Kingston v. Pickins

• Decision Date: 01 January 1876
• Citation: 46 Tex. 99
• Parties: WILLIAM B. KINGSTON ET AL. v. WILLIAM M. PICKINS ET AL.
• Court: Texas Supreme Court

46 Tex. 99

WILLIAM B. KINGSTON ET AL.

v.WILLIAM M. PICKINS ET AL.

Supreme Court of Texas.

1876.

APPEAL from Delta. Tried below before the Hon. W. H. Andrews.

William B. Kingston and his sister, Mary E. Evans, joined by her husband, sued William Pickins and the heirs of Moses Belcher, deceased, claiming two ninths of a tract of one hundred and eighty acres, which had been the homestead of their deceased father, Thomas Kingston and his widow, Salina Kingston, and which it was alleged was the separate property of said deceased Thomas Kingston. Plaintiffs also alleged that defendants held by purchase the interest of the remaining heirs.

Defendants pleaded not guilty; statute of limitation of three, five, and ten years, and set up title in themselves.

The tract of land sued for was described in the petition as “part of the headright of Silas Evans, being one hundred and eighty acres sold to the said Thomas Kingston by John H. Portwood, by deed bearing date February 5, 1857,” * * being “two hundred and twenty, less forty acres, out of the three hundred and twenty acres survey patented to Silas Evans, patent No. 110; the forty acres being out of the northwest corner of said two hundred and twenty acres, which is described as follows, to wit: one hundred acres, beginning three hundred yards from the southeast corner of said three hundred and twenty acres survey; thence running north, to include the house in which John H. Portwood lived; thence west, so as to make one hundred acres. The other one hundred and twenty acres lying due north of the first hundred, in a square as nearly as possible, out of which last one hundred and twenty acres the forty acres are taken.”

On the trial, the plaintiffs, after proving their heirship, (with nine others,) as children of Thomas Kingston, deceased, and proving that Portwood had had possession of, and claimed by some kind of title under the patentee Evans, the land in controversy, offered in evidence the deed from Portwood to Thomas Kingston for one hundred and eighty acres out of the Evans three hundred and twenty acres tract; the field-notes and description in the deed being the same as set out in the petition, to which deed defendants objected, “because of uncertainty and want of description,” which objection was sustained, and the deed excluded. In connection with the deed, plaintiffs offered testimony showing that the house referred to in the deed was near the north boundary of the Evans three hundred and twenty acres tract, (the lines of which ran with the cardinal points,) and that a survey could not be made by the calls in the deed with the house on the first tract, but that it could be made by disregarding the call for the house; that the house would be on the second tract if surveyed by the other calls; that there had been a stake north of the southeast corner of the Evans tract for many years, and which was regarded as the corner of the Kingston tract.

The court instructed the jury to find for the defendants, and plaintiffs appealed.Hale & Scott for appellants.

MOORE, ASSOCIATE JUSTICE.

The construction of a deed, being a matter of law, is for the court. If, therefore, the land intended to be conveyed by it, be so inaccurately described that it appears, on an...