Jack v. Dillon

• Decision Date: 31 January 1894
• Citation: 25 S.W. 645
• Parties: JACK et al. v. DILLON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 645

25 S.W. 645

JACK et al. v. DILLON.¹

Court of Civil Appeals of Texas.

January 31, 1894.

Appeal from district court, Zavalla county; R. W. Hudson, Judge.

Trespass to try title by James Jack and others against Levi Dillon. From a judgment for defendant, plaintiffs appeal. Affirmed.

W. H. Jack, T. G. Baker, and A. A. Dial, for appellants. Clark & Fuller, for appellee.

Conclusions of Fact.

JAMES, C. J.

The patent was for two-thirds of one league and labor of land to P. C Jack, of which J. De Cordora obtained the north one-third for locating the certificate. The plaintiffs were certain of the heirs of the patentee and their inherited interest was an undivided five-twelfths of the lower two-thirds of the survey. The defendant, Dillon, exhibited a chain of title in respect to said land, emanating from S. B. Jack, a son, and Harriet Jack, the mother, of the patentee, who were conceded to have owned an undivided seven-twelfths of the land. This chain of title is as follows: (1) Deed from Harriet Jack to A. C. Jack, conveying her right, title, and interest in the land. (2) Deed from A. C. Jack to S. B. Jack on September, 1871, conveying all his right, title, and interest acquired by him from his mother, Harriet Jack, and his own interest as an heir of P. C. Jack. (3) Deed from S. B. Jack to A. N. Demaret on January 18, 1880, conveying "all the right, title, and interest of S. B. Jack acquired by him of his father, A. C. Jack, and of A. C. Jack acquired from his mother, Harriet Jack, and A. C. Jack's interest as a brother and heir of P. C. Jack." (4) Power of attorney from Demaret to J. L. Truehart to sell the land in controversy, and referring, for more particular description of the land, to the deeds that are above mentioned. (5) Deed by Truehart, as attorney in fact, to Leander Shores, conveying all the lower two-thirds of the survey, referring, for more particular description, to the deeds from Harriet Jack to A. C. Jack, and from A. C. Jack to S. B. Jack, and from S. B. Jack to Demaret. This deed is dated on January 31, 1882, and is the first one to specify the number of acres, (2,086 acres.) (6) Deed from Shores to W. H. E. Smith, dated March 1, 1887, and recorded on June 12, 1882, conveying land described the same as in next preceding deed, and for more particular description refers to the several transfers from Harriet Jack to Demaret, and specifies the number of acres as 2,086, being the lower two-thirds of the P. C. Jack survey. (7) Deed from Smith and wife to Levi Dillon, dated November 8, 1886, recorded December 16, 1886, conveying 2,086 acres of the P. C. Jack survey, and referring, for more particular description, to the several deeds from Harriet Jack down to Smith.

W. H. E. Smith leased the land to the guardian of J. R. Black on June 12, 1882, for two years, in consideration of the payment of taxes. On June 12, 1884, this lease was renewed for a period of three years for the same consideration; and on March 15, 1887, it was leased from Levi Dillon, who had then bought from Smith, by J. R. Black and George Holmes, for a period of five years, at a semiannual rental of $52.15, with right, on the part of lessor, to enter and take possession in a certain time after default in the payment of rent. Neither of these leases was placed on record. In May, 1888, this latter lease was terminated for nonpayment of rent, and the land leased to William Cassin, and Cassin allowed Black and Holmes to keep their stock in the pasture until he (Cassin) took possession by fencing the entire tract, which was in the summer of 1888, and Cassin has since been in possession of all of the land. The character of possession held by Black, and Black and Holmes, appears from the following facts: In 1878 or 1879 a fence was erected by third persons inclosing about 2,000 acres of land, a part of which — about 400 acres — extended over on the land in controversy. This pasture was made to inclose a water hole, and its purpose was to entrap wild cattle that came there to water. It was there in 1882, when the tract in question was leased to Black, who paid for the fence to those who had erected it, and repaired it, and from that time on it has been used under such lease and renewals, the lessees keeping up the fence, and using it for their cattle exclusively; but that part of the tract in question outside the inclosure has been open and used by stock generally, until Cassin fenced it all, in the summer of 1888. No other use of any of the land has been made than indicated above. There was evidence that Black paid the taxes on this land for the years 1884, 1885, and 1886, that Dillon's agent paid them for 1887, and that Cassin has paid them since. The suit was filed on February 28, 1891.

Conclusions of Law.

The one question in this case is whether or not defendant has...