Kane v. Sholars

• Decision Date: 13 December 1905
• Citation: 90 S.W. 937
• Parties: KANE et al. v. SHOLARS et al.
• Court: Texas Court of Appeals

90 S.W. 937

KANE et al. v. SHOLARS et al.

Court of Civil Appeals of Texas.

December 13, 1905.

Appeal from District Court, Orange County; W. P. Nicks, Judge.

Action by O. R. Sholars and another against Dennis Kane and others. From a judgment in favor of plaintiffs, certain defendants appeal. Reversed.

Stark & Poole and James & Yeiser, for appellants. Hart & Sholars and S. W. Sholars, Jr., for appellees.

REESE, J.

Appellees, O. R. Sholars and S. W. Sholars, Jr., sued appellants, V. H. Stark and G. F. Poole, together with Dennis Kane and Coleman Fisher, in trespass to try title to recover lots 7, 8, and 14, in block A8, in the city of Orange; said lots being a part of the Nathan Cordrey headright survey. Coleman Fisher and Dennis Kane disclaimed. Stark and Poole answered by general demurrer, general denial, plea of not guilty, and plea of the 10-year statute of limitation. The case was tried by the court without a jury, and judgment rendered against defendants Fisher and Kane on their disclaimer, and also against Stark and Poole, for title and possession of the lots sued for. Motion for new trial having been overruled, Stark and Poole appeal.

Appellees claim title to the lots by chain of title beginning with a power of attorney from W. H., Anna S., and Drucilla W. Cordrey, sole heirs of N. C. Cordrey, to R. B. Russell and D. Call, who, acting under the power of attorney, sold and conveyed to Henry K. Sheldon, under whom, through several mesne conveyances, appellees claim. The property in controversy is a part of a tract of 1,280 acres patented to Nathan Cordrey by the republic of Texas, December 11, 1841, and is part of the tract described in the power of attorney and the various deeds thereunder down to appellees. The court found, as conclusions of law, that the title papers introduced in evidence by appellees vested title in them and that the evidence failed to establish a title by limitation in appellants.

Appellants moved to suppress the deposition of Wm. Cordrey, taken by appellees, on the ground that the same had not been returned by the officer by whom it was taken until six months after it had been taken. This delay is not explained in any way; but it appears that it was returned about a month before the first term of the court after the taking, at which the case was tried, and it is not claimed by appellants that they were in any way prejudiced by the delay, nor is it shown that appellees were in any way responsible for it. Article 2280, Rev. St. 1895, in prescribing the form and requisites of a commission to take depositions provides that it shall require the officer "to summon the witness before him forthwith * * * and to return without delay the commission and interrogatories, and the answers of the witness thereto." Article 2284, which prescribes particularly the duties of such officer, and which provisions have been always held mandatory and to be strictly complied with, makes no reference to the time within which depositions must be returned after having been taken. By the use of such vague and indefinite terms as "without delay" in a statute merely prescribing the form and requisites of the commission, we are led to conclude that these terms are meant to be directory, and that, in the absence of anything to show that the delay has prejudiced appellants or that appellees are chargeable therewith, the motion to suppress the deposition referred to was properly overruled. The delay of the officer, however, was a breach of official duty on his part, and is to be strongly condemned.

There is no patent ambiguity in the description of the land in the power of attorney from the Cordreys to Russell and Call. The land is described as being situated in Orange county, Tex., adjoining the town of Madison, and it appears with reasonable certainty that it is a part of the Cordrey survey, and there are full descriptive field notes giving the boundaries. The tract is further described as containing "all the land contained in said Cordrey survey not heretofore sold by N. C. Cordrey or his heirs or assigns." If, when it comes to apply this description to the ground, there should appear to be discrepancies and conflicts in the various calls in the description, this would not be a patent, but a latent, ambiguity. Brown v. Chambers, 63 Tex. 135; Hitchler v. Scanlan (Tex. Civ. App.) 39 S. W. 635. There was no error in overruling the objections to the admission in evidence of the power of attorney. The discrepancy between the names "N. C. Cordrey" in the power of attorney as the patentee of the land, and "Nathan Cordrey" in the patent, is immaterial. It sufficiently appears that they are one and the same person.

Appellants also objected to the admission in evidence of the deed from Call and Russell under the power of attorney to Henry K. Sheldon on substantially the same grounds as those urged to the power of attorney that is, that there was a patent ambiguity in the description of the land conveyed. The description of the land was substantially the same as in the power of attorney, differing only in being more full and perhaps more definite. There was no patent ambiguity. Nor was it a valid objection to the deed that it was a deed with special warranty, while the power of attorney only authorized a quit-claim. The instrument was still valid to the extent of the agents' authority, and operated to convey the land so far as their principals could do so. There was no error in admitting this deed in evidence. We cannot agree with appellants that the deed to Sheldon conveyed any more land than the agents were authorized by the power of attorney to convey. The description of the land in the deed is not exactly in the same terms as in the power of attorney, but it appears to us that it refers to and describes with substantial accuracy the same tract of land. The general description of the land as containing all of the land in the Cordrey survey not sold by Cordrey or his heirs renders sufficiently definite and certain the identity of the land conveyed with that authorized to be conveyed, and it is sufficiently shown that the land sued for is a part of this tract, and that it does not embrace any of the land sold by Cordrey. We may remark, however, that the land being described by definite boundaries which...