Hunter v. A. T. Morse's Heirs

• Decision Date: 01 January 1878
• Citation: 49 Tex. 219
• Parties: WILLIAM HUNTER ET AL. v. A. T. MORSE'S HEIRS.
• Court: Texas Supreme Court

49 Tex. 219

WILLIAM HUNTER ET AL.

v.A. T. MORSE'S HEIRS.

Supreme Court of Texas.

1878.

APPEAL from Harris. Tried below before the Hon. James Masterson.

Grace T. Morse, administratrix of the estate of A. T. Morse, deceased, brought an action of trespass to try title against William Hunter and others, for 357 acres of land, part of the A. C. Reynolds league.

The peculiarites in the petition as to description of land, and as to chain of title under which a recovery was sought, are carefully stated and discussed in the opinion.

The Reynolds league is situated on south side of Buffalo bayou, and fronting on its right bank. It had been transferred to R. M. Forbes, under whom all parties to the suit claimed.

It appears, that a tract of 500 acres was first sold by Forbes to Smith; then a tract of 928 acres to one Bailey, adjoining the Smith tract and east of it. Bailey's interest was subsequently purchased by J. M. Dozier. By some means, Forbes was induced to believe that there was a vacancy between the Bailey and Smith tracts, and subsequently sold to Parker (1) a tract of 327 acres, calling to begin on the bayou at northwest corner of the Bailey tract, and run up the bayou to the northeast corner of the Smith tract, &c.;--these two surveys adjoining, of course the deed calling for an imaginary vacancy described no lands;--and (2) a tract of 1,643 acres off the west side of the league. (The boundaries of this survey are a subject of discussion in the opinion.) The amount of these several sales makes 3,428 acres, thus leaving unsold, of 4,428 acres, (the full league,) 1,000 acres.

Subsequently, Forbes sold to R. G. Mills what is described in his deed as “all and singular a certain piece or parcel of land, containing 1,000 acres, and described as follows: In Harris county, and on Buffalo bayou, adjoining the city of Houston, being the undivided part of the league granted to Allen C. Reynolds.”

Parker, in correspondence with one J. W. Lawrence, a land agent, authorized him to sell the 357-acre tract, in his correspondence pointing out its situation on the league as east of the Smith tract. Indeed, Forbes' mistake seems to have placed the Bailey tract in the east part of the league, making a vacancy between it and the Smith tract. Lawrence, authorized by the letters, made a conveyance of the 357 acres, but describing the tract as given above in description of the first tract conveyed by Forbes to Parker.

Mills sold his interest in the Reynolds league to J. B. Sydnor. Parker subsequently (November 30, 1863) made a deed to one Chandler for 357 acres of land in the Reynolds league, but the description describes no land. Chandler's heirs, in subsequent conveyances, describe a tract of 335 varas off the east side of the league; and under these conveyances, through Chandler, the defendants claim. The defendants had pleaded not guilty, and suggested improvements.

On measurement, it was ascertained that the Reynolds grant was in excess 535 acres, and contained 4,963 acres.

Subsequently, A. T. Morse, J. B. Sydnor, and J. M. Dozier, owning all the Reynolds grant, except the 500 acres held by Smith by metes and bounds, had a survey made of the tract and a map prepared, with the subdivisions and parts to be taken by each distinctly marked. In the settlement, Morse conveyed to Sydnor 100 acres off the south end of his larger tract on the west side of the league, and received in the partition a tract of 300 acres on the east side of the grant.

The plat, as given in the transcript, is as follows, (omitting subdivisions of the Sydnor tract into small lots,) together with the agreement of partition:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

“We, the undersigned, owners and occupants of the above league of land, formerly granted to A. C. Reynolds, do hereby agree to the subdivision of the said league of land as made by J. J. Gillespie, deputy surveyor of Harris county, and shown by the above plat.

+--------------------------------------+
                ¦A. T. Morse, in two tracts¦2,269 acres¦
                +--------------------------+-----------¦
                ¦J. B. Sydnor, in one tract¦1,209 acres¦
                +--------------------------+-----------¦
                ¦J. M. Dozier, in one tract¦985 acres  ¦
                +--------------------------------------+
                

Given under our hands, at Houston, this 14th day of July, 1863.

+------------------------+
                ¦(Signed,)¦A. T. MORSE.  ¦
                +---------+--------------¦
                ¦         ¦J. B. SYDNOR. ¦
                +---------+--------------¦
                ¦         ¦J. M. DOZIER. ¦
                +------------------------+
                

Witness: Thomas McCarty, William Barnes.”

This was proved up for record September 23, and was duly recorded 24th of September, 1874.

The additional testimony is sufficiently given in the opinion. The widow and children, as heirs of A. T. Morse, made themselves parties plaintiffs.

The court instructed the jury, that as both parties claim under R. M. Forbes, it is not necessary to trace title further than to him. * * * “As the call in the deed from Forbes to Parker for 357 acres only has one line, there was nothing in that power of sale to operate upon; therefore, unless plaintiffs have established a right to the land occupied by the defendants, under and by virtue of the partition had between Morse, Sydnor, and Dozier, they must fail.

“Forbes, by deed dated 21st of July, 1857, duly recorded in Harris county, where the land is situated, July 31, 1857, conveyed to Mills, under whom Sydnor deraigns title, the undivided interest and title then held by Forbes, and the entire interest of Forbes, whether it was more or less than 1,000 acres, passed to Mills, and from Mills to Sydnor; and if the testimony shows that Sydnor conveyed to Morse the land sued for in plaintiffs' amended petition, then find for plaintiffs as heirs at law, and widow of A. T. Morse, deceased, against the several defendants shown to be in possession,” &c.

The jury found for plaintiffs, and judgment was rendered accordingly. The defendants appealed.W. P. & E. P. Hamblen and Crosby & Hill, for appellants.--We now proceed to discuss another branch of this cause, presented by the rulings of the court in the admission of proof, and the charge thereon. The charge is as follows: “Unless plaintiffs have established a right and title to land occupied by defendants, under and by virtue of partition had between Morse, Sydnor, and Dozier, they must fail. Forbes, by deed dated 21st of July, 1857, duly recorded in Harris county, where the land is situated, on 31st of July, 1857, in record book T, page 228, conveyed to Mills, under whom Sydnor derives title, the undivided interest and title then held by Forbes, whether it was more or less than 1,000 acres, passed to Mills, and from Mills to Sydnor; and if the proof shows that Sydnor conveyed to Morse the land sued for in plaintiffs' amended petition, described in exhibit B, then find for plaintiffs as heirs at law, and widow of Morse, deceased, against the several defendants shown to be in possession.”

The defendants below confess their astonishment--we might say surprise--at the attempt of the plaintiffs to insist upon this branch of the case, and more so at the rulings of the court in admitting the proof. They made objection to all of it, and reserved their points. Defendants had insisted that the plaintiffs must confine themselves to the title claimed through Lawrence as attorney; that they having especially pleaded that title, should be confined to it in their proof, and preserved the point in their bill of exceptions above referred to, and in a charge asked.

In plaintiffs' amended petition, filed November 6, 1874, this allegation is made: “But said A. T. Morse also had held and owned a perfect title to the tract of land described in exhibit B to their amended petition, filed August 8, 1874, the same in which they pray an order of survey, and that said A. T. Morse had held and owned said perfect title to said tract of 300 acres, more or less, by a regular chain of transfers and deeds from Robert M. Forbes down to him, (the links or papers, or copies thereof, which make said chain, will be shown the court,) and that whatever right said A. T. Morse obtained under said deed, executed by said attorney in fact, Lawrence, supports and sustains the title of said Morse to said tract described in said exhibit B to said amended petition.”

This is the only plea of plantiffs that could, by any possibility, admit proof other than the title through Lawrence as attorney. We submit, that the utmost liberality allowed only such proof of title as was not inconsistent with the pretended title acquired through Lawrence as attorney, and that plaintiff could not go into the broad field of proof, as in trespass to try title, under this allegation. Possibly, a title not inconsistent with, and which the Lawrence title would support, might have been introduced under this pleading, but certainly not a title inconsistent and foreign to the pretended one Lawrence conveyed. It is the privilege of a plaintiff to bring trespass to try title, and show whatever title, legal or equitable, he may have; but when he pleads his title specifically, he will be confined to it; and in this cause, unless he can connect the Lawrence title with such other title, his proof should have been excluded, and the court should have refused to charge upon it. The court determined otherwise, and if the court was correct, it devolves upon us to show that no title accrued to plaintiffs (appellees) by or through anything shown.

On this branch of the case, plaintiffs introduced a deed from R. M. Forbes to Robert Mills, dated the 21st of July, 1857, wherein was conveyed “all and singular a certain piece or parcel of land containing 1,000 acres, situated and described as follows: In Harris county, and on Buffalo bayou, adjoining the city of Houston, being the undivided part of the league granted to Allen C. Reynolds.”

Plaintiff then read deed from Mills to Sydnor for same land, dated the 27th day of October, 1862.

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