Houston Oil Co. of Texas v. Singleton, 2136.

• Decision Date: 12 November 1931
• Docket Number: No. 2136.,2136.
• Parties: HOUSTON OIL CO. OF TEXAS et al. v. SINGLETON et al.
• Court: Texas Court of Appeals

Page 479

44 S.W.2d 479

HOUSTON OIL CO. OF TEXAS et al. v. SINGLETON et al.

No. 2136.

Court of Civil Appeals of Texas. Beaumont.

November 12, 1931.

Rehearing Denied December 31, 1931.

Appeal from District Court, Orange County; E. M. Dodson, Judge.

Suit by the Houston Oil Company of Texas and others against L. Singleton and others. From an adverse judgment, plaintiffs appeal.

Reversed and rendered.

Williams, Lee, Hill, Sears & Kennerly and Andrews, Streetman, Logue & Mobley, all of Houston, for appellants.

O. R. Sholars, of Orange, Geo. E. Holland and E. L. Nall, both of Beaumont, and E. L. Reid, of Orange, for appellees.

WALKER, J.

In Orange county, the John Harmon survey lies adjacent to and to the west of International & Great Northern section No. 8. When this suit was filed, appellees L. Singleton and Southern Land & Lumber Company owned the Harmon survey, and appellants Houston Oil Company of Texas, Southwestern Settlement & Development Company and its trustees, Republic Production Company, and Kirby Lumber Company owned section No. 8. On February 19, 1896, the Harmon survey was owned by J. H. Singleton, under whom appellees hold, and section No. 8 by New York & Texas Land Company, Limited, under whom appellants hold. At that time, a dispute arose between these owners as to the location of the boundary line between the two surveys. Singleton claimed that the Harmon extended to the east to the line designated in the record as the Bland line, while the New York & Texas Land Company, Limited, claimed that section No. 8 extended to the west to the line designated in the record as the Nelson line. The controversy as to the location of the boundary line between these two surveys was settled by J. H. Singleton executing the following instrument:

"State of Texas, County of Orange.

"Know all men by these presents that I, Jos. H. Singleton, do hereby acknowledge and agree that the line as run by Thos. C. Nelson is the line of the John Harmon survey in Orange Co. Texas.

"Beginning at a stake set in a glade for the E. cor. of said Harmon Sur. from which a Pine 10" dia. Marked X. brs. N. 80-3/4 W. 14-3/4 vrs. a Pine 18" dia. marked X brs. S. 61-1/2 E. 45 vrs. Thence S. 40-1/2 W. with variation of 8 deg. 00', East 2453 vrs. to stake in edge of a prairie for the S. cor. of said J. Harmon sur. from which a P. O. 10" dia. mkd. X brs. S. 70½ E. 22½ vrs. a Bl. Jack 5" dia. mked. X. brs. S. 23-3/4 E. 6½ vrs. and a Pine 15" dia. mked. X. brs. S. 53 E. 19½ vrs;

"And I do hereby quitclaim to any and all improvements lying S. E. of aforesaid line and on Sec. 8 of the lands of the International Railroad grant in the said County of Orange, Texas, and now belonging to the New York and Texas Land Co., Ltd.

"In testimony whereof I hereunto sign my name this 19th day of Feb., 1896.

                                          "J. H. Singleton
                  "Witness
                     "Thos. C. Nelson
                     "Ed. Bland."
                

Appellees acquired their title with full knowledge of the existence of this instrument and of the circumstances under which it was executed. After this instrument was executed by Singleton, for a long time he recognized the Nelson line as the correct boundary line. Notwithstanding this settlement, appellees, claiming under J. H. Singleton, entered upon the disputed strip and cut the timber therefrom to the amount of 196,968 feet, which was of the reasonable market value of $10 per thousand. In addition to praying for title to the land lying between the Nelson line to the west and the Bland line to the east, appellants also prayed for judgment against appellees for the value of the timber cut from this land. L. Singleton answered by the usual pleas, and specially by pleading the ten years' statute of limitation (Rev. St. 1925, art. 5510). Southern Land & Lumber Company, who cut the timber under Singleton, answered generally, and prayed for judgment over against Singleton for any amount appellants might recover against it.

The trial was to a jury, and, on conclusion of the evidence, appellants asked for an instructed verdict in favor of the Nelson line, on the ground that appellees had failed to raise the issue of ten years' limitation, and further that the instrument above copied constituted a valid and binding settlement of the controversy, and further that all the evidence was to the effect that the Nelson line was the true boundary line. This request was refused, and the issue between the Nelson line and the Bland line was sent to the jury by question No. 1, and answered in favor of the Bland line. The issue of ten years' limitation was sent to the jury by questions 2, 3, 4, and 5, and all elements of ten years' limitation were found in favor of appellees; except by answering question No. 4 the jury found that the possession of appellees and those under whom they hold was not adverse to appellants and those under whom they hold. This answer determined the issue of limitation in favor of appellants. After the verdict was returned, appellants moved the court for judgment in their favor on the ground that the instrument above copied settled all boundary issues in their favor. This motion was denied, and judgment on the answer to question No. 1 was entered in favor of appellees, from which appeal has been duly prosecuted to this court.

Appellants ask that the judgment of the lower court be reversed and judgment rendered by this court in their favor on two grounds: (1) The instrument executed by J. H. Singleton constituted a binding settlement of the boundary issue; and (2) no evidence was offered against appellants' claim that the Nelson line was the true boundary line between the surveys. Appellees answered the first proposition by the following counter propositions: (1) The instrument relied upon was executed without consideration; (2) not having been executed by New York & Texas Land Company, Limited, the instrument was void; (3) the instrument evidenced a unilateral agreement in that no evidence was offered that New York & Texas Land Company ever accepted or recognized it as settling the boundary issue, and there was no evidence that it ever accepted or recognized the Nelson line as the true boundary line.

The facts under these propositions are as follows: The instrument in question, after its execution, passed into the hands of appellants and those under whom they hold, and was recorded by them on May 10, 1929, after this suit was filed. On the trial of this case, this original instrument was offered by appellants in evidence. There was also evidence that Thomas C. Nelson was the agent of New York & Texas Land Company, Limited, and acted as its agent in procuring this instrument; that a controversy existed between Singleton and New York & Texas Land Company, Limited, as to the location of the boundary line between these two surveys; that this instrument was executed by Singleton and accepted by Nelson as agent of New York & Texas Land Company, Limited, in settlement of this controversy; that for a long time Singleton recognized this Nelson line as the correct boundary line, and at all times since the execution of this instrument appellants and those under whom they hold have claimed to the Nelson boundary line. The following testimony, we think, fully sustained these conclusions: Mr. J. H. Singleton, son of J. H. Singleton, who executed the instrument, testified: "As to whether my father told me that, at the time he signed that boundary agreement fixing the south line of the Harmon survey as the Nelson line, there was a controversy existing between him and the New York &...