Universal Home Builders, Inc. v. Farmer

• Decision Date: 13 February 1964
• Docket Number: No. 22,22
• Citation: 375 S.W.2d 737
• Parties: UNIVERSAL HOME BUILDERS, INC., et al., Appellants, v. W. E. FARMER, et ux., Appellees.
• Court: Texas Court of Appeals

Page 737

375 S.W.2d 737

UNIVERSAL HOME BUILDERS, INC., et al., Appellants, v. W. E. FARMER, et ux., Appellees.

No. 22.

Court of Civil Appeals of Texas, Tyler.

Feb. 13, 1964.

Jay M. Goltz, Weinberg & Sandoloski, Arnold N. Sweet, Dallas, for appellants.

Wm. Andress, Jr., Dallas, for appellees.

DUNAGAN, Chief Justice.

This is a suit brought by appellees (plaintiffs) in trespass to try title. Appellants (defendants) answered by plea of not guilty and other defensive pleas not involved on this appeal. The case was tried to the court without the aid of a jury. Judgment was entered for the plaintiffs. No findings of fact or conclusions of law were filed, and no request for such filing was made. There is a stipulation in the record by and between the attorneys for the parties that this case was heard before the court, no jury having been demanded, all parties agreed that there were no issues of fact in this cause and that the same should be submitted to the court upon written instruments and copies thereof, and that the court would try only the questions of law in the case. The stipulation further states that various deeds, copies of deeds, certified copies of deeds, plats and surveys, were submitted to the court to aid the court in its decision as to the law of the case. The parties agreed in open court that said deeds, copies of deeds, plats and surveys could be used in lieu of originals and were accepted as true and correct. The stipulation further recites that a list of said instruments, prepared by Miss Edith C. Davis, Court Reporter, is attached hereto and made a part hereof. A list of the exhibits introduced was made a part of the stipulation.

By a stipulation and agreement of the parties at the time of the trial of this case in the court below, the sole evidence submitted to the court consisted entirely of various deeds, copies of deeds, certified copies of deeds, plats and surveys, which are now shown to be before the court as a part of the record in this case. There was no oral testimony or any other character of evidence offered, except that above mentioned. All of the exhibits that were submitted to the court are now before this court as original exhibits pursuant to an order of the Trial Court. There is no statement of facts on file in this case with this court.

Appellants' points of error one and two are:

'first Point of Error

'APPELLANTS, HAVING PROVED A PRIMA FACIE CASE BY SHOWING TITLE FROM A COMMON SOURCE, AND HAVING SHOWN SUPERIOR TITLE, ENTITLED TO JUDGMENT.

'Second Point of Error

'THE SOURCE OF APPELLEE'S TITLE TO THE DISPUTED TRACT WAS GRADY WALL, A SOURCE INDEPENDENT FROM THE COMMON SOURCE OF THE PARTIES' TITLES, AND THERE WAS NO EVIDENCE AS TO THE SUPERIORITY OF SUCH SOURCE.'

W. Alexander Scott, Sr., owner of Tract F-K-L-C-H-G-F, is the common source of title, both appellants and appellees having obtained their chain of title from him. Appellees' chain of title is through conveyances from Scott, et al. to Grady Wall, ¹ and Grady Wall to W. E. Farmer and wife, ² appellees. The deed into appellees, being the last deed in their chain of title from the common source, allegedly creates a conflict involving a triangle of land 1,000 feet long and 30 feet wide along appellants' north line (triangle K-O-X), which is the area in dispute. Appellants contend that the question is one of title rather than boundary and appellees contend that it is a question of boundary rather than title. Be that as it may, we think this question is not important to a proper disposition of this case.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Grady Wall, the immediate grantor of appellees, deeded a part of his original tract to appellees, W. E. Farmer and wife, Ora Jane. There was a call for parallelism in such deed from Wall to the Farmers for the first time which gives rise to appellees' claim to the land in dispute. Appellees contend that the parallel call in the Farmer deed would make Farmers' south boundary run North 89~38' East rather than the actual call in the Farmer deed of North 88~45' East. The Trial Court held that appellees' true south boundary, being appellants' north boundary, ran South 89~ 38' East. The call in the description of the land in the deed from Wall to the Farmers, which has brought about the dispute between the parties to the land in question, is 'THENCE N. 88 deg. 45 min. E. and parallel with the S. line of said J. F. Nelson 5 acre tract, 1000 ft.' (Emphasis supplied). The south line of the Nelson tract calls for a course of North 89~ 38' East. If the parallel call in the deed from Wall to the Farmers controls over the call for course and distance as contended by appellees, it would include the land in controversy. The deeds from the parties' common source in their respective chains of title, with the exception of the Wall to the Farmers deed, describe the north boundary of appellants' tract and the south boundary of appellees' tract as being South 88~ 45' West, or conversely, North 88~45' East without reference to any other muniment. Appellants say 'there being no conflict in the first deeds from the common source, a fortiori, appellants have title to the land below line K-L (area in controversy). The deed from appellees' immediate grantor, Grady Wall, described the boundary line in question in a different manner. Appellants, having assumed and met the burden of showing title deraigned from a common source, are entitled to judgment for title and possession.' With this contention, we agree. The rule as to a common source of title is that, where a party has proved that he and the other party claim title to land from a common source and that he has superior title, he shows a prima facie right to recover. Howard v. Masterson, 77 Tex. 41, 13 S. W. 635; Rice v. St. Louis, A. & T. Railway Co., 87 Tex. 90, 26 S.W. 1047; Temple Lumber Company v. Arnold, Tex.Civ.App., 14 S.W.2d 926; Roberts v. Blount, Tex.Civ.App., 120 S.W. 933.

Appellees' claim to the disputed tract springs from a description in their deed from Grady Wall whereby a call for parallelism, if the call for course and distance is disregarded, brings the southern line down to include the disputed tract. It is clear that if Grady Wall had superior title to the disputed area, it was from an independent source. The transcript and original exhibits filed herein constitute the entire record of the case and there is no evidence in the record making Grady Wall a superior titleholder to the disputed tract. The deed from the common source to Wall conveyed only property above line K-L as shown on plat. For appellees to prevail they must show outstanding superior title to the disputed tract into Wall deraigning from the State. No such evidence is in the record to overcome the presumption that the common source held all previous titles.

Once a party has made proof of a common source of title a presumption is raised that the common source owns the title of all previous owners. Temple Lumber Co. v. Arnold, supra. The appellees having not shown that there is a superior outstanding title and that they are the holders of that title, the appellants are entitled to judgment for title and possession of the disputed tract. Pondrum v. Gray (Tex.Comm.App.) 298 S.W. 409 on re-hearing, 1 S.W.2d 278; Plummer v. Marshall, 59 Tex.Civ.App. 650, 126 S.W. 1162, err. ref.; Scott v. Washburn, Tex.Civ.App., 324 S.W.2d 957, err. ref. n. r. e.

The land conveyed from the common source of title into the appellants as reflected by the descriptions in the various deeds is contained within the area of K-M-I-L-K.

The description contained in the deed from Scott, et al. to Grady Wall does not embrace the portion of land that appellees claimed in this lawsuit as being conveyed to the Farmers in a deed from Wall. It is apparent that Wall did not acquire title to the disputed land through the deed of conveyance from Scott, et al. to Wall. Therefore, title to the land in question, not being vested in Grady Wall at the time of his deed of conveyance to the Farmers, could not convey same to the Farmers. In the case of Cockrell et al. v. Texas Gulf Sulphur Co., 157 Tex. 10, 299 S.W.2d 672 it says:

'We take it that no authority need be cited for the proposition that a deed can pass no greater estate than that owned by the grantor.'

As hereinabove indicated, appellees now contend that a boundary question only is involved, although appellees brought suit in trespass to try title. Their position is that a conflict exists between the call for 'N. 88 deg. 45 min. E.' and the language immediately following 'and parallel with the S. line of said J. F. Nelson 5 acre tract'. (Emphasis supplied). Appellees claim that the south line of said J. F. Nelson tract, as called for in the deed, is a superior call to course and distance and therefore the latter must be rejected. It is clear that the burden of proof was upon appellees to prove the actual location of such south line upon the ground before the call for course and distance could be ignored. Stein v. Roberts, Tex.Civ.App., 217 S.W. 166 (no writ); Fagan v. Stoner, 67 Tex. 286, 3 S.W. 44. Proof of the actual location of the line on the ground may in fact disclose no conflict at all.

In applying rules of construction for the ascertainment of the boundaries of a grant, the primary question to be determined is the intention of the parties apparent from the face of the instrument. Huff v. Crawford, 89 Tex. 214, 34 S.W. 606. There is no evidence before us as to the location on the ground of any line or corner of any tract described in the various exhibits. No attempt was made to 'trace the footsteps' of any surveyor of the surveys involved. We are left to ascertain the intention of the parties from the language used in the grant. Blackwell v. Coleman County, 94 Tex. 216, 59 S.W. 530. Where a conflict appears that construction should be adopted which more nearly harmonizes all of the calls of the grant; and...