Bassett v. Martin

• Court: Texas Supreme Court
• Writing for the Court: Gaines
• Citation: Bassett v. Martin, 18 S.W. 587, 83 Tex. 339 (Tex. 1892)
• Decision Date: 12 February 1892
• Parties: BASSETT v. MARTIN.

18 S.W. 587

BASSETT v. MARTIN.

Supreme Court of Texas.

February 12, 1892.

Appeal from district court, Grimes county; NORMAN G. KITTRELL, Judge.

Action by W. T. Martin against H. A. P. Bassett. Judgment for plaintiff. Defendant appeals. Affirmed.

T. C. Buffington, for appellant. Lock McDaniel, for appellee.

GAINES, J.

This was a suit brought by appellee to recover of appellant a tract of land. The petition was in the statutory form of an action of trespass to try title. The land in controversy is a part of a survey known as the "James Cox League," and lies between two channels or waterways of a stream called "Rocky Creek." Both above and below the land in dispute the waters of the stream run in a single channel; but above, at its eastern extremity, they divide at certain stages, and pursue two different ways, which again unite at the western extremity of the tract. There was testimony to show that at an early day the principal flow of the water was through the southern channel, and that it was then known as "Rocky Creek." But there was conflicting testimony upon this point. It is, however, pretty well established that the waters now take the northern run, and that it is the stream which now bears the name of the creek, and that the southern channel is now called the "Old Slough." The plaintiff, who is the appellee here, claims a tract of land lying north of the creek, extending east and west from a point above the place where the channel divides into two to a point below that at which the two ways unite. He claims under deeds which call for Rocky creek as the south boundary line. The defendant claims the land lying south of the plaintiff's, and his deeds call for the creek as his north boundary line. The plaintiff's chain of title, as admitted in evidence, consisted: (1) Of the "Abstract of Titles and Patented Lands," published by the authority of the legislature, showing that the league was granted to James Cox; (2) a deed from Cox to John Lott; (3) a deed from Lott and wife to John F. Martin; (4) proceedings in partition of the estate of John F. Martin, setting apart the land to J. F. Martin, Jr.; (5) deed from J. F. Martin, Jr., to W. T. Martin, the plaintiff. It was shown that defendant claimed under a chain of title as follows: (1) Deed from H. Jones to A. D. Beaty; (2) deed from Beaty to A. D. Buwick; (3) deed from H. J. Neal, as administrator of the estate of Buwick, to W. T. Martin, the plaintiff; (4) deed from the plaintiff to T. J. Haynie; (5) deed from Haynie to Green Campbell; (6) deed from Campbell to defendant. The deed from J. F. Martin, Jr., to plaintiff, is dated December 16, 1865; that from Buwick's administrator to him bears date March 1, 1872. The former calls for Rocky creek as its south boundary line, and the latter for the same creek as its north boundary.

Prima facie, at least, the plaintiff's claim under the two deeds embraces the land on both sides of the creek, without reference to the question which of the two channels is to be considered that creek, and included the land in controversy. Since the defendant asserts title to the tract in dispute through a chain of conveyances emanating from the plaintiff, it is evident we think, that we have a common source, and that the plaintiff was not required to prove title in himself from the sovereignty of the soil. We do not hold that the defendant was precluded from showing that there was an outstanding title in some third person, and from defeating, by such proof, plaintiff's action. But, while the title exhibited by plaintiff may not show title from the government, it does not appear affirmatively that any one else has such title. We know of no authority for admitting the book known as the "Abstract of Titles and Patented Lands" as proof that title had been issued by the state or the former government to the grantees named therein. But, if the book did not show a grant to Cox, it did not show a grant to any one else.

The deed from Cox to John Lott was admitted without objection having been made that it was not proved. The deed from Lott and wife was objected to upon the ground that it was not duly acknowledged and certified. What purports to be the acknowledgment of the wife is not in accordance with the statute, and is void. There was no objection that the certificate as to the husband was not sufficient; nor, in our opinion, would such objection have been well taken. The conveyance from Cox was to John Lott, and made the land either his separate property or the common property of himself and wife. In either event, he had the right to convey it, and it was not necessary that his wife should join in the deed. It may be that if Lott's deed had not conveyed his title the plaintiff's acceptance of the deed would have been evidence of title in Lott at the time of its execution, and would have been sufficient to show, as against plaintiff, title in Lott at the time of the trial. But it passed whatever estate Lott had.

The defendant claiming under the plaintiff, who had deeds conveying the land on both sides of the creek, and it not appearing that there was a title superior to that of plaintiff outstanding in any third person, we are brought to the question whether plaintiff's deed to Haynie, through whom defendant claims, conveyed the premises in dispute. If the north channel of Rocky creek only had been known by that name, it is clear that the deed in question conveyed the land in controversy, and that it would have passed by the subsequent deeds to the defendant, unless Campbell, defendant's vendor, had estopped himself by an agreement as to the boundary line, and defendant be concluded by that agreement. The testimony shows, we think, that both channels had at one time been known as "Rocky Creek." The fact testified to by some witnesses, that they had never known the south channel to be so called, does not necessarily conflict...