Jackson v. Cato

• Decision Date: 20 October 1941
• Docket Number: No. 5341.,5341.
• Citation: 156 S.W.2d 302
• Parties: JACKSON et al. v. CATO.
• Court: Texas Court of Appeals

156 S.W.2d 302

JACKSON et al. v. CATO.

No. 5341.

Court of Civil Appeals of Texas. Amarillo.

October 20, 1941.

Rehearing Denied December 1, 1941.

Appeal from District Court, Wilbarger County; C. Y. Welch, Judge.

Suit in trespass to try title by Katherina Zipperle Jackson and her husband against C. H. Cato, wherein defendant filed a general demurrer. From a judgment for defendant, plaintiffs appeal.

Affirmed.

Jesse Owens and J. Shirley Cook, both of Vernon, for appellants.

Warlick & Bunnenberg, of Vernon, for appellee.

JACKSON, Chief Justice.

This suit was instituted in the form of an action in trespass to try title in the District Court of Wilbarger County by the appellants, Katherina Zipperle Jackson and husband, J. W. Jackson, against the appellee, C. H. Cato, to recover title and possession of a tract alleged to include 24.9 acres of land, a part of 448 acres, composed of Survey No. 39 in Block 9, containing 433 acres, and 15 acres out of Survey No. 37 in the same block, situated in Wilbarger County, Texas.

The tract in controversy is described as the west one-ninth of the east one-half of said 448 acres with metes and bounds as follows:

"Beginning at a bois d'arc post set in the south line of said Survey No. 39 for the S. E. corner of the West 224 acres of said Survey and the S. W. corner of this tract;

"Thence N. 72 05' E. 94 varas to a bois d'arc post set in the South line of said Survey 39 for the S. E. corner of this tract;

"Thence N. 18 W. at 950 varas set bois d'arc post, 1511.2 varas to a stake set in the North line of said Survey 39 for the N. E. corner of this tract;

"Thence S. 54 47' W. 98.4 varas to a stake set for the N. E. corner of said 224 acres and the N. W. corner of this tract;

"Thence S. 18 E. at 525 old bluff bank of River, at 532 varas to a willow post set on sand hill, from which water tower in Vernon bears N. 60 07' E., 1482 varas to the place of beginning;"

The appellee answered by general demurrer, numerous special exceptions, general denial, plea of not guilty and the statutes of three, five and ten years limitations and also alleged a division line between the tracts of appellants and appellee had been fixed and established by agreement in 1916 and had been recognized and maintained as such at all times since said date.

While the suit was filed as an action in trespass to try title the controversy resolved itself into a question of boundary.

In response to special issues submitted, the jury found that there was an agreed boundary line established between the tracts of land about the year 1916, a fence erected thereon and that such division line had been continuously recognized by the owners of the adjoining tracts as the boundary line between them. They also found in favor of appellee on limitations.

The court rendered judgment that appellants take nothing by their suit and defendant go hence with his cost.

When the appellants rested the appellee declined to offer any testimony and all parties closed.

The appellants assign as error the action of the court in refusing at their request to direct a verdict in their behalf and render judgment thereon awarding them title and possession to the land involved contending that the testimony was utterly insufficient to support the findings of a jury in favor of appellee on any of the defense issues pleaded and submitted.

The appellee, in reply to appellants' assignment based on the refusal of the court to direct a verdict in their behalf, insists that appellants were in no event entitled to recover because they failed to show that they deraigned their title to the land from the sovereignty of the soil; failed to show that appellants and appellee held under a common source but if it should be determined that common source of title was shown then appellants failed to show they had a complete and consecutive chain of title from such common source.

The appellants did not attempt to prove that their title was deraigned from the sovereignty of the soil but depended upon their showing of common source.

The record shows that on August 27, 1897, C. H. Silliman conveyed to J. N. Cato 448 acres of land, all of Survey 39, Block 9, and 15 acres out of Survey No. 37 in said block which was described in the deed by metes and bounds as follows:

"Beginning at a stake, mound and four pits, the southwest corner of Survey No. thirty-seven (37) Block No. Nine (9) on the North line of survey No. 25. Thence South 72 West at 362 varas, passing a stake, mound and four pits, the Northwest Corner of survey No. 25 1687 varas to a stake, mound and four pits. Thence North 18 West 1187 varas, a stake on South bank of Pease River. Thence down Pease River with its meanders North 54 3/4 East 1766 varas to a stake on bank. Thence South 18 East 1710 varas to the beginning, containing 433 acres.

"Second tract: Part of 320 acres known as survey No. thirty-seven (37) Block No. Nine (9) granted and patented to the Houston and Texas Central Railway Company on the 21 day of November, 1887, by patent No. 309, Volume 106, Abstract No. 276, and described by metes and bounds as follows: Beginning at the Southwest corner of said Section No. thirty-seven (37) Block No. Nine (9) mound and four pits. Thence North 18 West 1710 varas to the Northwest corner of said Survey, the south bank of Pease River. Thence down said river North 72° East 51 varas. Thence South 18 East 1710 varas, south line of said survey on the North line of survey No. twenty-five (25) Block No. Nine (9). Thence South 72 West 51 varas to the place of beginning, containing 15 acres. The land herein conveyed aggregates 448 acres."

J. N. Cato and M. E. Cato were husband and wife and to their marriage were born nine children, and the property above described acquired from C. H. Silliman was the community property of J. N. and M. E. Cato.

J. N. Cato died, the date not shown, but there was apparently no administration on the estate nor guardianship for the children and until a partition deed was executed between the wife and the children, M. E. Cato and the children held the 448 acres as tenants in common. Spencer et al. v. Pettit et al., Tex.Com.App., 2 S.W. 2d 422. On October 2, 1916, M. E. Cato, the wife of J. N. Cato, deceased, and the nine children, J. H. Cato, joined by his wife, Florence Cato, R. M. Cato, joined by his wife, Della Cato, R. D. Cato, joined by his wife, Sallie Cato, C. H. Cato, joined by his wife, Virgie Cato, E. V. Cato, joined by his wife, Berta Cato, Mrs. Mittie Leverett, joined by her husband, T. B. Leverett, Mrs. Lou Leverett, joined by her husband, M. M. Leverett, Mrs. Bettie Morehead, joined by her husband, J. W. Morehead, and Mrs. Ora Kester, joined by her husband, L. E. Kester, executed, acknowledged and delivered a partition deed by the terms of which they granted to M. E. Cato, their mother, all of the West one-half of said 448 acre tract of land. They granted, sold and conveyed to Mrs....