Carley v. Parton

• Decision Date: 12 November 1889
• Citation: 12 S.W. 950
• Parties: CARLEY <I>et al.</I> <I>v.</I> PARTON.
• Court: Texas Supreme Court

12 S.W. 950

CARLEY et al.

v. PARTON.

Supreme Court of Texas.

November 12, 1889.

Commissioners' decision. Appeal from district court, Limestone county; SAM R. FROST, Judge.

Action of trespass to try title, brought by G. W. Parton against A. B. Carley and J. H. Smith. Judgment for plaintiff, and defendants appeal.

L. J. Farrar, for appellants. Burrow & Kincaid, for appellee.

COLLARD, J.

There was evidence sufficient to support the finding of the court below that Parton, the plaintiff, and Pringle, in 1878, while the latter owned and lived on the land now claimed by defendants, and under whom they claim, agreed to have the disputed line between them run out and established by McLendon, dividing the 640 acres into two equal parts, both parties concurring therein. It is not our province, in such case, to reverse the finding of the court.

Outside of this, however, if there had been no agreed location of the division line, there is evidence tending to show that the court was correct in fixing the boundary where he did. The line, as established by the court, divides the land into two equal parts, and gives to plaintiff the land on the north of the line. Plaintiff claimed under the heirs of Thomas Johnson, deceased, and defendants, under Johnson's widow, Sarah Johnson; the land having been their community property. The heirs sold the north half of the survey, and Mrs. Johnson sold the south half. None of the parties pretended to convey more than one-half of the land. There was never, so far as the record shows, any division line between the heirs and Mrs. Johnson; they conceding to her the right to sell the south half, and she conceding to them the right to sell the north half. In 1855, before she sold the south-west quarter section to J. M. Straughn, in anticipation of buying the land, the latter had the survey run out, extending it as far north as defendants claim it to be, marking the north line. At this time Mrs. Johnson and the heirs of Johnson were in Washington county. In 1859 she made the deed to Straughn, calling for the north-east corner at a stake from which a post oak, 12 inches in diameter, bore north, 5 deg. west, 65 varas; and witness, Phillips, who was present when the line was run, says there was such a tree at the north-east corner as run; that he pointed out the tree to Parton about the time he bought from the heirs, (a statement denied by Parton.) But there is no evidence showing that any of the parties knew that the line was too far north; none that Mrs. Johnson knew it, for her deed only purported to convey the south-west quarter, and calls for the east and west lines as 860 varas long, while they must be extended considerably over that to reach the line. Nor is there any pretense that the heirs of Johnson were in any way connected with the transaction, or knew anything about it. When the heirs conveyed to plaintiff, the description was for their interest in the north half of the section, calling for abutting surveys, and to the "south by the one-half of the Johnson survey and lines." This description does not indicate that the heirs were intending to adopt the Straughn line as their south boundary, or that they knew there was such a line. When Willie Straughn conveyed the 80 acres, or north half, of this quarter section to Pippin, the call for witness trees at the north-east and north-west corner was dropped, and he merely called for a stake in the prairie at each of the corners, without bearing trees, fixing the length of the east and west lines at 430 varas. The same description was followed in other mesne conveyances, until we come to the last deeds of Pringle to the defendants, made to one in 1883 and to the other in 1885, after the dispute arose, and when it was known the Straughn line was too far north. In Pringle's deeds he made the east line of the 80 acres 457 varas long, instead of 430 varas, as in Willie Straughn's deed, and the west line 483¾ varas long, calling to run north to the original division line made by the Johnson heirs, thus assuming to designate the Straughn line. So we see there is nothing to show that the Johnson heirs were bound by the Straughn line, and that the court was justified by the facts, without regard to the agreed line between Parton and Pringle, in establishing the division line in the center of the 640-acre survey.

It follows from the above that the three-years statute of limitations will...