Allison v. Pitkin

• Decision Date: 23 November 1895
• Citation: Allison v. Pitkin, 33 S.W. 293 (Tex. App. 1895)
• Parties: ALLISON et al. v. PITKIN et al.
• Court: Texas Court of Appeals

33 S.W. 293

ALLISON et al. v.PITKIN et al.

Court of Civil Appeals of Texas.

November 23, 1895.

Appeal from district court, Hunt county; E. W. Terhune, Judge.

Action by D. W. Allison and others against Eliza Pitkin and others.From the judgment, plaintiffs appeal.Reversed in part and affirmed in part.

Williams & Butts, for appellants.Sherrill & Hefner, for appellees.

Conclusions of Fact.

RAINEY, J.

The land in controversy in this suit was patented to W. S. Todd, assignee, in 1857, and said Todd deeded the land to Horrace W. and G. W. Pitkin in 1859, through whom the appellees claim.The patent recited that the land was situated in Fannin county, when, as a matter of fact, it was situated in Hunt county, Tex.In 1888, W. S. Todd and wife, Eliza, being dead, George T. and Charles S. Todd, as heirs of W. S. Todd and wife, Eliza, by warranty deed sold the land to W. C. Nail, which deed recited a cash consideration of $5,000, but in fact said George T. and Charles S. Todd only received the sum of $500 in payment of their interest in the land.W. C. Nail, in 1888, deeded the land to John A. Warren, warranting the title thereto, and reciting a consideration of $5,500.In 1889, John A. Warren, by warranty deed, conveyed the land to W. C. Gamble, reciting a consideration of $6,000, but in fact there being only $3,000 of the consideration paid.In May, 1890, W. C. Gamble borrowed from the W. C. Belcher Land Mortgage Company the sum of $2,700, and to secure the payment of same executed a deed of trust on the land in controversy, under which deed of trust the land was sold, and the trustee in the deed of trust on August 6, 1891, deeded the same to the W. C. Belcher Land Mortgage Company, the consideration paid at the sale being $2,000, which was credited on said indebtedness.All of the foregoing instruments were duly recorded in Hunt county, Tex., and all of them, except the deed by virtue of the sale under said deed of trust, were recorded prior to July 28, 1891, the time when the muniments of title to appellees Pitkin were recorded in Hunt county, which was more than a year after the appellant mortgage company had acquired and fixed its lien upon the land.The land in controversy adjoins the Fiser survey on the south.In 1876 the owner of the Fiser survey improved 15 or 20 acres near his south line, and by mistake inclosed 7 acres of the survey in controversy.At the time this land was put in cultivation one Cummins was acting as agent of the Fiser survey, and for several years all of the cultivated land was rented as the land of the Fiser survey.Subsequently, in about 1879 or 1880, Cummins was also appointed by the Pitkins as agent to look after their survey.Cummins then had the lines of the Francis survey run and duly marked, and he then discovered that seven acres of the land in cultivation were situated on the survey in controversy, which is the Francis survey.For a while after discovering it, he, being agent of both the Fiser and Francis surveys, rented the land in lump, without notifying the tenants that the land belonged to two different parties.He collected the rents, and accounted to the different owners therefor.There was no fence segregating the two surveys until 1890, which was not until after appellant mortgage company had acquired its lien upon the land.The improved land on the Fiser and Francis surveys was inclosed in a common inclosure as one farm.The houses were on the Fiser survey, but the tenants were instructed to also look after the...