Baldwin v. Willis
| Decision Date | 25 September 1952 |
| Docket Number | No. 4820,4820 |
| Citation | 253 S.W.2d 287 |
| Parties | BALDWIN et al. v. WILLIS et al. |
| Court | Texas Court of Appeals |
Andrews, Kurth, Campbell & Bradley, Houston, for appellants.
Lane & Anderson, Center, for appellees.
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:
'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 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:
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 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 of the tract being resurveyed and he took this to be the bearing tree called for as the locater of the Northwest corner of the tract being resurveyed; that the post oak located was over 30 inches in diameter and was dead, apparently having been burned; that the mark 'JBK' could not be found, but the tree located was the only one of the distance called for in the metes and bounds description of the tract referred to in the Agnew to Snider deed to be found on the presumed North line of the tract being resurveyed, and said large tree was found to lie 85 varas due East from the Northwest corner of the tract being resurveyed; that from this Northwest corner he resurveyed the next call for course and distance in the metes and bounds description in the deed from the Agnews to Snider and ran it as the West boundary line of the tract being resurveyed; that by running a line South 18 East 1109 varas from said Northwest corner he made a southwest corner on what he knew to be the North line of the H. Thomas Survey; that this course and distance corresponded exactly with the call in the old metes and bounds description of the tract being resurveyed; that from this point he ran a line East along what he knew to be the North line of the Thomas league and the South line of the Joel Yarborough Survey until said line intersected with the center of Brushy Creek at a distance of approximately 681.84 varas. (The appellants point out in their brief that this distance is some 9 varas more than called for in the original metes and bounds description of the tract being resurveyed, but they say that this additional distance is accounted for by the fact that the original description called for a point on the West bank of Brushy Creek and the surveyor ran his line to the center line of that creek.) The surveyor further testified that to verify his conclusion that he had located the point where the North line of the Thomas and the South line of the Yarborough surveys intersected Brushy Creek, that being the called Southeast corner of the tract he was resurveying, he proceeded on the same course across Brushy Creek and at a distance of 356 feet (128.61 varas) from the center of Brushy Creek he found on this course an upright stone. In a deed introduced for descriptive purposes by the appellants as their exhibit No. 10 from Daniel Coyle et al. to Mrs. C. E. Coyle, there is a call for a rock for a corner at the Southeast corner of the Joel Yarborough survey on the North line of the H. Thomas survey. The witness testified that by his measurement such upright stone was 2,350 feet East of the point marked by him as the Southwest corner of the tract he was resurveying. In a deed from J. M. Whiddon to H. K. Whiddon introduced by the appellants for descriptive...
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