Spearman v. Mims, 207 S.W. 573

Spearman v. Mims

207 S.W. 573 | Tex. App. | 1918

Lead Opinion

WILLS ON, C. J.

(after stating the facts as above).

[1, 2] Of the seven assignments in appellant’s brief, five are pre'dicated on the failure of the trial court to find as facts certain matters specified. The complaints are on the theory that it was the duty of that court in making findings of fact to include “every particle,” quoting from the brief, “of material testimony in aid of limitation title.” It not only was not the duty of the court to do that, but it was his duty not to do it. His findings should have been of facts only, and should not have included evidence which he thought established as facts findings he made. Oldham v. Medearis, 90 Tex. 506, 39 S. W. 919; Thompson v. Mills, 45 Tex. Civ. App. 642, 101 S. W. 560; Gordon v. McCall, 20 Tex. Civ. App. 283, 48 S. W. 1111; Lumber Co. v. Hare, 61 Tex. Civ. App. 509, 130 S. W. 864; Barnes v. Riley, 145 S. W. 292. But, if the rule were otherwise, we would not be authorized to consider appellant’s complaints, because it does not appear from the record that he requested the court to make the findings he says the court should have made. Veatch v. Gray, 41 Tex. Civ. App. 145, 91 S. W. 324; Caplen v. Cox, 42 Tex. Civ. App. 297, 92 S. W. 1048; Hatton v. Lumber Co., 57 Tex. Civ. App. 478, 123 S. W. 163; Oil Co. v. Oil Co., 137 S. W. 171; Merriman v. Blalack, 57 Tex. Civ. App. 270, 122 S. W. 403.

[3] The other assignments are predicated on the trial court’s conclusions of law. We think the conclusion reached by the court that the deed from Hoyt to appellant was ineffective as a conveyance of the 110 acres mentioned therein, because it did not sufficiently describe the land, was warranted by the testimony. But we think the conclusion that the ten-year statute of limitations did not in any event begin to run in appellant’s favor until the Mason survey was corrected by the field notes made November 30, 1910, was incorrect. And, as it appears the action of the court in finding against appellant’s claim under that statute may have been due entirely to the erroneous view he took of the law, we think the judgment should be reversed and the cause remanded for a new trial. It appears from the record that the 49½ acres sued for were embraced in the original field notes of the Blasón survey made (May 24, 1861,. and in the corrected field notes made November 30, 1910 on which the patent issued. We see no reason why the ten-year statute of limitations should not have commenced to run in appellant’s favor when he took possession of the land, claiming to own it by virtue of the deed made to him by Hoyt, nor why, if he continued there-afterwards to occupy or use it, claiming it as his own, for a period of ten years, he did not acquire the title thereto. The reason stated by the trial court was that the heirs of Mason and their assigns were “in no plosition prior to the 30th day of November, *5751910 (the date when the corrected field notes were made), to maintain an action of trespass to try title against the plaintiff or any other trespasser on the land.” The contrary of the trial court’s view seems to he the law. Article 7742, Vernon’s Statutes; Udell v. Peak, 70 Tex. 547, 7 S. W. 786. In, the case cited the court said:

“Appellant contends that the statute of limitations could not commence to run against his title .until the patent issued in September, 1882, on the ground that the title remained in the state until that time. The land was surveyed by virtue of the Squire Mays headright certificate in 1841, and the patent finally issued for the land embraced in this survey. The original survey segregated the land from the public domain, and the state was ever afterwards powerless to resume control of it, and it having been appropriated by virtue of a valid certificate the equitable title was in the owner of the certificate, and the statute of limitation would run against such title.”

The judgment will be reversed, and the cause remanded for a new trial.

©=>For otlior cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Lead Opinion

Of the seven assignments in appellant's brief, five are predicated on the failure of the trial court to find as facts certain matters specified. The complaints are on the theory that it was the duty of that court in making findings of fact to include "every particle," quoting from the brief, "of material testimony in aid of limitation title." It not only was not the duty of the court to do that, but it was his duty not to do it. His findings should have been of facts only, and should not have included evidence which he thought established as facts findings he made. Oldham v. Medearis, 90 Tex. 506, 39 S.W. 919; Thompson v. Mills,45 Tex. Civ. App. 642, 101 S.W. 560; Gordon v. McCall,20 Tex. Civ. App. 283, 48 S.W. 1111; Lumber Co. v. Hare,61 Tex. Civ. App. 509, 130 S.W. 864; Barnes v. Riley, 145 S.W. 292. But, if the rule were otherwise, we would not be authorized to consider appellant's complaints, because it does not appear from the record that he requested the court to make the findings he says the court should have made. Veatch v. Gray, 41 Tex. Civ. App. 145, 91 S.W. 324; Caplen v. Cox,42 Tex. Civ. App. 297, 92 S.W. 1048; Hatton v. Lumber Co.,57 Tex. Civ. App. 478, 123 S.W. 163; Oil Co. v. Oil Co., 137 S.W. 171; Merriman v. Blalack, 57 Tex. Civ. App. 270, 122 S.W. 403.

The other assignments are predicated on the trial court's conclusions of law. We think the conclusion reached by the court that the deed from Hoyt to appellant was ineffective as a conveyance of the 110 acres mentioned therein, because it did not sufficiently describe the land, was warranted by the testimony. But we think the conclusion that the ten-year statute of limitations did not in any event begin to run in appellant's favor until the Mason survey was corrected by the field notes made November 30, 1910, was incorrect. And, as it appears the action of the court in finding against appellant's claim under that statute may have been due entirely to the erroneous view he took of the law, we think the judgment should be reversed and the cause remanded for a new trial. It appears from the record that the 49 1/2 acres sued for were embraced in the original field notes of the Mason survey made May 24, 1861, and in the corrected field notes made November 30, 1910 on which the patent issued. We see no reason why the ten-year statute of limitations should not have commenced to run in appellant's favor when he took possession of the land, claiming to own it by virtue of the deed made to him by Hoyt, nor why, if he continued thereafterwards to occupy or use it, claiming it as his own, for a period of ten years, he did not acquire the title thereto. The reason stated by the trial court was that the heirs of Mason and their assigns were "in no position prior to the 30th day of November, *575 1910 (the date when the corrected field notes were made), to maintain an action of trespass to try title against the plaintiff or any other trespasser on the land." The contrary of the trial court's view seems to be the law. Article 7742, Vernon's Statutes; Udell v. Peak, 70 Tex. 547,7 S.W. 786. In the case cited the court said:

"Appellant contends that the statute of limitations could not commence to run against his title until the patent issued in September, 1882, on the ground that the title remained in the state until that time. The land was surveyed by virtue of the Squire Mays headright certificate in 1841, and the patent finally issued for the land embraced in this survey. The original survey segregated the land from the public domain, and the state was ever afterwards powerless to resume control of it, and it having been appropriated by virtue of a valid certificate the equitable title was in the owner of the certificate, and the statute of limitation would run against such title."

The judgment will be reversed, and the cause remanded for a new trial.

On Appellees' Motion for Rehearing. From findings of the trial court it appears that there was a notation in pencil on the field notes of the Mason survey made May 24, 1861, as follows: "Does not close — error north 20 varas, error west 47 varas. October 8, 1861." It is insisted that it therefore appeared that the survey was not then a valid one, and hence that the conclusion of the trial court that the statute of limitations of ten years did not begin to run in appellant's favor until the survey was corrected by the field notes made November 30, 1910, was correct, because within the rule announced in Von Rosenberg v. Cuellar, 80 Tex. 249, 16 S.W. 58. But we think the fact that the survey may not have closed according to a calculation made of distances called for in its field notes would not have rendered it invalid. The calls were for objects specified as on the ground at distances indicated. If the objects would not have been reached at the distances called for, the survey would not for that reason have been invalid; but the distances called for would have been extended so as to reach the objects and so close the survey.

The motion is overruled.

Rehearing

On Appellees’ Motion for Rehearing.

[4] Prom findings of the trial court it appears that there was a notation, in pencil on the field notes of the Mason survey made May 24, 1861, as follows: “Does not close — error north 20 varas, error west 47 varas. October 8, 1861.” It is insisted that it therefore appeared that the survey was not then a valid one, and hence that the conclusion of the trial court that the statute of limitations of ten years did not begin to run in appellant’s favor until the survey was corrected by the field notes made November 30, 1910, was correct, because within the rule announced in Von Rosenberg v. Cuellar, 80 Tex. 249, 16 S. W. 58. But we think the fact that the survey may not have closed according to a calculation made of distances called for in its field notes would not have rendered it inr valid. The calls were for objeetsi specified as on the ground at distances indicated. If the objects would not have been reached at the distances called for, the survey would not for that reason have been invalid; but the distances called for would have been extended so as to reach the objects and so close the survey.

The motion is overruled.