Bond v. Garrison

Decision Date14 March 1910
Citation127 S.W. 839
PartiesBOND et al. v. GARRISON et al.<SMALL><SUP>†</SUP></SMALL>
CourtTexas Court of Appeals

Appeal from District Court, Anderson County; B. H. Gardner, Judge.

Trespass to try title by William E. Bond and others, revived after his death in the name of John J. Phillips, his successor in interest, against Homer Garrison and others. Judgment for defendants, and plaintiffs appeal. Affirmed in part, and reversed and rendered in part.

P. N. Springer, for appellants. Gregg & Brown, for appellees.

REESE, J.

In this case William E. Bond and others, plaintiffs, sue in trespass to try title to recover of Homer Garrison and others, defendants, 600 acres out of a tract of 640 acres, being survey No. 3 granted to the International & Great Northern Railway Company. Bond died during the pendency of the suit, and John J. Phillips succeeded to all of his rights, as plaintiff. Of the defendants, B. P. and S. H. Adams, and J. M. Emmerson disclaimed as to all of the land sued for, and judgment was rendered against them and in favor of plaintiffs on such disclaimers. Homer Garrison set up title to a specific tract of 100 acres, and disclaimed as to the balance. The other defendants, Coon Warren, his wife, Mary Ann Warren, Tippie Hunter and her husband, John Hunter, and Alice Sullivan and her husband, Silas Sullivan claimed jointly another specific part of the land, and disclaimed as to the balance. All of these defendants, by written plea, admitted that plaintiffs had title to the land sued for except in so far as such title should be defeated by their respective claims of title under the statute of limitation of five and ten years, in themselves and those under whom they respectively claimed, which was specially pleaded. The case was tried without a jury, and judgment rendered for said defendant Homer Garrison for the land claimed by him, and for the other defendants, not disclaiming, for part of the land claimed by them, and for plaintiffs for the balance of the land sued for. From the judgment plaintiffs appeal. The court filed conclusions of fact and law which are in the record.

A brief statement of the respective titles of the parties is as follows:

On January 27, 1858, there was surveyed for J. Jacobs, by virtue of a bounty warrant issued in 1837, 320 acres of land in Anderson county, in two tracts, one of 280 acres and one of 40 acres. This case deals only with the former tract, which is described as follows: "Beginning at the southeast corner of the James Early 160-acre survey on the north boundary line of the Jose Pineda three-league grant; thence east with the north line of said Pineda, 790 vrs., to the southwest corner of the D. M. Thornton survey; thence north with the west line of the D. M. Thornton 160-acre survey at 950 vrs. past the northwest corner and at 2,000 vrs. a stake; thence west, 790 vrs., to a stake; thence south, 1,050 vrs., to the northeast corner of the Early survey; thence with the east line of the Early to the place of beginning, 2,000 vrs. In all which field notes were recorded in the surveyors' records immediately after the survey and sent to the General Land Office."

M. J. Cobb and her husband occupied this 280 acres from about 1863 to 1871. Cobb died, and his wife, Mrs. M. J. Cobb, by deed of date June 9, 1871, and recorded February 5, 1875, conveyed to Elbert Donnell a tract of land by the following description: "The J. Jacob headright of three hundred and twenty acres, three hundred acres out of said tract and bounded as follows: Bounded on the south by twenty acres belonging to P. Pagitt, on the east by Mr. Morgan's the Thornton 160 acres and P. Pagitt's, the Walter Clark headright on the north, by vacant land on the west by Wm. Foster deceased and the W. H. Stanley in all three hundred acres." The trial court finds, and we adopt such finding as supported by the evidence, that the following is a definite description of the land conveyed by said deed: "Beginning at the southeast corner of the James Early 160-acre survey on the north line of the Jose Pineda three (3) league grant; thence east with the north line of the Pineda to the southeast corner of the Thornton 160-acre survey; thence north with the west line of the Thornton and the west line of the Walter Clark survey, 2,000 vrs., to the northeast corner of the J. Jacobs 280-acre survey; thence southwest to the northeast corner of the Wm. Foster 80-acre survey; thence south with the east line of the Wm. Foster survey to the southeast corner of same on the north line of the James Early survey; thence east with the north line of said Early survey to northeast corner of same; thence south with the east line of the said Early survey to the place of beginning."

Elbert Donnell immediately took possession of said tract of land, caused his deed to be recorded February 5, 1875, and lived on the land, cultivating, using, and enjoying the same, claiming title to all of said land conveyed by said deed, by virtue of the deed, from June, 1871, and personally made crops on the land for the years 1872-1881. He moved off the place the latter part of the year 1881 (the exact date not shown, but after he had made a crop for that year). Coon Warren took possession when Donnell moved off, and continued to hold possession, making crops each year, and holding possession for and under Elbert Donnell until the land was conveyed to him by Donnell, which was done on September 26, 1895, and afterwards, with the exception of one year, which was either 1903 or 1904. On September 26, 1895, Elbert Donnell executed to Coon Warren a deed to the land, together with another tract of 20 acres to the south of it, describing the land conveyed as follows: "All of the following tracts or parcels of land situated in Anderson county, on the waters of Brushy creek about 20 miles north from Palestine, viz.: 20 acres of the Jose Pineda 3-league headright, on the north boundary line of said headright, bounded on the north by the J. Jacobs headright, and on the south by Jack Tatum's land, it being the same land deeded to me by P. Pagitt. And 320 acres of the J. Jacobs headright (known as the Cobb land) which is bounded on the north by the I. & G. N. R. R. Co. headright, and on the east by the Thornton and I. & G. N. R. R. Co. headright, on the south by the Jose Pineda 3-league survey, and on the west by the J. Early and I. & G. N. R. R. Co. headright."

The second of the two above-described tracts is the land in controversy, but the description does not embrace all of the land conveyed by Cobb to Donnell. The description excludes that portion of the land conveyed by Cobb to Donnell lying west of and between the J. Jacobs 280-acre survey and the William Foster survey of 80 acres, which was occupied, at the date of this conveyance, by the International & Great Northern Railroad survey No. 3; the land conveyed by Donnell to Warren being bounded on the west by said survey and the Early survey. Some time prior to 1875, the survey made for Jacobs became void, and was forfeited. This is admitted by appellees. On the 3d day of March, 1876, the International & Great Northern Railroad Company had all of the land embraced in the deed from M. J. Cobb to Elbert Donnell, together with other lands adjoining the same, in all 640 acres, surveyed under a valid certificate, the field notes of which were duly recorded in the surveyor's records of Anderson county and forwarded to the General Land Office, and patent issued thereon November 27, 1877. Appellants have regular chain of title to this land, including all of the land here in controversy, under this patent. Elbert Donnell during his occupancy paid taxes on the land described in the deed from M. J. Cobb to him for the years 1872-1880. The taxes were paid on land in the J. Jacobs survey. By deed of date November 5, 1901, Coon Warren and wife, Mary Ann Warren, executed to B. P. and S. H. Adams a deed to an undivided one-half interest in the said J. Jacobs 280 acres, describing it by metes and bounds. It is recited in the deed that Warren and wife had deeded one-half of said land to J. M. Emmerson. There was no evidence introduced as to this recited deed.

The following agreement was made by the parties and introduced in evidence: "It is further agreed and admitted as a fact that said plaintiffs have a regular, complete, and good and sufficient chain of transfers of said land from said patentee up to themselves, and that they are now the owners of all of said land, except the 40 acres hereinafter mentioned, and are entitled to recover judgment therefor against all of the defendants in this suit by introducing this agreement in evidence instead of their chain of title. But this agreement is only intended to be an admission that said plaintiffs have made out a prima facie case by reading it in evidence, and is not intended, nor shall it be construed, to prevent said defendants, or any of them, from defeating such prima facie case by pleading and proving upon the trial hereof that they, or some of them, have acquired title to said land, or some part thereof, by conveyances or limitation. But the burden of proof shall be upon them."

There was no error in admitting in evidence, over the objection of appellants, the deed from Cobb to Donnell. It is true that it is not stated in the face of the deed that the land conveyed was in either...

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