Baldwin v. Willis, 4820

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: R. L. MURRAY
• Citation: 253 S.W.2d 287
• Parties: BALDWIN et al. v. WILLIS et al.
• Docket Number: No. 4820,4820
• Decision Date: 25 September 1952

Page 287

253 S.W.2d 287 BALDWIN et al.
v.
WILLIS et al. No. 4820. Court of Civil Appeals of Texas, Beaumont. Sept. 25, 1952.
Rehearing Denied Dec. 3, 1952.

Andrews, Kurth, Campbell & Bradley, Houston, for appellants.

Lane & Anderson, Center, for appellees.

R. L. MURRAY, Justice.

This is an appeal from a judgment in the district court of Shelby County, in a suit in trespass to try title to an undivided one-half of the oil, gas and other minerals in, on, and under a tract of land in the Joel Yarborough Survey in Shelby County. The case was tried before the court without a jury. The judgment was that appellants, who were plaintiffs in the trial court, take nothing by their suit. They have duly perfected their appeal from such judgment to this court for review.

The description of the land sued for contained in the pleadings of the appellants is as follows:

'* * * that certain tract of parcel of land lying and being situated in the County of Shelby, State of Texas, and being a part of the Joel Yarborough Survey, more particularly described as follows, to-wit: Beginning at Geo.

Page 289

King's N.E. corner, it T. Odom's S.E. corner a stake pine 30 in. diam. S. 33 E. 9 vrs. Mkd. G.K. black gum 10 in. diam. N. 26 W. 1 1/2 vrs. mkd. X;

'Thence W. 690 vrs. with T. Odom's S.E. line to stake, P.O. 30 in. diam. mkd. J.B.K. bears E. 85 vrs;

'Thence S. 18 E. with J.M. Jetton's E. bdry. line 550 vrs. his S.E. corner continuing same degree. 1109 vrs. a stake, it being H. Thomas' North league line pine 20 in. diam. brs. S. 2 vrs. post oak brs. N. 10 W. 13 vrs. both mkd. JBK;

'Thence E. with H. Thomas league line 672 vrs. to west bank of Brushy Bayou, a stake, red oak 20 in. diam. brs. S. 10 E. 7 vrs. black gum 8 in. diam. N. 20 W. 6 vrs. both mkd. GK;

'Thence N. 22 E. with the channel of said bayou 1220 vrs. to the place of beginning, containing 117 acres of land, more or less.'

The description contained in a deed from J. S. Snider and wife to Walter May, dated January 12, 1920, is as follows:

'Tract or parcel of land. situated in Shelby County Texas. and Described as Follows. Beginning at Geo. Kings N.E. Cor. it being F. Odom.s S.E. Cor. a stake. Pine 30, in, Dia, S, 33, E, 8, inm, Mkd, OK, Black Gum, 10, Dia, N26, W, 1 1/2 Mkd, K, Thence W, 670 vrs with T? Odom.s, S.B.Line, to stake, post oak 30. in Dia.Mkd, JBK. brs E, 85, vrs; Thence S?18, E, with J?M? Jetton, E.B. Line, 550 vrs his S?E?Cor, Continuing same degree II09 vrs a stake, it being H, Thomas's N, League Line, pine 20, in, dia, brs S. 2, vrs Post Oak Brs N, 10, W, 13, vrs both Mkd JBK, Thence with H, Thomas's League Line S, 672, vrs to the W, Bank of Brushey, Creek or Bayou, a stake Red Oak, 20 in, dia, brs S, I0, E, 7 vrs. Black Gum 8, in, din, 2120, W, 6, vrs, both Mkd, Gk; Thence N, 22n Enwith the chanel of said Bayou? I220, vrs to the place of Beginning, Containing, One Hundred and seventeen Acres Of Land, More or Less, (II7 Acres) And Recordied in the County Records of the County Book No 96 and Pages 65, and 66.'

The original of this instrument was by order of the court attached to the transcript and sent up with the record in this case. We have copied the description contained therein, showing the peculiar typing contained in the deed, as nearly as possible. The deed containing the above description was offered in evidence by appellants as their exhibit P-15, and was excluded by the court on objection of appellees. The objections in substance were (1) the description therein was insufficient to identify the land; (2) the description therein was insufficient to supply the necessary information to locate such land; (3) the field notes therein do not close because: (a) there is a call to proceed with the H. Thomas South league line after the preceding call had ended on the H. Thomas N. league line; (b) the aforementioned call to proceed on the H. Thomas league line has a direction call for South, which prevents the field notes from closing.

Exhibit P-15, the deed containing the above description, was offered by the appellants for the purpose of establishing a common source of title in J. S. Snider and wife. They had earlier in the trial undertaken to establish such common source of title in Walter May and wife and for that purpose had placed in evidence their exhibits Nos. 1 and 2, consisting of a deed from Walter May and wife to J. C. Baldwin and the deed therein referred to for descriptive purposes, by which the said J. C. Baldwin acquired the interest in the tract of land described in said deed. This land the appellants are claiming through subsequent deeds and instruments, and exhibits Nos. 4, 5, and 6. The appellants, in their brief, have elected to rely upon J. S. Snider and wife as the common source of title through their deeds included

Page 290

in their exhibits P-1, P-2 and P-15, all three of which were excluded from the evidence by the court. Exhibits P-1 and P-2 were first received in evidence by the court and were later stricken therefrom and exhibit P-15 was excluded upon the objections of appellees as above set forth.

The appellants' three points on which they bring this appeal are as follows:

Point 1, the trial court erred in excluding from evidence the deed from J. S. Snider and wife to Walter May, offered as plaintiffs' exhibit No. 15, for the reason that this deed accurately describes the land in litigation.

Point 2, the trial court erred in striking from the evidence the deed from Walter May and wife to J. C. Baldwin, offered as plaintiffs' exhibit No. 1, and the deed referred to therein for descriptive purposes, offered as plaintiffs' exhibit No. 2, for the reason that such deeds, when read together, accurately describe the land in litigation.

Point 3, the trial court erred in failing to enter judgment in favor of appellants, James C. Baldwin and Robert B. Baldwin, decreeing that each owns an undivided 1/4th interest in and to the oil, gas and other minerals in, on and under the land described in plaintiffs' first amended original petition.

Appellants' Point 1 will be discussed first: It is noted that in the deed from Walter May and wife to J. C. Baldwin, plaintiffs' exhibit No. 1, the description of the land in part reads as follows: '* * * being a part of the Hezekiah Thomas H.R. Survey, and containing 117 acres of land, more or less, which is fully described by metes and bounds in a deed recorded in Volume 96, Pages 65 and 66 of the Deed Records of Shelby County, Texas.' In the descriptive deed mentioned therein, plaintiffs' exhibit No. 2, from L. P. Agnew and wife to J. S. Snider the description therein does not state in what survey the land is situated, either the Joel Yarborough or the Hezekiah Thomas. From the evidence in the case it is established that those two surveys adjoin each other and the Yarborough survey is immediately North of the Thomas survey. The appellants introduced in evidence the testimony of a licensed surveyor who testified that he located the tract of land described in plaintiffs' exhibit No. 2, in a deed from Agnew and wife to Snider. He testified that he located said tract from the calls in the Agnew to Snider deed; that he located a large post oak on what he took to be the North line...