Bryson v. Ferrill

• Decision Date: 07 March 1930
• Docket Number: No. 670.,670.
• Citation: 25 S.W.2d 1001
• Parties: BRYSON v. FERRILL.
• Court: Texas Court of Appeals

25 S.W.2d 1001

BRYSON v. FERRILL.

No. 670.

Court of Civil Appeals of Texas. Eastland.

March 7, 1930.

Appeal from District Court, Comanche County; Joe H. Eidson, Judge.

Suit by C. V. Bryson against W. C. Ferrill. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

G. E. Smith, of Comanche, for appellant.

Callaway & Callaway, of Brownwood, for appellee.

LESLIE, J.

In this suit the plaintiff, Bryson (appellant), sued the defendant, W. C. Ferrill, in form of trespass to try title and for recovery and possession of a tract of land specifically described in his petition, and alleged to be a part of the east 1/2 of section 26, E. T. R. R. Co. land, situated in Comanche county, Tex.

The defendant answered by general demurrer, plea of not guilty, verbal agreement establishing disputed boundary, and three and five years limitation. The demurrer was overruled, and in a trial before the court and jury the case was submitted upon special issues based upon three and five years statutes of limitation. These issues being answered favorably to the defendant, judgment was entered in his favor, and from that judgment the plaintiff prosecutes this appeal. At the conclusion of the evidence, plaintiff requested a peremptory instruction, which was overruled, and some of the plaintiff's propositions are based upon this action of the court.

That portion of the defendant's answer setting up a parol agreement as to the relocation of the fence and the establishing of a correct boundary line was eliminated by the court in his charge. No issue was requested thereon by the defendant, nor was the charge objected to on account of such omission.

The third proposition is to the effect that the court erred in permitting the witness J. B. Chilton to state that he formerly owned the northwest quarter of said section 26, and section 25 north of the same, and that a certain plat exhibited to him in the presence of the jury was made by one Nat Holman; the particular objections being that the plat exhibited before the jury was a mere ex parte document, had no verity, that Holman's work as a surveyor, as well as the plat, had nothing to do with the correct and true location of the lands in controversy, and the plat was not verified or identified by Holman, who was not present or a witness at the trial of this cause. The dimensions and distances indicated upon the plat represented the defendant's lands as lapping over upon the plaintiff's. The plat was not introduced in evidence, but the contents of the same appeared to be given before the jury in the manner indicated.

The defendant's claim to what is called the "new fence" — that is, the east boundary line of the land in controversy — is based upon a line running south from what he calls the "Holman Corner," and the materiality of the Holman plat and survey, from the standpoint of the defendant, is summed up in the last sentence of his testimony, which is as follows: "Holman showed me this corner here, the N. E. quarter of Sec. 26."

From what precedes it does not appear that the surveyor Holman was engaged at the time in making the original survey of the lands in controversy nor that Holman had knowledge of the facts in controversy. The plat and declarations of Holman were not shown to have been made in connection with the location of the boundaries of the land in controversy as originally made and located on the ground, nor to have been made by the one with knowledge or authority to speak upon such matters. As the evidence went before the jury, it was hearsay, and its admission was erroneous under the following authorities: Titterington v. Trees, 78 Tex. 567, 14 S. W. 692; Runkle v. Smith, 52 Tex. Civ. App. 186, 114 S. W. 865; Clay County Land & Cattle Co. v. Montague County, 8 Tex. Civ. App. 575, 28 S. W. 704; Cable v. Jackson, 16 Tex. Civ. App. 579, 42 S. W. 136.

We sustain the appellant's fourth proposition, which is as follows: "Where defendant in trespass to try title relies upon three or five years statute of limitation, it is essential that he show, in order to recover under the statute, that his adverse possession, if any, was held under deed or deeds that embraced the land in controversy within their own calls."

The plaintiff claims the land in controversy as a part of the east 1/2 of said section 26, patented to him and his predecessors in title, August 8, 1890. The defendant Ferrill claimed the same lands as being part of and embraced within the description of the N. W. 1/4 of said section, patented to him and his predecessors in title in 1898. In addition, the defendant relied upon the pleas of limitation noted. The plaintiff's grant and patent to the east half are senior to the defendant's patent, and, in the absence of any issue involving limitation, the plaintiff's right of recovery would be apparent to an extent even greater than that claimed in his petition, which stops at what is spoken of in the record as the "old fence," rather than what would appear to be the original true west boundary line of the east half of said section, or the northeast quarter thereof. As to the northwest quarter of said section, owned by the defendant, the evidence appears to establish with considerable certainty the northwest corner of the same, as well as the southwest corner thereof, which latter is identified by his patent as the "N. W. Cor. of the S. W. quarter." From said southwest corner of the defendant's land the next call is east 1,171 vrs. "stone mound N. E. Cor. said S. W. quarter, P. O. marked X S. 3 2/5 vrs." Due to this call doubtless arises the confusion with reference to the location of the true land lines between the litigants. Following the eastward course, 1,171 vrs. leads, according to the defendant's testimony, to a stone mound and a post oak marked as above indicated. According to the contention of plaintiff, this passes by the true southwest corner of the N. W. 1/4 (defendant's land) by a distance of 178 vrs., and it is the plaintiff's claim that the defendant's line in no event could pass beyond the northeast corner of the S. W. 1/4 of said section; that corner being called for in the defendant's patent and evidenced upon the ground by a stone mound.

If it be true that the stone mound and post oak at the extremity of the 1,171 vrs. call, or approximately situated there, be the true southeast corner of the northwest quarter of the section owned by the defendant, then, according to the testimony, the grant covered by the junior patent to the northwest quarter would lap over on the east half of said section owned by the plaintiff. Therefore, while the defendant's field notes call for the distance of 1,171 vrs. east, "stone mound N. E. corner said S. W. quarter P. O. marked X. S. 3 2/5 vrs.," the call for distance reaches a point coinciding with a stone mound and post oak marked "X" with bearing S. 10 E. 3.4, approximately the bearing called for in the patent. In other words, this particular eastward call would seem to correspond with the objects and monuments found upon the ground. In such case we think the principle announced in Duren v. Presberry, 25 Tex. 512, would control and rule this case. There it is said: "We know of no rule for the construction of grants which would give a controlling influence to a call for the corner of a survey over a call for bearing trees and marked lines, which are found upon the ground to correspond with the calls. The corner of a survey, though a good call, and one which may control mere course and distance, is not necessarily a more certain and material, or notorious object, than a marked line or marked trees called for in a grant, and will not necessarily control calls for those objects."

From what has been said it is apparent, and upon this record we believe it is conceded by appellee in his brief, that, beginning at the southwest corner of the defendant's land (identified as the...