247 S.W.2d 422 | Tex. App. | 1952
This suit was an appeal to the District 'Court of Gregg County by writ of certiorari to the probate court of said county and had for its purpose the testing of certain orders of the probate court respecting the sale of appellant’s portion of a claimed 10.-64 acre tract of land in the John Ruddle Survey (hereafter referred to as the 10 acre tract). Appellant at the time the probate court entered the orders complained of was insane, with his father, N. E. Williams, as his guardian. Shortly before this suit was filed, however, he was declared sane. Trial was to the court without a jury and resulted in a judgment for appellees, upholding -all orders of the probate court sought to 'be set aside. To better illustrate the contentions of the parties and to show the 10 acre tract of land and those tracts adjoining it, the following map is inserted:
The trial court found upon abundant testimony that “in order to locate the 46.2 acre tract covered by the Sinclair oil and gas leasehold estate at the location claimed by plaintiff so that such tract would not include Sinclair wells No. 9, No. 15, and No. 16 (these wells are on the 10-acre tract), it would be necessary to adopt as the northwest comer of the Ruddle survey an unmarked point farther North from the Southwest corner of the Ruddle survey than the call distance of the west line of the Ruddle survey, and in this connection the trees called for at the northwest corner of the Ruddle survey have disappeared long ago, and in order to locate said 46.2 acre tract, as claimed by the plaintiff, by measuring the called distance of 1440 varas from such unmarked point for the northwest corner of the Ruddle survey it would be necessary to disregard the closer call for the northeast corner of the Welborne survey and also the location of the 46.2 acre tract as pointed out by Stinchcomb to Williams and as occupied by Williams, and the effect of such location as claimed by the plaintiff would leave only approximately 36 acres in the tract covered by the Sinclair lease instead of the 46.2 acres called for. Finally, the location of the 46.2 acre tract as claimed by the plaintiff is inconsistent with the calls in the description of the John R. Williams 16.4 acre tract described above herein, upon which John R. Williams and wife made a lease to C. D. Evans as set out above. The description of said 16.4 acre tract calls for the southwest corner of the John R. Williams 46.2 acre tract to be located at the northeast corner of the 16.4 acre tract and at the common corner of the southeast corner of the Welborne survey, the northeast corner of the McAn-
To adopt the point appellant claims as the northwest corner of the Rud-dle survey 1440 varas north of the beginning point and the southwest corner of the 46-acre tract, would reduce the acreage in the 46-acre tract by 10 acres, making the deed from Stinchcomb to him convey only 36 acres rather than the 46.2 acres called for, and would be over 90 varas short of the south fence pointed out to appellant by Stinchcomb as being the south boundary of the 46-acre tract. “In such state of facts quantity becomes a material circumstance.” Humble Oil & Refining Co. v. Ellison, 134 Tex. 140, 132 S.W.2d 395, 399 and cases there cited. Under the evidence in this case we conclude that the trial court was fully justified in finding that the small tract E, F, C, D, is a part of the 46-acre tract conveyed to appellant by Stinchcomb and that the oil and gas lease now held by appellee Sinclair Oil & Gas Company covers and includes the small tract.
Appellant asserts under several points that the trial court erred in finding that the sale by N. E. Williams, appellant’s guardian, of a part of the -claimed 10-acre tract E, F, C, D, was “fairly made for an adequate price and plaintiff was not injured thereby,” and that the trial court also erred in a finding that the sale and orders of the county court of Gregg County authorizing and confirming said sale are valid. It must be remembered that the guardian, as well as
. We haye, examined all other points brought forward 'by _ appellant, they are without merit and are overruled. .
Judgment of the trial court is affirmed.