Huff v. Crawford

• Decision Date: 24 February 1896
• Parties: HUFF et al. v. CRAWFORD et al.
• Court: Texas Supreme Court

34 S.W. 606

HUFF et al. v. CRAWFORD et al.

Supreme Court of Texas.

February 24, 1896.

Error to court of civil appeals of Second supreme judicial district.

Trespass to try title by J. H. Crawford and others against R. E. Huff and others. From a judgment of the court of civil appeals (32 S. W. 592) affirming a judgment for plaintiffs, certain defendants appeal. Reversed.

Templeton & Patton and R. E. Huff, for plaintiffs in error. A. H. Carrigan, for defendants in error.

BROWN, J.

Eva Crawford and her husband, J. H. Crawford, E. A. Lester and her husband, N. J. Lester, E. N. Runnels, H. N. Runnels, John Runnels, Frank Runnels, and James Crawford (the last three being represented by their guardian, W. B. Wilson), sued R. E. Huff, C. F. Collins, S. Y. Collins, A. C. Kean, W. T. Coffield, W. H. Ballow, J. H. McDaniel, and Morgan Jones to recover the land in controversy. The date of filing the suit is October 13, 1890. It was dismissed as to Morgan Jones. Huff and C. F. and S. Y. Collins impleaded as their warrantors A. B. Hardin, Sr., A. B. Hardin, Jr., Blanche Collins, William Collins, and L. C. Stroud, who did not appear. A. C. Kean and W. T. Coffield impleaded their warrantor, J. W. Kay. Each of the defendants pleaded not guilty, and limitation of three and five years; the three-years limitation was abandoned on trial. Kean, Coffield, and Ballow disclaimed as to all of the land sued for except 150 acres described by metes and bounds in their answer, and as to the 150 acres pleaded not guilty, and limitation, as above stated. J. H. McDaniel, in addition to the pleas of not guilty and limitation, pleaded over against his co-defendants, asking to recover from them a given portion of the land, and for partition. The facts material to the questions to be decided by this court are in substance as follows: On May 2, 1838, the secretary of war of the republic of Texas issued to Thomas H. Garner a certificate for 320 acres of land designated as a bounty warrant, which was duly approved in 1859 by the commissioner of claims. Upon this certificate was written a transfer of the entire certificate to H. W. K. Myrick, which authorized patent to issue to Myrick in his own name, and was dated the 8th day of June, 1838, signed by Thomas H. Garner, witnessed by H. T. McGreen and John T. Patterson. It was proved that the name Thomas H. Garner, signed to the transfer on the certificate, was in the handwriting of Thomas H. Garner. In September, 1872, M. A. Cornelius had possession of the certificate, claimed to be the owner of it, with papers purporting to be a chain of title from Garner to himself, and delivered the certificate to W. F. Cummins, to be located and surveyed for the said Cornelius. W. F. Cummins, in the month of September, 1872, located the said certificate upon the land in controversy, had the same surveyed, and returned the field notes to the general land office. The exact date of the return does not appear from the testimony. On the 5th day of February, 1884, the patent was issued in the name of Thomas H. Garner. In 1883, Myrick conveyed the land to Cummins, who in the same year conveyed it to Huff and Collins. H. W. K. Myrick and Mary Black were married in the year 1837. Myrick died in 1845, without issue, leaving his wife surviving him, who died in the year 1856, leaving surviving her her only child and heir, a daughter, ____ Black, who died in the year 1888, having been previously married. The plaintiffs are the heirs at law of the daughter of Mrs. Myrick. There is no direct evidence in the record to show whether or not the transfer from Garner was actually delivered to Myrick, and nothing to show the possession of the certificate by Myrick or his wife or her heirs at any time, or any claim made by them to the certificate or the land at a date prior to the institution of the suit. Defendants Huff and C. F. Collins claimed the land under deed from persons admitted to be the heirs of Thomas H. Garner, which deeds were executed and recorded in the years 1887 and 1888; also under a chain of title from M. A. Cornelius. The S. P. R. R. survey No. 1 was located and surveyed on the 12th day of August, 1868, and the patent issued thereon in the year 1874. It was admitted that the defendants had title to this survey, and that it was an office survey, no lines being run or corners marked upon the ground. In the year 1854, 18 surveys were made in the same section of country in the name of John A. Scott, being numbered 1 to 18. Beginning with No. 1, they each successively called for the preceding survey. The field notes of several of these surveys called for marked trees. At the southwest corner of No. 8 the marked corner is found as called for in the field notes, but no marked tree or other object, natural or artificial, called for in the field notes of the succeeding surveys is found until the northwest corner of No. 12 is reached, which is identified by the marked trees called for. The southeast corner of No. 15 is also identified by the marked trees called for in the field notes. There are no marks found at the corners of 16 or 18.

Plat No. 1, as given below, shows the relative positions of these surveys as shown upon a sketch returned by the surveyor who made them, and as they were platted on the map of the general land office at that time, and were so platted on said map at the time S. P. R. R. survey No 1 was located. A sketch returned by the surveyor with the field notes of the S. P. R. R. survey No. 1 shows the position of the Scott surveys the same as in Plat No. 1 here given

Plat No. 2, given below, shows the relative positions of the same Scott surveys on the map in the general land office in 1889 and as they are claimed to be located upon the ground by the witnesses.

Plat No. 3 shows the position of the S. P. R. R. survey No. 1 in relation to the other surveys as given in the sketch map returned with the field notes of that survey by the surveyor who made the survey, and as it would be in relation to the other surveys if it was located with reference to them as they then appeared on the map in the general land office.

Plat. No. 4 shows the S. P. R. R. survey No. 1 as claimed by the defendants in its relation to the other surveys as they are upon the ground, and as its calls would place it if applied to the land as it is shown to be upon the ground.

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

It was proved on trial that to begin at No. 8 and locate the succeeding surveys by courses and distances as called for in the field notes would place them as shown upon plat No. 1, but to do this the calls for the marked corners of Nos. 12 and 15 must be disregarded. To locate them thus would place Nos. 15, 16, 17, and 18 about 1,000 varas further west than they are located according to plat No. 2, and as they are claimed to be actually surveyed upon the ground. It is also proved that to begin at the northwest corner of No. 12 and locate backwards to No. 9 would place Nos. 11, 10, and 9 about 1,000 varas further east than they are actually located upon the ground, which would practically have the same effect as to the relative positions of the different surveys.

The statement of facts in this case is very voluminous, and we have thus condensed and given what we regard as the most material facts bearing upon the questions presented on this writ of error. Upon trial had before a jury a verdict was rendered for the plaintiffs for all of the land in controversy except 45 acres, which was found for R. E. Huff upon his plea of limitation. This judgment was affirmed by the court of civil appeals, from which affirmance this writ of error is now taken.

Plaintiff in error assigns a number of grounds upon which it is sought to reverse the judgment of the district court, some of which need not be noticed in this opinion, but we will state the following grounds as being necessary for us to discuss in view of the fact that, in our opinion, this judgment must be reversed, and the cause remanded:

First. The defendants offered to prove by W. F. Cummins that M. A. Cornelius exhibited to him a complete chain of title for the Thomas H. Garner certificate, which was by the court excluded upon objection made by the plaintiff, which ruling is here complained of as error.

Second. The plaintiffs in error complain of the charge of the court wherein it in substance told the jury that the plaintiffs below had established their title to the land, because the charge assumed that the transfer of the...