Davis v. George

• Decision Date: 15 February 1911
• Citation: 134 S.W. 326
• Parties: DAVIS et al. v. GEORGE et al.
• Court: Texas Supreme Court

134 S.W. 326

DAVIS et al. v. GEORGE et al.

Supreme Court of Texas.

February 15, 1911.

Certified Question from Court of Civil Appeals of First Supreme Judicial District.

Action by A. P. George and others against J. O. Davis and others. On a certificate as to the admissibility of certain evidence in action for trespass to try title, the evidence was held inadmissible.

E. P. & Otis K. Hamblen, Burke & Tarver, D. F. Rowe, T. M. Kennerly, J. H. Davenport, and Brockman & Kahn, for appellants. D. R. Pearson and C. R. Wharton, for appellees.

WILLIAMS, J.

A question as to the admissibility of certain evidence is certified by the Court of Civil Appeals for the First District, accompanied by a statement which shows the action to be one of trespass to try title involving in the way to be stated below the title to the tract of 10 acres of land marked on the following plat "Kinkler 10 acres according to the field notes of the deed":

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It appears from the certificate that prior to 1855 one Carl Grimmell owned the tract marked "Grimmell or Carraher 14 acres." In that year one Huddleston conveyed to Grimmell a tract of 50 acres described as follows: "Beginning at the northeast corner of the 14 acres (then owned by Grimmell); thence east 751 varas to a stake; thence north 293 varas; thence west 730 varas to the rim of a gully; thence down said gully to White Oak bayou; thence down White Oak bayou to the northwest corner of the 14 acres; thence east 408 varas to the beginning, containing 50 acres." It was asserted by appellees in the trial, and evidence was offered to show, that the call to begin at the "northeast" corner of the 14 acres was a mistake for the "southeast" corner; and it is stated in the certificate that, if the tract of 50 acres be thus located, it will include both tracts of 10 acres marked upon the map, while, if it be located in accordance with the call in the deed, it will include of those tracts only that before referred to. The bearing of this upon the controversy will appear. In 1856 Grimmell conveyed to Jacob Kinkler 10 acres described as follows: "Beginning at the N. E. corner of Grimmell's 14 acres; thence east 750 varas to a stake; thence north 74½ varas to a stake; thence west 750 varas to a stake; thence south 74½ varas to the beginning." There is no dispute about the location of any line or corner of the tract of 14 acres. Appellees, who were plaintiffs below, claim the land covered by this last description as it is written under bond for title from Grimmell made in 1866 and deeds in accordance therewith from his surviving widow in 1867 conveying lands including such 10 acres, and assert that there was a mistake in the older deed to Kinkler, in that it, too, called for the "northeast" corner of the tract of 14 acres as the beginning when the "southeast" corner was meant. Upon this contention the 10 acres sold to Kinkler would be the tract marked "Kinkler 10 acres according to appellees' claim." The certificate states that the land is now in the suburbs of the city of Houston. In support of this contention, appellees, over the objection of appellants "that the deed referred to from Grimmell to Kinkler was the best evidence as to the location of said land; that the questions and answers thereto were immaterial and irrelevant; that the deed was the best evidence and especially as Grimmell never owned any land south of the northeast corner of the Carraher (Grimmell) 14 acres, and his deed to Kinkler describing the land beginning at the northeast corner of the Carraher (Grimmell) 14 acres running east and thence north and thence west and south to the beginning is plain and unambiguous, and covers land he owned at that time; and that the evidence already introduced shows that Grimmell owned the land that he described in the deed to Kinkler and did not own...