for, and which describes the land conveyed as follows: "Three hundred and forty-three acres of land lying and being situate about six miles northwest of the town of Palestine, in the said county of Anderson, being a part and parcel of a tract of land of 543 acres, which included the homestead of F.M. McKinzie, being the Richard R. Power headright survey and the Max Salado grant, and more fully described by deeds of record in said county of Anderson, in the district clerk's office; said tract of land having been *125 conveyed to me by D.B. Luckey, by deed dated September 23, A.D. 1870, and recorded in pages 423 and 424 of book `N' of the record of deeds of Anderson County, Texas, to which reference is hereby `made' for a more full description."
The deed herein referred to from D.B. Luckey to the grantor, Hunt, is as indefinite in its description as is this deed from Hunt to the defendant. The plaintiffs objected to the introduction of the deed, because it purports to convey an undefined tract of land, and contains no data by which the land can be located; and because neither by its own recitals nor by reference to the recitals in any other deed does it give a description of the land by which it can be identified. The objections should have been sustained, but they were overruled, and the instrument admitted in evidence. The deed, in our judgment, is not sufficient in its description of the land conveyed to warrant its admission in evidence in support of either the plea of five or ten years limitation, nor was it competent to supply the defects in the description of this deed, as was done, by the parol testimony of the defendant.
In view of another trial it is proper to say, that upon proof of the execution of the purported conveyance from F.M. McKinzie to defendant for 200 acres of the land sued for, parol testimony of facts from which the 200 acres can be identified and located will be admissible. Upon proof by defendant of adverse possession for ten years of the remainder of the 543 acres, defendant will be entitled to recover 160 acres thereof, to include his improvements, unless he has had actual possession by inclosure of more than 160 acres, in which event he would be entitled to recover to the extent of his boundaries. The defendant's claim of title may be such as to authorize a recovery for the value of any permanent and valuable improvements made upon the premises.
For the errors indicated, the judgment of the lower court is reversed, and the cause remanded for another trial.
Reversed and remanded.