Broxson v. McDougal

• Decision Date: 30 January 1885
• Docket Number: Case No. 1998.
• Citation: 63 Tex. 193
• Parties: ENOCH BROXSON v. JOHN MCDOUGAL.
• Court: Texas Supreme Court

63 Tex. 193

ENOCH BROXSON

v.JOHN MCDOUGAL.

Case No. 1998.

Supreme Court of Texas.

Jan. 30, 1885.

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                ¦[SEAL.]¦S. W. BLUNT, Clerk.” ¦
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APPEAL from Houston. Tried below before the Hon. J. M. Maxcy, Special Judge.

D. A. Nunn, for appellant, on the sufficiency of the description, cited: Faver v. Robinson, 46 Tex., 204;Shields v. Hunt, 45 Tex., 427;Woodson v. Allen, 54 Tex., 551;Flanagan v. Boggess, 46 Tex., 335;Kilpatrick v. Sisneros, 23 Tex., 117-136;Norris v. Hunt, 51 Tex., 615;Wofford v. McKinna, 23 Tex., 43.

W. B. Wall and Denson & Burnett, for appellees, on description, cited: Smith v. Chatham, 14 Tex., 322;Rains v. McMills, 14 Tex., 616;Hunter v. Morse, 49 Tex., 219;Freeman v. Brundage, 57 Tex., 253;Steinbach v. Stewart, 11 Wall., 566.

On the admissibility of the certified copy, they cited: R. S., arts. 2256, 4330; Hart. Dig., art. 260; Hutchins v. Bacon, 46 Tex., 415;Cowan v. Williams, 49 Tex., 395, 396;Hardy v. De Leon, 5 Tex., 239.

STAYTON, ASSOCIATE JUSTICE.

There are but few questions presented, which it will be necessary to consider in view of their controlling importance.

It is urged that the petition does not describe the land sought to be recovered with such certainty as is requisite in actions of this character; and that the demurrers which presented this question should have been sustained.

If it be admitted that the surveys or tracts designated as the Read, Thompson and Bell surveys or tracts actually exist (and this must be assumed to be true from the averments of the petition), then the description given of the land sought to be recovered is given with great accuracy, and must be held sufficient.

The real question would seem to be: Does the description of the land contained in the decree made in the action between McCall and the heirs of Mrs. Barnett cover the land described in the petition?

That was an action, so far as appears by the decree therein made, which is found in the record, in which McCall sought by decree of court to substitute a lost deed made by Mrs. Barnett and her husband to Wade and Wilson, through whom McCall claimed, in which he sought and obtained a decree vesting title in himself, and divesting the title of the heirs of Mrs. Barnett in land described in the decree, as well as substituting a deed made to Wade and Wilson.

The decree made in that case establishes the fact that on November 22, 1855, Mrs. Barnett, joined by her husband, made, executed and delivered a deed to Wade and Wilson for the land described in the decree.

The deeds through which the appellee claims the land, made subsequently to that made to Wade and Wilson, refer to that deed, in effect, for a description of the land by them conveyed.

It therefore only becomes necessary to inquire whether the land described in that decree covers the land sued for.

The description of the land as given in that decree is as follows: “Part of the John Moore league situated in Houston county, Texas, on the waters of Tantabogue creek, being 1,621 acres out of the south part of said league, beginning at the southeast corner of said league, a corner whence a black jack 10 in. dia. bears S. 68° E. 11 4/10 varas, another black jack 18 in. dia. bears S. 13° W. 8 4/10 varas; thence N. 54 1/2 E., the corner of a survey of land made out of said league for R. N. Read; thence south, said Read's line in a westerly direction to the lands of Daniel Atkinson; thence with the line of said Atkinson to the lands of B. F. Thompson; thence with the line of the said Thompson survey of 1,107 acres, out of said league, to said Thompson's southeast corner on the south boundary line of said league; thence south 35 1/2° E. with said league line to the place of beginning, containing 1,621 acres, more or less.”

It is not controverted that the Read survey, which is also a part of the Moore league, and contains about one thousand three hundred and sixteen acres, has not long been established. It is therefore unimportant whether the course called for from the southeast corner of the league to the Read corner on the league line be the true course of that line or not; for the point on that line of the league at which the Read corner is found will be the true corner of the land sued for, in whatever course that line of the league may run.

The Atkinson survey or tract is shown to be a part of what was originally the Read tract. The call to run with the lines of these two tracts is clear. The Thompson tract, if not actually established on the grant from the calls of the Thompson deed, may be established with certainty. It is probable that the line of the Thompson tract will not be a prolongation of the lower line of the Read and Atkinson; but, if so, this does not affect the certainty of the description; for from the westerly corner of these surveys, or the most westerly one of them, the line must run, whatever be its course, to the southeasterly corner of the Thompson, and thence with the line of that tract to its southeast corner on the league line; thence with the league lines to the beginning. There is evidently an omission, in the decree, of one line; but, the other three being established, that line must in the nature of things be the league line, running in a westerly direction from the beginning point in the decree, which is a corner of the Moore league, to the corner which would be designated as the southwest corner of the league. In no other way would the lines close, and in no other way would the evident intention of the grantors to convey about one thousand six hundred and twenty-one acres of land off the south part of the grant be carried out. About that area remained after former sales.

We are of the opinion that the description of the land given in the decree covers all the land between a line composed of the lower lines of the Read and Thompson tracts, and such...