Anderson v. Rich

• Decision Date: 15 June 1920
• Docket Number: (No. 550.)
• Citation: 223 S.W. 540
• Parties: ANDERSON v. RICH et al.
• Court: Texas Court of Appeals

223 S.W. 540

ANDERSON v.RICH et al.

(No. 550.)

Court of Civil Appeals of Texas. Beaumont.

June 15, 1920.

On Rehearing, July 5, 1920.

Appeal from District Court, Liberty County; D. F. Singleton, Judge.

Suit by J. J. Anderson against J. M. Rich and others.Judgment for the defendants on their cross-actions, and plaintiff appeals.Affirmed.

J. Llewellyn, of Liberty, for appellant.

E. B. Pickett, Jr., of Liberty, for appellees.

WALKER, J.

This suit was originally instituted by appellant against the appellees, and involved that portion of the Robert Whitlock survey in Liberty county owned by C. A. Speights and wife at the time of their deaths, less 200 acres set apart by the probate court as a homestead for the Speights children.

The defendants filed separate answers, each disclaiming title to all the land sued for by plaintiff except that portion specially described in their respective answers.In addition thereto, defendants pleaded not guilty, the different statutes of limitation, and by cross-action each of them prayed for an affirmative recovery against plaintiff for the land as claimed by them respectively.

By supplemental petitionthe plaintiff pleaded not guilty to defendants' cross-actions.After the jury had been impaneled, the plaintiff dismissed his suit against all the defendants.The trial then proceeded, with the defendants as cross-plaintiffs and the original plaintiff as cross-defendant.On conclusion of the testimony a verdict was instructed for each of the cross-plaintiffs for the land respectively claimed by them.To this action of the courtthe cross-defendant excepted, and has duly perfected his appeal.

As appellant has not brought forward in the transcript a bill of exception to the action of the court in overruling his motion for continuance, his assignment of error presenting this point cannot be considered.The judgment recites that the motion was presented and overruled, and that appellant duly excepted, but "the action of the court upon motions for continuance can be revised * * * only when exception is reserved and presented in a proper bill."Railway Co. v. Mallon, 65 Tex. 115.

In connection with his plea of not guilty, appellant also pleaded a misjoinder of parties and of causes of action.No error was committed in overruling this plea.In the first place such a plea came too late, after the jury had been impaneled, and again, as all the appellees except Mrs. Woods were brought into this case by the appellant, he could not create a misjoinder of parties and of causes of action by dismissing his cause of action against them and pleading not guilty as to their cross-actions.

Appellant has duly presented for our consideration the action of the trial court in instructing a verdict against him.This has called for a review by us of all the testimony in the case.Not only have we read the statements as made in the briefs, but we have carefully examined the statement of facts, together with the map which is made a part of the statement of facts, showing the contentions and claims of the different parties.Appellant holds under a deed made to his father on the 24th day of June, 1869, by F. M. Wallis, administrator of the estate of C. A. Speights and Harriet Speights.In this deed the land conveyed is described as follows:

"The following described tract of land belonging to the estates of said decedents C. A. Speights and Harriet Speights, to wit: Two hundred and thirty-six acres (236) the same being a part of the headright of Robert Whitlock situated in said county of Liberty, state of Texas, and being all that portion of the tract of land upon which the late homestead of the decedents is situated, except the two hundred acres set apart as a homestead for the children of said decedents.For better description reference is made to following field notes.[Then follows the field notes of the entire Whitlock survey.]"

The north line of the Whitlock is a common line with the south line of the Joseph Dunman, and the south line of the Whitlock is a common line with the north line of the James Mayfield.By its original calls the Whitlock survey is 8,030 varas long and 810 varas wide.As we gather from the statement of facts, the Speights home place was in the eastern portion of the survey, and was bounded on the north by the north boundary line of the Whitlock; that is, C. A. Speights owned the full width of the survey.In a special charge presented by appellant, he conceded to the appellees 200 acres of the land described in his petition, and claimed respectively by them in their answers.By their disclaimers, appellees conceded to appellant all the land originally sued for by him, except that portion which they claimed constituted the 200 acres set apart to the Speights children.This litigation grows out of the fact that the Whitlock was 875.6 varas wide instead of 810 varas wide.The description in the deed from the administrator presupposes that the 200 acres had been "set apart" to the Speights children at the time the deed was executed by the administrator to Anderson.Speights and wife died some time prior to 1869.On the 12th day of December, 1874, the courthouse of Liberty county and all the court records were destroyed by fire.Thus all the proceedings involving the Speights estate were destroyed, and, as appellees had no copies of such proceedings, they undertook to locate the 200-acre homestead by circumstances.The substance of their testimony is as follows:

(1) It was conceded that the land sold by the administrator to old man Anderson, the father of appellant, lies east of the 200-acre homestead.

(2)Appellant and appellees agree as to the true location of the northeast corner of the homestead 200 acres; this being a common corner with the land claimed by appellant, and is on the north boundary line of the Whitlock.

(3) Many efforts have been made to survey a line south from this agreed corner on the north line of the Whitlock.If a corner is established on this line at 810 varas south from the agreed corner, no marked line exists running west.If appellant's theory is correct, such a line must have existed, because the 200 acres had been "set apart," unless it was set apart without an actual survey.Between the north and south lines of the Whitlock, there is no line running west intersecting a line running south from the agreed corner.

(4) Until an actual survey was made some time in the '80's, it was generally understood that the Whitlock was only 810 varas wide.

(5) The Speights children sold their interest in this 200-acre homestead to G. W. Albritton, describing the same as follows:

"A certain tract or parcel of land situate, lying and being in the county of Liberty state of Texas aforesaid containing forty acres a part of the headright of Robert Whitlock and consists of an undivided interest of one-fifth part of a tract of two hundred acres which was set apart as a homestead to...