Humble Oil & Refining Co. v. Ellison, 1782-7292.

• Decision Date: 01 November 1939
• Docket Number: No. 1782-7292.,1782-7292.
• Citation: 132 S.W.2d 395
• Parties: HUMBLE OIL & REFINING CO. et al. v. ELLISON et al.
• Court: Texas Supreme Court

132 S.W.2d 395

HUMBLE OIL & REFINING CO. et al. v. ELLISON et al.

No. 1782-7292.

Commission of Appeals of Texas, Section B.

November 1, 1939.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit in trespass to try title by E. A. Ellison and others against the Humble Oil & Refining Company and others. Judgment for the defendants was reversed and remanded by the Court of Civil Appeals, 106 S.W.2d 1083, and defendants bring error.

Judgment of the Court of Civil Appeals reversed and judgment of the District Court affirmed.

Brachfield & Wolfe, Hill & Bath, and Frank C. Bolton, all of Henderson, Lasseter, Simpson & Spruiell, of Tyler, Bradley & Bradley, of Groesbeck, I. M. Williams, of Dallas. Fouts, Amerman & Moore and

Robt. F. Higgins, all of Houston, and F. L. C. Greer, of Waco, for plaintiffs in error.

W. H. Sanford, of Dallas, and Clower & Sewell, of Tyler, for defendants in error.

SMEDLEY, Commissioner.

Defendants in error Ellison, Wooley and Mrs. Wilson, joined by her husband, sued plaintiffs in error Humble Oil & Refining Company and others for the title and possession of a tract of land containing 8.1 acres in the Thomas J. Martin survey in Rusk County, specially pleading that they had acquired title by adverse possession of more than ten years. After defendants in error had introduced their evidence and rested, the trial court instructed the jury to return a verdict in favor of plaintiffs in error and rendered judgment accordingly. The Court of Civil Appeals reversed the trial court's judgment and remanded the case. 106 S.W.2d 1083.

Questions of ratification and estoppel are raised, but they need not be determined. We have reached the conclusion, after careful consideration of the evidence, that it clearly appears therefrom that the land in controversy is within, and not outside of, the boundaries of a tract of land conveyed by Mrs. L. E. Overton to J. Wooley, and consequently within the boundaries of the north part of said tract which was thereafter leased by J. Wooley and his wife, who is now defendant in error Mrs. Wilson, to C. M. Joiner, trustee.

On November 15, 1893, Mrs. L. E. Overton sold and conveyed to J. Wooley a tract of land out of the Martin survey, described in the deed as follows: "Beginning at the creek 45 vrs. of the S. W. Corner of John M. Harris Survey. Thence North 1390 vrs. to said John M. Harris N. W. Corner. Thence west 45 vrs. Thence north 200 vrs. Thence W 908 vrs. Thence South 1135 vrs. to the said creek. Thence S. E. with said creek to the beginning, containing two hundred and twenty four 3/4 th acres."

On March 30, 1927 J. Wooley and his wife executed and delivered to C. M. Joiner, trustee, an oil and gas lease describing the land leased as follows: "A part of the Thomas Martin H. R. Survey about 4 miles East of town of Overton, and being the same land conveyed to the undersigned by Mrs. L. E. Overton by deed dated Nov. 15, 1893 and of record in Vol. 43 pages 76-77-78 of the Deed Records of Rusk County, Texas, less 50 acres of land sold to C. E. Edwards, also 50 acres of land sold to Willis Wooley and one acre sold for School Building—leaving a balance of 123¾ acres more or less—Reference is here made to above deed for a complete description of said land, and containing 123¾ acres, more or less."

The tract here in controversy is a narrow strip of land 55.7 varas in width north and south and about 900 varas in length east and west, its north boundary line being at and along a fence built and maintained by J. Wooley and his wife as the division fence between their land and the land of Henry Sexton lying to the north. It is the contention of defendants in error that the small tract of land in controversy is not included within the boundaries of the land which was conveyed to J. Wooley by Mrs. Overton, that Wooley and his wife acquired title to the tract in controversy, not by or through the conveyance from Mrs. Overton, but by adverse possession, and that the said small tract was not leased by J. Wooley and wife to C. M. Joiner, trustee. Plaintiffs in error take the position that the tract of land in controversy is included within the boundaries of the land conveyed by Mrs. Overton to J. Wooley and within the boundaries of the land leased by Wooley and wife to Joiner, trustee.

The 224¾ acre tract conveyed by Mrs. Overton to Wooley is described in the deed as beginning at the creek 45 varas of the southwest corner of the Harris survey, thence north 1390 varas to the northwest corner of the Harris survey, thence west 45 varas, thence north 200 varas, thence west 908 varas, thence south 1135 varas to the said creek, thence southeast with the creek to the beginning. The surveyor, Pena, who testified for defendants in error, had no difficulty in finding the two corners on the creek. He testified that after running north from the beginning corner on the creek to the northwest corner of the Harris survey, thence west 45 varas and thence north 200 varas, he fell 55.7 varas short of reaching the fence which Wooley built as marking the north line of his land. If the northeast corner of the land described in the deed is fixed at the 200 varas point, that is, 55.7 varas south of the fence, and the north line constructed from that point, then the land sued for lies outside of the tract described in the deed. It is the theory of defendants in error, which was adopted by the Court of Civil Appeals, that the north line should be thus constructed. The surveyor further testified, however, that if the north line of the tract conveyed by the deed is constructed from the 200 varas point, then the length of the west line of the tract which he ascertained by measurement to the creek is 1026 varas instead of 1135 varas as described in the deed. It is further shown by the surveyor's testimony that if the north line is constructed from the 200 varas point the area of the tract conveyed by the deed will be 216¼ acres instead of 224¾ acres, as called for in the deed, a shortage of 8½ acres. If the line on which Wooley built and maintained the division fence between his land and the Sexton land to its north is taken as the north line of the land conveyed by the deed from Mrs. Overton, the east line of the tract described in that deed is excessive in length by 55.7 varas and the west line is short in length by 54 varas and the tract has almost exactly the acreage called for in the deed.

The substance of the testimony of defendant in error Mrs. Wilson, formerly Mrs. Wooley, is as follows: She was married to J. Wooley in 1892. He then as a tenant was living upon and farming the land which was conveyed to him by Mrs....