RANDOLPH v. LEWIS
Court of Civil Appeals of Texas. Austin.
Nov. 12, 1913
On Motion for Rehearing, Feb. 18, 1914
163 S.W. 647
We do not think the issue of estoppel is raised by the evidence. It is not shown that appellees, or any of their predecessors in title, at the time they purchased the 137 acres, had any knowledge of the fact that any one claiming under the sheriff‘s deed claimed that the land thereby conveyed was located at any place other than where the description in said deed placed it.
[6] The fact that Southmayd, as notary public, took the acknowledgment of Hunnings to the deed to James Morgan does not show that he was aware that the 137 acres conflicted with the 200 acres conveyed to him by the sheriff‘s deed. He was not required, as such officer, to read the description of the land conveyed by the deed. If, however, he had read the description and knew of the conflict, the mere fact that he took the grantor‘s acknowledgment to the deed would not estop him, It was his duty as notary public to take the acknowledgment when requested by the grantor, and an estoppel against him cannot be based on that fact alone.
[7] There is no merit in appellees’ contention that the execution under which the 200 acres was sold was functus officio. This contention is based on the fact that a special term of the district court of Harris county intervened between the date the execution was issued and the date of sale thereunder. We think the law in force at the time this execution was issued, which required that it be returned before the next term of the court, referred to the next regular term of the court, and the execution was not returnable to the special term.
[8] Besides this, the act authorizing the holding of the special term provides that it shall be “deemed and considered the fall term of said district court for the year 1843,” which had not been held because of the sickness of the judge, and that all process issued and returnable to said fall term should be made returnable to the special term. Gam. Laws, vol. 2, pp. 916, 917. The execution in question was issued after the date for the regular fall term, and before the passage of the act creating the special term; and, as that act only made process originally returnable to the preceding fall term returnable to the special term, we think that process, issued after said fall term, and not returnable thereto, was not returnable to the special term.
[9] The clerk of the district court was authorized to issue the execution upon the judgment rendered in the county court under the act of January 20, 1839 (2 Gam. Laws, 91) which changed the jurisdiction of the county courts, and provided that all process theretofore issued by the county courts in which the amount exceeded $100 should be returned by the judges and clerks of the county courts to the district court. This statute is very clumsily written, and its meaning might well be considered doubtful, but it has been expressly held by our Supreme Court that, in the cases mentioned of which the county court was relieved of jurisdiction, this statute required that the same be transferred to the district court, and conferred upon that court jurisdiction of such cases. Campbell v. Townsend, 26 Tex. 514. This decision is conclusive of the authority of the district clerk to issue the execution in question.
We are of opinion that the judgment of the court below should be reversed, and judgment here rendered for appellants, but this judgment is not to affect appellees’ title to any portion of the 137 acres claimed by them which may not be in conflict with the 200 acres claimed by appellants as same is located by the description in the sheriff‘s deed under which appellants claim.
Reversed and rendered.
RANDOLPH v. LEWIS.
(Court of Civil Appeals of Texas. Austin. Nov. 12, 1913. On Motion for Rehearing, Feb. 18, 1914.)
1. ADVERSE POSSESSION (§ 80*) - DEEDS-SUFFICIENCY OF DESCRIPTION.
In a suit in trespass to try title, a deed was properly admitted in evidence in support of defendant‘s plea of five-year limitation, though it incorrectly stated the certificate number and the name of the original patentee, where the land could be otherwise located from its recitals.
[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 463-467; Dec. Dig. § 80.*]
2. EVIDENCE (§ 333*)-ADMISSIBILITY-PUBLIC RECORDS-“ASSESSOR‘S ABSTRACT” TRESPASS TO TRY TITLE.
The assessor‘s abstract, being a public record within
[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1247-1257, 1259-1265; Dec. Dig. § 333.*]
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep‘r Indexes
In trespass to try title, the admission in evidence of the assessor‘s abstract, if erroneous because not referred to in the deed offered by defendant in support of his plea of five-year limitations, is harmless, where the land is otherwise sufficiently identified.
[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]
4. ADVERSE POSSESSION (§ 16*) - ACQUISITION OF TITLE-SUFFICIENCY OF USE.
Where the purchaser of land immediately placed his deed on record, inclosed the land, and continuously used it for more than five years as pasture for stock, and paid taxes thereon, he acquired title under the five-year statute of limitations.
[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 82-89; Dec. Dig. § 16.*]
5. ADVERSE POSSESSION (§ 95*) TITLE TO REALTY-ACQUISITION-PAYMENT OF TAXES-EVIDENCE.
Payment of taxes, when relied on as the basis of title by five-year limitations, may be shown by parol or circumstantial evidence.
[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 530-532; Dec. Dig. § 95.*]
6. DEEDS (§ 38*) DESCRIPTION OF LAND SUFFICIENCY.
That a description in a deed does not entirely inclose the land will not invalidate the deed, where it otherwise sufficiently identifies the land.
[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 65-79; Dec. Dig. § 38.*]
7. ADVERSE POSSESSION (§ 19*)-ACQUISITION OF TITLE-SUFFICIENCY OF POSSESSION.
Merely that one side of a tract of land, to which defendant in trespass to try title claimed title under the five-year statute of limitations, was not fenced, but was bounded by a river, could not defeat defendant‘s claim.
[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 99-105; Dec. Dig. § 19.*]
8. ADVERSE POSSESSION (§ 19*) - ACQUISITION OF TITLE-SUFFICIENCY OF POSSESSION-SEPARATE INCLOSURE.
It is not essential to the acquisition of title under the five-year statute of limitations that the land be separately inclosed, but is sufficient that there be a general inclosure; even though other surveys are included therein.
[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 99-105; Dec. Dig. § 19.*]
Appeal from District Court, Madison County; S. W. Dean, Judge.
Trespass to try title by R. J. Randolph against C. H. Lewis. From a judgment for defendant, plaintiff appeals. Affirmed.
Randolph & Randolph, of Madisonville, for appellant. E. A. Berry and J. M. Brownlee, both of Madisonville, for appellee.
RICE, J. Appellant brought this suit in trespass to try title against appellee for 369 acres of land in Madison county, patented to Samuel Bogart, assignee of John W. Holman, on February 14, 1852, by virtue of certificate 347. Appellee relied alone on the plea of the five-year statute of limitation, which was sustained, and judgment entered for him for the land, from which this appeal is taken.
The case being tried without a jury, the court filed its conclusions of fact and law, and the questions relied upon for reversal relate to supposed errors in the rulings of the court in the admission of testimony, and urge that the findings of fact are, for several reasons, insufficient to support the judgment, each of which will be considered.
[1] The first assignment questions the correctness of the court‘s ruling in admitting in evidence, over appellant‘s objection, the deed from Donohoe to Lewis, which was offered by appellee in support of his plea of five-year limitation, the objection being that said deed did not embrace the land in controversy, and because the description was insufficient to identify the land, and therefore the same was not a deed duly registered, as required by law; the contention being that there was such a variance between the description of the land in the patent and that in the deed offered in evidence as to defeat appellee‘s right to rely upon the latter as basis for support of his plea of limitation.
The land was patented to Sam Bogart, as assignee of John W. Holman, by virtue of certificate No. 347, containing two and a fraction labores of land, located on the east side of the Nevasota river, described by metes and bounds; whereas, said deed conveys all that certain tract or parcel of land in said county and state, being 360 acres, patented to John W. Holman, abstract No. 116, certificate 516, vol. 9, as shown by the land records of Madison county, bounded on the south by the Geo. L. Ramsdale, and on the east by the A. G. Wynne, and on the north by another survey of the G. L. Ramsdale, and on the west by the Navasota river. This deed was filed for record in the deed records of Madison county on the 30th of November, 1905, and recorded December 30, 1905. The assessor‘s abstract of Madison county, which was offered in evidence, shows the certificate number to be 347, and it was issued to Sam Bogart, and the patent made to John W. Holman. The county map of Madison county, which was agreed to be correct, and which was offered in evidence, shows that the J. W. Holman survey lies on the east bank of the Navasota river, and is bounded by the surveys named in the deed, except that the Wynne forms all of the east and a small portion of the north boundary; and the surveyor testified that he could locate the land in question by the description given in the deed, and that the Wynne and the two Ramsdale surveys, called for in the deed, were located long prior to the date of the deed from Donohoe to Lewis.
We think the deed sufficiently describes the land, irrespective of the slight discrepancies as to the certificate number and the name of the original patentee, which may be regarded as surplusage, since the land can be otherwise located by the recitals in the deed. In Bowles v. Smith, 34 S. W. 382, it is said:
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep‘r Indexes
Notwithstanding there is a discrepancy between the patent and the deed as to the certificate number and the name of the patentee, still, in the present case the land was otherwise sufficiently described in the deed, we think, to put the owner upon notice that the land was being claimed by appellee, because, disregarding these recitals, the land was so otherwise described in the deed as to identify it with that owned and claimed by appellant. This being true, the court did not err in admitting the deed for the purpose offered. See Stout v. Taul, 71 Tex. 438, 9 S. W. 329; Cleveland v. Smith, 156 S. W. 247; also Griffin v. Houston Oil Co., 149 S. W. 567; Clifton v. Creason, 145 S. W. 323; Eastham v. Gibbs, 125 S. W. 372.
[2, 3] Notwithstanding there was no reference in the deed to the assessor‘s abstract, there was no reversible error in its introduction over appellant‘s objection. It is a public record, and under
[4] The court did not err, we think, in finding as a fact that the defendant had used and enjoyed the land for a sufficient length of time, under deed duly registered, as to give him title to the land under the five-year statute of limitation. The evidence showed that the appellee, immediately after purchasing the land, placed his deed upon record, inclosed the land, and had continuously used it for a period of more than five years as a pasture for cattle, hogs, and goats, paying taxes thereon. Such user is sufficient to show adverse possession. See Hooper v. Acuff, 159 S. W. 934. Pasturing cattle on land inclosed for that purpose, and which is under the exclusive control of the party claiming under the statute, is such use and enjoyment as is sufficient. Hardy Oil Co. v. Burnham, 124 S. W. 221.
[5] The evidence fully supports the court‘s finding that the defendant had rendered and paid taxes on the land in controversy for more than five years prior to the commencement of this suit, and was therefore adequate to support his plea of limitation, for which reason we overrule the fourth assignment. Payment of taxes may be shown by parol or circumstantial evidence. See Dutton v. Thompson, 85 Tex. 115, 19 S. W. 1026; Watson v. Hopkins, 27 Tex. 637; Ochoa v. Miller, 59 Tex. 460; Allen v. Woodson, 60 Tex. 651.
[6] It is not necessary that the boundaries in the deed should entirely embrace and inclose the land; a slight failure in this respect would not vitiate the deed, provided the land therein mentioned is otherwise sufficiently described to locate and identify it.
[7] The court did not err in its conclusion of law in holding that the defendant was entitled to the land in controversy under the five-year statute of limitation, for the reason that the facts as found by the court and sustained by the record fully warranted his conclusion that defendant‘s possession was adverse, and that he was entitled to the land under his plea of limitation. This is true notwithstanding the fact that one side of the survey was not fenced, but was bounded by the Navasota river. See Frazer v. Seureau, 128 S. W. 649; Dunn v. Taylor, 107 S. W. 956; s. c., 102 Tex. 80, 113 S. W. 265.
[8] Nor was it necessary that the land itself should be separately inclosed. It is sufficient if there is a general inclosure, even though other surveys are included therein. See Smith v. Kenney, 54 S. W. 801; Cunningham v. Matthews, 57 S. W. 1115.
Finding no error in the proceedings of the trial court, and believing that the judgment is amply supported by the facts in evidence, it is in all things affirmed.
On Motion for Rehearing.
In his motion for rehearing, appellant has cited and quoted from a number of cases, insisting that they support his contention to the effect that the deed from Donohoe to Lewis was insufficient to support the plea of the statute of limitation of five years; and we will review them for the purpose of showing that they do not militate against the doctrine announced in our opinion, to the effect that, even where there are slight inaccuracies regarding the number of the certificate, name of the surveys of patentee, etc., yet if the description otherwise given so identifies the land as to give notice to the owner that the defendant in possession is claiming the same, it is sufficient.
In the case of Clark v. Kirby, 25 S. W. 1096, it appears that the deed relied on by defendants to support the plea of limitation
In Williams v. Thomas, 18 Tex. Civ. App. 472, 44 S. W. 1073, the description in the deed was, “The west one-half of the W. N. Morris survey,” whereas the land in controversy was the W. U. Morris survey; no field notes were given. It was held that the description was insufficient, and that it did not identify the land.
In Wofford v. McKinna, 23 Tex. 36, 76 Am. Dec. 53, the deed was held void for want of description, it being ambiguous, and was not sufficient to support the plea of limitation.
In Brokel v. McKechnie, 69 Tex. 32, 6 S. W. 623, the deed contained no other description than the number of the survey, which was misdescribed, and the name of the patentee. This, of course, was held insufficient, and that parol evidence was not admissible to explain such misdescription.
In Murphy v. Welder, 58 Tex. 235, the court said that the deed did not describe the land with sufficient certainty to meet the requirements of the statute. Besides this, it also held that the proof failed to show payment of taxes and adverse possession, as required.
In Cook v. Oliver, 83 Tex. 559, 19 S. W. 161, this description was held insufficient: “450 acres of land situated in Houston county, on the east bank of the Trinity river, and the same known as the Brookfield Bluff Place, and the same now occupied by said Murphy * * * and the field notes as made by W. M. James are hereby made a part of this transfer.” The field notes were not given.
In Flanagan v. Boggess, 46 Tex. 330, the following description was held sufficient: “620 acres of the headright of David Brown, situated about 12 miles north of Henderson in the neighborhood of Bellview“; the court remarking: “The deed in the case before us does not purport to convey an undefined part of a larger tract of land, as in the case of Wofford v. McKinna, supra. The ‘620 acres of the headright of David Brown’ may be all of the D. Brown headright located in that survey; the balance being elsewhere. Or, if we look to evidence where we find a patent calling for 640 acres, we also find that the land was given in as 620 acres, and it may be that the latter is the real number of acres. In either case the description is not of an uncertain part of a tract of land, but of an entire tract. The name of the headright and the locality, with the number of acres of the survey, fixed the land as definitely as seems to be necessary to satisfy the statute until there is evidence showing the contrary.”
In Kilpatrick v. Sisneros, 23 Tex. 113, the deed was held bad for uncertainty of description and the false reference, the court saying: “The object of the statute in prescribing registry of the deed, as necessary to enable the possessor to avail himself of the five-year limitation, is to give notice to the owner that the defendant in possession is claiming under the deed. And if there is such falsity or uncertainty of description as that it will not answer the purpose intended, it cannot be considered a deed duly registered, within the meaning of the statute.” There was a failure also to prove adverse possession during the period of limitation.
In Young v. Trahan, 43 Tex. Civ. App. 611, 97 S. W. 147, the description of the land is not contained in the report.
In Ozee v. City of Henrietta, 90 Tex. 337, 38 S. W. 768, the description was likewise held insufficient, the court stating that it was lacking in those elements of accuracy and certainty which are required in a conveyance made by an officer under a naked statutory power to sell and convey property for the enforcement of the collection of taxes, citing Wofford v. McKinna and Kilpatrick v. Sisneros, supra, saying that they seriously doubted whether it was sufficient as a conveyance between parties acting in their own right. “A portion of a tract of land of which the original grantee is ‘R. R. Add.’ or railroad addition, if the abbreviations mean that, does not describe a part of an addition to a city, which is known as railroad addition, and of which W. G. Eustis is original grantee. It may be that where, even in a tax deed, a tract or lot of land is clearly and accurately described otherwise, descriptive words false in one particular may be disregarded. But if we strike out the false description in the deed in question, we have substantially nothing left but the words ‘block 23,’ which manifestly is uncertain. The only words to show what ‘block 23’ is meant point to some other ‘block 23,’ and not to that found in Eustis railroad addition to the city of Henrietta. If intended to designate the latter block, the description is false as a whole, and the deed not sufficient to operate as a conveyance of the property intended.”
In Mars v. Morris, 48 Tex. Civ. App. 217, 106 S. W. 430, the clause in the deed did not embrace the land in controversy; hence the court properly held that the deed was insufficient as a basis for the plea of limitation.
In Berrendo Stock Co. v. Kaiser, 66 Tex. 352, 1 S. W. 257, no other description was given, except the number of the survey and the quantity; the deed was held insufficient.
The rule as gathered from our decisions seems to be that, if the land in possession of defendant is sufficiently described in the deed relied on to support the plea, as to give notice to the owner of such claim, then it is suficient; and this is true notwithstanding the fact that there may be some other references in the deed that are untrue and misleading, which may be rejected as surplusage, such as the number of the survey, name of the patentee, and the like. See McCurdy v. Locker, 2 Tex. Civ. App. 222, 20 S. W. 1109.
After a most careful consideration of the motion, we are of the opinion that the deed assailed is sufficient under the statute; and therefore it becomes our duty to overrule the motion for rehearing.
Motion overruled.
CHRISMAN v. LUMBERMAN‘S NAT. BANK et al.
(Court of Civil Appeals of Texas. El Paso. Feb. 5, 1914.)
1. BANKS AND BANKING (§ 127*)-DEPOSITS-PROTESTED CHECK-ACTIONS-RIGHT TO SUE.
Where a check is deposited in a bank to the credit of the depositor‘s general account, the bank becomes the owner of the check, and on the maker‘s refusal to pay, on a mere claim of fraud, the bank may sue thereon, treating the payee as an indorser only, though the depositor‘s account exceeded the amount of the check; the bank not being required to charge the check back to the depositor and return the same to him.
[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 304, 310; Dec. Dig. § 127.*]
2. APPEAL AND ERROR (§ 750*)-ASSIGNMENTS OF ERROR-PROPOSITION.
Propositions as to alleged error of the court in overruling a plea of privilege to be sued in another county were not germane and could not be considered under an assignment of error to the court‘s action in rendering judgment on the merits on the ground that the verdict and judgment were contrary to the law under the facts proved.
[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. § 750.*]
3. APPEAL AND ERROR (§ 743*)-REVIEW-EXCLUSION OF EVIDENCE-BILL OF EXCEPTIONS.
Alleged error in the exclusion of evidence will not be reviewed, where the Court of Appeals is not referred to any bill of exceptions covering the matter; the court not being required to search the record to ascertain if proper bills were taken.
[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.*]
Appeal from Harris County Court; Clark C. Wren, Judge.
Action by the Lumberman‘s National Bank and others against J. J. Chrisman. Judgment for plaintiffs, and defendant appeals. Affirmed.
C. W. Nugent, of Conroe, for appellant. W. H. Ward and J. V. Meek, both of Houston, for appellees.
HIGGINS, J. This is a suit by the Lumberman‘s National Bank against J. J. Chrisman, of Montgomery county, and Walter R. Jones, of Harris county, brought in the county court at law of the last-mentioned county upon a draft in the sum of $600 drawn by Chrisman in favor of Jones upon Banks, Griffith & Sons, of Conroe, Montgomery county, given by Chrisman in part payment for an automobile sold to him by Jones. The draft is dated on Saturday, August 5, 1911, and some time after banking hours upon that date same was transferred and delivered by Jones to appellee, and on the following Monday morning the amount thereof was passed to the credit of Jones, who was a regular customer of appellee and carried an account with it. On Monday morning Chrisman stopped payment of the draft, and notice of this fact was communicated on Monday morning to appellee by Banks, Griffith & Sons. From the date payment was stopped until subsequent to the filing of this suit, defendant Jones had on deposit with appellee to his credit funds more than sufficient to cover the amount of the draft. Chrisman filed a plea of privilege, claiming the right to be sued in the county of his residence. The cause, upon its merits, was tried upon his second amended original answer, which consists of exceptions, a general denial, and the allegation that he “adopts all and singular, all of the matters and things set out in his first amended original answer filed herein on, to wit, the 18th day of May, A. D. 1912, this adoption being by and with the consent and agreement of counsel for plaintiff and of the defendant, W. R. Jones, and prays as in first amended original answer.” Since his first amended original answer, filed May 18, 1912, is not in the record, we are not advised as to the issues raised thereby. Jones filed an answer setting up that his liability upon the draft was as an indorser only, and asked for judgment over against Chrisman. The cause was tried before a jury and submitted upon special issues.
[1] By reason of the omission from the record of Chrisman‘s first amended answer, as noted above, we are unable to determine accurately the issues upon which the cause was tried; but we gather from the court‘s charge that Chrisman pleaded a failure of consideration, in that the automobile purchased from Jones, and for which the draft was given, did not comply with certain representations made by Jones to Chrisman with respect thereto. In response to the issues submitted, the jury found against the appellant upon this contention, and judgment was rendered in favor of the bank against Chrisman and Jones, and in Jones’ favor over against Chrisman. From this judgment, Chrisman has appealed. His first assignment of error reads: “The court erred to the prejudice of this defendant in refusing to set aside the verdict and judgment rendered herein against this defendant, because said verdict and judgment are contrary to the law applicable to this case and the facts herein, and neither is supported or justified by the law or by the evidence in said cause, because: It is admitted by plaintiff that defendant Jones had money in its bank from the time it cashed the check sued on more than sufficient to cover said draft contin-
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep‘r Indexes