Bayle v. Norris

• Citation: 134 S.W. 767
• Court: Court of Appeals of Texas
• Decision Date: 02 February 1911
• Parties: BAYLE et al. v. NORRIS et al.<SMALL><SUP>†</SUP></SMALL>

134 S.W. 767

BAYLE et al. v. NORRIS et al.^†

Court of Civil Appeals of Texas.

February 2, 1911.

Rehearing Denied February 23, 1911.

Appeal from District Court, Harris County; W. P. Hamlen, Judge.

Action by Joseph Bayle and others against W. H. Norris, receiver, and others. From a judgment for insufficient relief plaintiffs appealed, and defendants assigned cross-errors. Reversed and rendered in part; reformed and affirmed in part.

W. D. Gordon, for appellants. Spotts & Matthews, for appellees.

McMEANS, J.

Joseph Bayle and his co-plaintiffs brought this suit against W. H. Norris, receiver of the Tyler County Land & Lumber Company, to recover damages in the sum of $35,000, alleged to have been sustained by them by reason of the defendant having unlawfully cut and removed from land alleged to belong to plaintiffs 5,000,000 feet of pine timber, which they alleged he manufactured into lumber and appropriated to his own use, the sum so sought to be recovered being the value of the timber after it was manufactured into lumber.

Plaintiffs alleged that they were the owners in fee simple of the land from which the timber was taken and describe the same in their petition by the following field notes: "The south one-fourth of the Mary Thomas league in Polk county, Texas. * * * Beginning at the southwest corner of the said Mary Thomas League; thence north 50 deg. W. 1,332.5 varas, more or less, to corner on west line of said Mary Thomas League; thence N. 70 deg. E. 5,330 varas, more or less, to the east line of said Mary Thomas League. Thence S. 50 deg. E. 1,332.5 varas, more or less, to the S. E. corner of said Mary Thomas League; thence S. 70 deg. west 5,330 varas, more or less, to the S. W. corner of said Mary Thomas league to the place of beginning containing 1,107 acres of land more or less."

The defendant filed an answer to the suit vouching in certain warrantors, alleging that he, as receiver, had purchased the timber from these warrantors on the specific tracts, which he described in his answer. He set up that these warrantors had conveyed him the timber and that they had a right to do so, having acquired title to the lands by adverse possession, and he pleaded their limitation titles in defense of the plaintiffs' suit, and in the alternative for judgment against the warrantors for the value of the timber conveyed to him by the deeds of the settlers. He also set up that, as receiver of the said Lumber Company, and of the Railway Company, which really was the tram used by and in connection with the Lumber Company, it was impossible for him to give his personal attention to the purchase of all the timber necessary to the operation of the mill in his charge, and that he had employed careful agents, who made the purchases and upon whose judgment in making the same, he was compelled to rely and did rely. He alleged that these agents made diligent inquiry as to the nature of the title from those from whom they purchased and believed and so reported to the defendant that good titles to the timber purchased were acquired by the purchases set out in the answer, and that, so believing, he caused the timber to be cut for use in the mill, in good faith, and hence, that if plaintiffs were entitled to recover anything they should recover only the value of the trees.

The warrantors brought in by the receiver were B. W. Wiggins, from whom defendant alleged he had purchased the timber on two tracts of 160 acres each, and who answered by general denial and plea of not guilty; J. C. Salter, A. D. Salter, J. G. Masterson, and W. C. Stockley, from whom defendant alleged he had purchased the timber on a tract of 152 acres, who did not answer, but suffered judgment by default; J. M. Mullins and wife, and Mrs. E. Mullins, who answered by general denial and pleas of not guilty. The case was tried before the court without a jury, and resulted in a judgment in favor of plaintiffs against defendant Norris for $1,205.91, being the value of the timber taken from the most western of the tracts conveyed by B. W. Wiggins to defendant and for the value of the timber sold to defendant by the Salters, Masterson, and Stockley, and denied plaintiffs a recovery for the value of the timber as manufactured into lumber, and also denied them a recovery for the value of the timber sold defendant by Wiggins on the other tract of 160 acres, and for the value of that sold to him by J. M. Mullins and wife and Mrs. E. Mullins, or for any other timber taken from the land. Judgment was also rendered for defendant over against B. W. Wiggins and the Salters, Masterson and Stockley on their covenants of warranty. From the judgment, the plaintiffs appeal, and the receiver, Norris, filed cross-assignments of error.

The trial judge upon proper request filed his findings of fact and conclusions of law, which are as follows:

"(1) That the said Mary Thomas League mentioned in the pleadings in this cause was granted to Mary Thomas in 1835. The north and south lines of said survey are parallel and run north 70 degrees east, and the east and west lines thereof are parallel and run north 50 degrees west. Each line of the survey is 5,330 varas in length and Big Sandy creek runs through the survey crossing the north line thereof nearer to the northeast corner than to the northwest corner thereof, and passing out of said survey across the south line thereof about 600 or 800 varas south, 70 degrees west, from the southeast corner thereof.

"(2) That said Mary Thomas died prior to the 2d day of September, 1842, leaving surviving her 11 children and heirs, viz., Wiley S. Thomas, Benjamin Thomas, A. Jackson Thomas, I. D. Thomas, Anna Thomas, Theophilus Thomas, S. D. Thomas, G. L. Thomas, Maria N. Roberts, wife of N. G. Roberts, Margaret Davis, the wife of E. K. Davis, and a daughter named ____, who married ____ Brownrigg.

"(3) All of the above-named children of Mary Thomas, except the two last named, and S. D. Thomas, on September 2, 1842, executed to S. D. Thomas a deed conveying to him the lower quarter of said league. This deed was signed by Maria Roberts and her husband, Noel G. Roberts, but it did not appear that her acknowledgment thereto was taken in accordance with the statute, the certificate of acknowledgment not showing that she was examined separate and apart from her husband, or that the instrument was explained to her, or that she declared that she did not wish to retract, but showing that her acknowledgment was taken as though she were a femme sole.

"(4) On March 5, 1846, said S. D. Thomas by S. W. Blount, attorney in fact, under a power of attorney, which was introduced in evidence, conveyed to Jacinto Aleix the lower quarter of the league.

"(5) Jacinto Aleix died January 2, 1861, and on the 13th day of July, 1872, his children conveyed to his surviving wife, Severinne Aleix, the lower quarter of said league, describing it as beginning on the southwest boundary thereof 2,665 varas south 50 degrees east from the most western corner of the league, and running thence north 70 degrees east 2,665 varas. Thence south 50 degrees east 2,665 varas to the southeast boundary line of the league. Thence south 70 degrees west with the east line of said league 2,665 varas to its most southern corner. Thence north 50 degrees west with the southwest line of said league 2,665 varas to the beginning, calling for marked bearing trees at each corner of the quarter, and calling for branches where the lines cross them.

"(6) Severinne Aleix, the widow of Jacinto Aleix, died on the ____ day of ____, 1873, and left surviving four children, viz., Edward, who is still living, Oscar, Leopold and Mary Amanda, wife of Joseph Bayle. Oscar married and died leaving surviving his widow, but no children.

"(7) On April 20, 1882, Edward Aleix conveyed to Leopold Aleix his interest in said lower quarter of said league, describing it by the same field notes given in said deed from the children of Jacinto Aleix to their mother, Severinne Aleix.

"(8) Leopold Aleix and Mrs. Bayle died before the institution of this suit, and all of their children except one are the plaintiffs in this suit, it being conceded on the trial by both plaintiffs and defendants that with the exception of that part of the land to which their rights are barred by limitation, they are the owners of 19/24 of such part of or interest in the land as Jacinto Aleix acquired through the deed to him from said S. D. Thomas.

"(9) From the year 1848 to the year 1900, with the exception of about six years, the said Jacinto Aleix paid taxes on 1,107 acres of said survey or redeemed the same from tax sales thereof.

"(10) About 1856, Jacinto Aleix had surveyed one quarter of said league. The field notes of said survey were introduced in evidence by plaintiffs, and they are the same as the field notes contained in the said deed from the heirs of said Jacinto Aleix to their mother. Severinne Aleix, and in said deed from Edward Aleix to Leopold Aleix.

"(11) There has never been any possession of any part of said Mary Thomas survey by Jacinto Aleix or any of his heirs, nor have any of them ever been on the land, except the plaintiff, Joseph Bayle, who inspected the land some eight or ten years since, but what part thereof he inspected does not appear.

"(12) That for more than 10 years and for about 14 years prior to the date of the deed executed by J. M. Mullins to W. H. Norris, receiver of the Tyler County Land & Lumber Company, conveying the pine timber situated on 160 acres of land out of said Mary Thomas survey, which tract of land and said deed are described in the first amended original answer herein of said Norris, as such receiver, the said J. M. Mullins claiming to have good and perfect title to said 160 acres of land, had held peaceable, continuous, and adverse possession thereof, cultivating, using, and enjoying the same, and paying all taxes thereof, and after the expiration of said period and after the execution of...