Barker v. Temple Lumber Co.

• Decision Date: 02 January 1929
• Docket Number: (No. 1110-5028.)
• Citation: 12 S.W.2d 175
• Parties: BARKER et al. v. TEMPLE LUMBER CO. et al.
• Court: Texas Supreme Court

Page 175

12 S.W.2d 175

BARKER et al. v. TEMPLE LUMBER CO. et al.

(No. 1110-5028.)

Commission of Appeals of Texas, Section A.

January 2, 1929.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Trespass to try title by James G. Barker and others against the Temple Lumber Company and others. A judgment for plaintiffs

was reversed by the Court of Civil Appeals (298 S. W. 477), and plaintiffs bring error. Judgment of the Court of Civil Appeals reversed, and judgment of the district court reformed and affirmed.

John Hancock, of Fort Worth, and James G. Barker, of Hemphill, for plaintiffs in error.

Minton & Minton and W. F. Goodrich, all of Hemphill, R. E. Minton, of Lufkin, Davis & Davis and W. I. Davis, all of Center, S. W. Blount, of Nacogdoches, A. D. Lipscomb, of Beaumont, and Mooney, Adams & Hamilton, of Jasper, for defendants in error.

NICKELS, J.

For a general statement of the case, reference is made to the opinion of the Court of Civil Appeals (298 S. W. 477).

Writ of error was allowed, principally, upon assignment challenging decision that the instrument discussed in that opinion is without effect to convey a present interest.

1. The granting clause of the "power of attorney" is that grantors "have this day bargained, sold and conveyed, and by these presents do bargain, sell and convey * * * an undivided one-half interest in the above described tracts or parcels of land." The "above described tracts or parcels of land" (it is stated in the paper) are "all tracts or parcels of land we may own at this time in the County of Sabine, State of Texas." The recitals furnished means of identification of the lands dealt with, and, in our opinion, the conveyance itself took effect upon delivery of the instrument. Witt v. Harlan, 66 Tex. 660, 2 S. W. 41; Garner v. Boyle, 97 Tex. 460, 79 S. W. 1066. We do not, of course, mean to imply that the contract as a whole was not largely executory; what we do hold is that in its conveyance it presently transferred a title.

Authorities cited contra are distinguishable. The instrument considered in Haglett & Dickey v. Harwood, 80 Tex. 508, 16 S. W. 310, could not "be treated as a deed for any particular land because it describes none"; its conveyance had relation only to such "lands or land certificates" as the attorneys (grantees) might "obtain for us," and that which was thus left uncertain could not be rendered certain until by futuro action some "lands or land certificates" should be procured in the manner indicated in the power. In Tayler v. Taul, 88 Tex. 665, 32 S. W. 866, it is recognized that, if, in the granting clause of the instrument then being reviewed, the words "lands described in this power of attorney" (i. e., "all such lands * * * whatsoever in the State of Texas, whereof or whereto we are * * * entitled or interested * * *") had been used without the restrictive words "lands contemplated in this power of attorney," no "further act on the part of Tayler" (grantee) would have been required to bring the lands "within the purview of the instrument"; reasons why "lands contemplated in this power of attorney" became restrictive so as to render the conveyance executory are detailed, and in the present instrument we do not find comparable bases for qualification of the apparent general and immediate grant. The "power of attorney" before the court in Browne v. King, 111 Tex. 330, 235 S. W. 522, is set out (in its important parts) on page 885 of 196 Southwestern Reporter. The land to which its granting clause refers is the "land so recovered," i. e., to be recovered in user of the powers delegated. In each instance, it is noted: (a) Means of identification had as yet to be created; (b) that had to be done by the grantee in performance of service stipulated.

2. Conclusion of error, in the reason assigned by the Court of Civil Appeals for reversal of the trial court's judgment and rendition of one for defendants in error, makes it necessary to determine what judgment should have been rendered. Texas Brewing Co. v. Templeman, 90 Tex. 277, 38 S. W. 27; Holland v. Nimitz, 111 Tex. 419, 232 S. W. 298, 239 S. W. 185.

September 9, 1878, Gibbons or his heirs had title to the entire tract now involved, and that title does not appear to have been transferred, unless through the bar of five or of ten years' prescription (articles 5509-5515, R. S. 1925) or to the extent effected by a suit brought by Gibbons' heirs September 3, 1890, against Damon (immediate vendee of Bennett et ux.) and by amendment at a later date against the Bennetts also, wherein they sought recovery of all the land. Prescription depends entirely upon possession, etc., by the Bennetts after September 9, 1878. They conveyed to Damon in 1889, but thereafter (for Damon) maintained possession. "Peaceableness" (article 5514) ended with filing of the suit on September 3, 1890. Origination and completion of the bar (and transfer of title thereby, article 5513), if they happened, intervened September 9, 1878, and September 3, 1890.

Defendants in error presented in the Court of Civil Appeals lack of bases for prescriptive title.

The suit of Gibbons' heirs ended with an agreed judgment awarding Bennett 320 acres of the land now in question. The effect and the lack of effect of that award were the subjects of contentions made respectively by opposing parties in the Court of Civil Appeals.

Damon conveyed to Rogers, "trustee"; plaintiffs in error claim under Rogers' heirs. Defendants in error asserted in the Court of Civil Appeals lack of beneficial interest in Rogers and, sequently, in Rogers' heirs and their grantees.

Settlement of the questions thus suggested will determine what judgment should have been rendered.

3. Predicate of asserted title by five years' prescribing is a tax deed executed September 9, 1878, by McGown, tax collector of Sabine county, to Bennett. In the deed are recitals: (a) "That whereas certain taxes are due the State of Texas upon 1118 acres of the J. W. Gibbons survey * * * as appears from the tax roll * * * for the year of 1877;" (b) of levy, seizure, and advertisement of "said lands"; (c) of a "highest and best bid," in amount sufficient to pay taxes and costs, by Bennett, "for 1118 acres of said land"; (d) of conveyance to Bennett of "said land." The deed has a caption, "State of Texas, County of Sabine," with an acknowledgment taken at the county seat. The instrument does not include other means of identification (see article 4756, R. S. 1879; article 5185, R. S. 1895; article 7639, R. S. 1911; article 7281, R. S. 1925), such as certificate number, "name of the person * * * on whom demand for taxes was made" or the data shown in "the Tax roll * * * for the year of 1877," etc.

The "tax roll" or its data were not introduced in evidence.

In evidence it appears without contradiction: (a) Certificate No. 624 for 1,476 acres was issued to John W. Gibbons. May 17, 1838, a survey was made for Gibbons in Sabine county for "a part of the land to which he is entitled by virtue of certificate No. 624." The lines of that survey purported to include 1,024.9 acres. The "field notes" of that survey were "corrected" through a new survey made (by a different surveyor) in January, 1893, of a purported like quantum and upon the corrected "field notes" patent issued to heirs of Gibbons, February 2, 1893. Plats prepared by the two surveyors (which became a part of the "field notes" and of the record here) and the "field notes" disclose that boundaries of the two "surveys" are not exactly coincident. November 8, 1839, Gibbons transferred the certificate, except as to the acreage surveyed as shown above, to Norvell and Mitchell. March 15, 1848, 451.2 acres was patented, under the certificate and to the transferees. This acreage was shown on the official maps for Sabine county (compiled before 1877) as the "John W. Gibbons" survey, located a considerable distance (slightly south of east) from the acreage surveyed for Gibbons in 1838 (and again in 1893) and shown on the maps as the "John W. Gibbons" survey. (Platting of surveys and naming of same upon the maps appears to have been within authority of the compilers. Acts 1841, p. 150; article 5259, R. S. 1925.) No part of the smaller survey was in Bennett's possession, nor is the survey or any part of it now involved.

Against defendants in error we assume the tax deed does not include patent ambiguity voiding its asserted purport. But in our opinion, a voiding latent ambiguity is developed in the evidence, for it is impossible to ascertain, with any degree of certainty, to which, if either, of the John W. Gibbons surveys (separately considered) the description in the deed is referable, or to exclude from its reference the whole of the smaller survey and part of the other or parts of each. Since neither of the surveys, according to the records of the land office, contained 1,118 acres, it is likely that the "1118 acres" was made up (in tax records) of parts of the two surveys, or of the whole of one and part of the other.

The function of a deed under the five-year statute (article 5509) is to give notice to the owner of adverse claim "to the land." Roseborough v. Cook, 108 Tex. 364, 194 S. W. 131; Neal v. Pickett (Tex. Com. App.) 280 S. W. 748. Its imputation of that notice presupposes ability to apply with certainty its description to land in adverse possession (Kilpatrick v. Sisneros, 23 Tex. 136); and, if there be ambiguity preventing that application, it can make no difference that the vice is latent. This is indicated, we think, in Flanagan v. Boggess, 46 Tex. 331, wherein the court speaks of a description (not patently ambiguous) as sufficient "to satisfy the statute until there is evidence showing the contrary." The statement to be found in cases, that a "deed not void on its face will support the plea of five years' limitation," in its strict sense is too broad; there is no case within our reading wherein the doctrine...