Henry v. Whitaker

• Decision Date: 23 October 1891
• Citation: 17 S.W. 509
• Court: Texas Supreme Court
• Parties: HENRY v. WHITAKER <I>et al.</I>

17 S.W. 509

HENRY v. WHITAKER et al.

Supreme Court of Texas.

October 23, 1891.

Appeal from district court, Bowie county; JOHN L. SHEPPARD, Judge.

Trespass to try title by W. L. and B. Whitaker and J. T. Roseborough against F. M. Henry. Judgment for plaintiffs, and defendant appeals. Affirmed.

F. M. Henry, in pro. per. H. C. Hynson, for appellees.

HENRY, J.

This was an action of trespass to try title brought by the appellees to recover a fraction of a block of land situated near the city of Texarkana. The original petition was filed on the 8th day of September, 1885. On the 28th day of September, 1886, plaintiffs filed an amended petition, in which the land sued for was described as follows: "A part of block number one of the T. B. Moores headright survey at or near the city of Texarkana, beginning at the south end of a division line between the five-acre tract of defendant and the premises of plaintiffs, being a point 368.40 feet from the S. E. corner of said block number one, on the south boundary line of said block number one; thence running west 127.5 feet; thence north, 7° east, 636.42 feet; thence east 30 feet; thence south to the place of beginning,—containing about one acre of land." Subsequently the plaintiffs caused a survey of the land to be made, and on the 1st day of October, 1889, they filed a second amended petition, in which the land was described as follows: "A part of block number one of the T. B. Moores headright survey near the city of Texarkana, beginning at the south end of a division line between the five-acre tract of the defendant and the premises of plaintiffs, being a point 369 14-100 feet west from the south-east corner of said block number one, on the south boundary line of said block; thence west 123 68-100 feet; thence north, 6¼° east, 366 feet; thence north, 21½° east, 45 feet; thence north, 82½° east, 35 feet; thence east 32 6-10 feet to said division line; thence south with the same 410 25-100 feet to the place of beginning, — containing 94-100 of an acre of land." The defendant pleaded not guilty, and the statute of limitations of three, five, and ten years. The cause was tried without a jury, and judgment for the land was rendered for plaintiffs. It was agreed that C. W. Moores and McDonald and wife were the common sources of title. The land was conveyed to one Nichols on the 8th day of February, 1876, and by Nichols to the defendant Henry, on the 28th day of July, 1879. The land conveyed to each of said grantees was described in the deed to Nichols as follows: "Situated in the county of Bowie, state of Texas, and a portion of the Thomas B. Moores survey of 337 acres, near the town of Texarkana, beginning at the S. E. corner of block number one; thence west with the S. B. line of said block ____ varas, a stake; thence north to the right of way of the Texas and Pacific Railway; thence with said railway to the east boundary line of said block; thence south with the said S. B. line to the beginning, so as to contain five acres of land off of the east side of said block number one, and south of said railroad." The deed from Nichols to Henry contained substantially the same description of the land conveyed, except that a lot in the N. W. corner was excluded from said deed. The plaintiffs held under a deed from Moores and McDonald and wife, dated the 10th day of April, 1884, in which the land conveyed was described as follows: "All of block number one, except that part of block number one heretofore deeded to the Texas and Pacific Railway Company for right-of-way purposes, except five acres of land out of said block number one, which five acres of land we do not include in this deed now belonging to F. M. Henry. The part of block number one which this deed is intended to convey is the western portion of said block number one, and is estimated to contain four acres."

Appellant contends that the court erred in permitting the surveyor, who made a survey of the five acres of land conveyed to Nichols, and of the land sued for by plaintiffs, to testify with regard to said surveys. The objections made and now insisted upon are as follows: (1) The pleadings do not make any question as to the boundaries of the land in controversy; (2) there was no order of court authorizing said survey; (3) the pleadings show that said survey was unnecessary; (4) the issue of boundaries was one to be decided by the court and not to be testified to by a witness. We do not think that any of these objections should have prevailed. The length of the first line called for in the deed to Nichols was not specified because it was intended for that line to be only long enough, when considered with reference to the other...