Easterling v. Simmons

• Decision Date: 03 March 1927
• Docket Number: (No. 476.)
• Parties: EASTERLING et al. v. SIMMONS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

293 S.W. 690

EASTERLING et al. v. SIMMONS et al.^*

(No. 476.)

Court of Civil Appeals of Texas. Waco.

March 3, 1927.

Rehearing Denied April 14, 1927.

Appeal from District Court, Freestone County; A. M. Blackmon, Judge.

Suit by Jessie Easterling and others against Roy Simmons and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

White & White, of Mexia, and Holland, Bartlett, Thornton & Chilton, of Dallas, for appellants.

Bryant & Goar, of Wortham, Williford & Geppert, of Fairfield, Vinson, Elkins, Sweeton & Weems, John C. Townes, Jr., and R. E. Seagler, all of Houston, Thompson, Knight, Baker & Harris, of Dallas, and Wm. J. Rieker and Burney Braly, both of Fort Worth, for appellees.

GALLAGHER, C. J.

This suit was instituted by Jessie Easterling and others, appellants herein, against Roy Simmons and N. H. Lindley, appellees herein, to recover title and possession of an undivided one-sixth interest in a 13-acre tract of land out of the Robert B. Longbotham league in Freestone county, Tex. Four certain oil companies alleged to hold leases on certain parts of said 13-acre tract were also made parties defendants. Cancellation of said leases and an accounting for oil taken thereunder was the relief sought against them. The parties will be designated as in the trial court.

Plaintiffs claimed as heirs of Mrs. Rosa Bounds Easterling, deceased. They introduced in evidence a grant from Coahuila and Texas to Robert B. Longbotham, dated July 24, 1835, for a league of land surveyed in two tracts, one containing 4 labors and the other 21 labors; an order of the probate court of Freestone county, Tex., dated July 17, 1884, appointing commissioners to partition the estate of R. B. Longbotham, deceased; the report of the commissioners of partition so appointed, and a decree of said court setting aside to the heirs of John Longbotham, among other lands, a tract of 13 acres, designated as a part of lot 9 and described as beginning at the northwest corner of lot No. 4 as shown by a plat of said partition attached thereto; thence south 712 varas to a stake on south line of league; thence east 81½ varas to a 13-acre lot numbered 8; thence north 3 east 714 varas to stake in south line of lot No. 5; thence 119½ varas to the beginning. Plaintiffs then introduced evidence that the said John Longbotham, deceased, was a son of Robert B. Longbotham, the original grantee of said league; that he left surviving him six children, one of whom was Hannah Longbotham; that she married G. W. Bounds; that she died in 1878 and left surviving one child named Rosa Bounds; that Rosa Bounds married S. H. Easterling and died in 1897, leaving one child, Roy Easterling; that said Roy Easterling died July 24, 1921, leaving plaintiffs as his only heirs at law.

Defendants introduced in evidence a partition deed between R. B. Longbotham and the heirs of his first wife, then deceased, dated November 18, 1873, in which said heirs released to said R. B. Longbotham, among other lands, 821 acres off of the south part of said second tract of said original league. This deed recites that said land lies principally in Freestone county, and said 821-acre tract is the same tract partitioned by the probate court of Freestone county as shown by plaintiffs' evidence. Defendants then, over the objection of plaintiffs, introduced in evidence a deed from S. H. Easterling and wife, Rosa Easterling, to J. M. Murphy, purporting to convey 2 1/6 acres out of the R. B. Longbotham survey, and designating as a beginning point the southeast corner of John Longbotham's heirs' tract in the south boundary line of said survey. The sufficiency of the description contained in said deed of the land thereby conveyed, and consequently its admissibility as a link in defendants' chain of title, is the principal issue in this case and will be hereinafter discussed. Defendants introduced a regular chain of title covering said 2 1/6-acre tract from said Murphy to the defendant N. H. Lindley. They also introduced a regular chain of title covering the north 10 5/6 acres of said 13-acre tract from the other heirs of John Longbotham, deceased, to the defendant Roy Simmons. They also introduced evidence showing that prior to said deed from Easterling and wife to Murphy, the owners of the other five-sixths interest in said 13-acre tract had fenced all of the same except the 2 1/6 acres off the south end thereof, which said Easterling and wife purported to convey to said Murphy. They also introduced evidence showing that shortly after said Murphy received said deed he, or his subsequent vendees, took possession of said 2 1/6 acres off of the south end of said 13-acre tract and have held possession thereof continuously since said time, and that their title thereto and right to the possession thereof has never been questioned by the owners of the 10 5/6 acres off the north end of said tract.

There was a trial before the court, and a general judgment that plaintiffs take nothing against any of the defendants and that said defendants go thence without day and recover their costs. Said judgment is here presented for review.

Opinion.

Plaintiffs present as ground for reversal the action of the court in admitting in evidence over their objection said deed from Easterling and wife to Murphy. Said deed, so far as its terms are material to a consideration of the objections urged thereto, is as follows:

"The State of Texas, County of Freestone:

"Know all men by these presents: That we, Sam H. Easterling and Rosa Easterling, his wife, of the county of Navarro, state of Texas, * * * have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto the said J. M. Murphy, of the county of Navarro and state of Texas, all that certain lot, tract or parcel described as follows:

"A part of R. B. Longbotham survey; beginning at a stake in the S. B. line of said survey at the southwest corner of the John Longbotham heirs 26 acre tract; thence west with the S. B. line of said survey 81½ vrs. a stake at the southeast corner of the 26 acre tract; thence north 3 east 142 vrs. a stake; thence west 90 vrs. a stake in the W. line of the 26 acre tract; thence south 142 vrs. to the place of beginning, containing 2 1/6 acres of land on the W. side of the H. & T. C. R. road. * * *

"Witness our hands this the 7th day of November,

                A. D. 1896.                Sam Easterling
                                          "Rosa Easterling."
                

Said deed recited a consideration paid part in cash and part by note, and retained the vendor's lien until said note was fully paid. It was acknowledged before J. H. Love, a justice of the peace and ex officio notary public in and for Freestone county, Tex., on the day of its date, and thereafter on the 15th day of December, 1900, filed for record with the clerk of the county court of Freestone county, Tex. The substance of plaintiffs' objections to the introduction of said deed was that it did not state the name of the state or county in which the land purported to be conveyed was located; that the field notes therein called for the corner of a 26-acre tract as the beginning point and no such tract had been located, and that the description contained therein was not sufficient to identify any land.

The rule is general both in this state and elsewhere that where a deed or written instrument furnishes other sufficient means of identifying the property conveyed, the failure to state the town, county, or state where the same is situated will not render such instrument void or inoperative. The county in which the land so described is situated may be inferred from the residence of the grantor, the place of the acknowledgment, and the place of the filing and recording of the instrument, where the grantor has property in such county to which the description given in the instrument is reasonably applicable. Miller v. Hodges (Tex. Com. App.) 260 S. W. 168, 170; Bond v. Garrison, 59 Tex. Civ. App. 620, 127 S. W. 839, 842 (writ refused); Petty v. Wilkins (Tex. Civ. App.) 190 S. W. 531, 533, 534 (writ refused); Langham v. Gray (Tex. Civ. App.) 227 S. W. 741, 744, 745; Frazier v. Lambert, 53 Tex. Civ. App. 506, 115 S. W. 1174; Flegel v Dowling, 54 Or. 40, 102 P. 178, 179, 180, 135 Am. St. Rep 812, 19 Ann. Cas. 1159; Garden City Sand Co. v. Miller, 157 Ill. 225, 41 N. E. 753, 755; Bryan v. Scholl, 109 Ind. 367, 10 N. E. 107, 109; 8 R. C. L. p. 1077, § 133. The caption of the deed in question was, "The State of Texas, County of Freestone." It was acknowledged for record before a justice of the peace of Freestone county, acting in his capacity as ex officio notary public. It was filed for record in said county presumptively by the grantee therein. The evidence before the court at the time said deed was offered showed that there was such a survey in said county; that there was at the time of the execution and delivery of said deed a tract of land out of the same which had been set aside to the heirs of John Longbotham; that said tract was bounded on the south by the south boundary line of said survey; that it was 81½ varas wide; that its west boundary line ran north and south and its east boundary line north 3 degrees east. In all these particulars the description in said deed is applicable to the land in controversy. While it is true that said deed recited that both grantors and grantee resided in Navarro county at that time, we think there is some significance in the fact that the grantors went to Freestone county to execute and acknowledge the same. We think the trial court, hearing the case without a jury, was justified in inferring from the evidence before him at that time that the land intended to be described in said deed was situated in Freestone county, and in admitting the same in evidence for consideration together with all the other facts and circumstances in evidence tending to identify the land described therein.

We do not attach any importance to the...