Krider v. Hempftling, 10933.

• Decision Date: 08 February 1940
• Docket Number: No. 10933.,10933.
• Parties: KRIDER et ux. v. HEMPFTLING et al.
• Court: Texas Court of Appeals

137 S.W.2d 83

KRIDER et ux. v. HEMPFTLING et al.

No. 10933.

Court of Civil Appeals of Texas. Galveston.

February 8, 1940.

Appeal from District Court, Colorado County; Lester Holt, Judge.

Action of trespass to try title by John L. Hempftling and David Gustafson against George F. Krider and wife to recover title to and possession of certain lots, and for damages. From a judgment in favor of the plaintiffs, the defendants appeal.

Judgment affirmed.

John R. Cox and Lewis Fisher, both of Houston, for appellants.

Miller & Rutta, of Columbus, for appellees.

MONTEITH, Chief Justice.

This is an appeal in an action of trespass to try title brought by appellees, John L. Hempftling and David Gustafson, as plaintiffs, against appellants, G. F. Krider and wife, as defendants, to recover the title to and possession of lots Nos. 3, 4, and 5 in Block 19 of the platted subdivision of the P. K. Bartleson Survey in Colorado County, Texas, containing 15 acres of land, and for damages.

Appellees pled a formal suit in trespass to try title. Appellants answered by general demurrer, general denial, and a plea of not guilty. They specially pled the ten years' statute of limitation, Art. 5510, Revised Civil Statutes. In answer thereto, by supplemental petition, appellees pled that the lots constituting the 15 acres in controversy were surrounded by lands claimed and fenced by them and that said land had never been segregated, or in any manner separated by fences, but was embraced in an enclosure with appellees' other lands and that no part of said 15 acres had been cultivated or used by appellants for agricultural or manufacturing purposes.

One special issue was submitted to the jury, that of adverse possession under the ten years' statute of limitation. The jury answered said special issue in favor of appellees. Based on this verdict, the court rendered judgment in favor of appellees for the title to and possession of the land sued for.

The land involved herein consists of three lots of five acres each, located in a tract of 1125.1 acres out of the S.W. Quarter of the P. K. Bartleson survey of a league and labor of land. Appellees relied for recovery on and introduced in evidence, a chain of title from the sovereignty of the soil into themselves. Appellants relied mainly upon their defense of adverse possession of the land in controversy under the ten years' statute of limitation. They contended that the verdict of the jury was unsupported by the evidence and that the court erred in admitting in evidence certain instruments relied upon by appellees in their chain of title.

Under their first proposition appellants assign error in the action of the trial court in admitting in evidence, over their objections, a deed from W. H. Getzendaner et al. to J. R. Westmoreland conveying said tract of 1,125.1 acres, of which the land in controversy is a part, and a deed from Westmoreland conveying said land to George D. Wallace, for the alleged reason that the description of the land conveyed by said deeds does not cover the land involved in this suit.

The description of said 1,125.1 acres of land in each of said deeds calls to begin at a point in the S.E. line of the Bartleson survey, in the center of the Eagle Lake and Frelsburg public road, and to run thence S. 48½ W. 2,682 varas along the S.E. line of said Bartleson survey to a post in the N.E. side of the Eagle Lake and Ramsey public road and 22 varas N. 48½ E. of the N. boundary line of the Southern Pacific railroad; thence S. 41¾ W. along the N.E. side of said public road 2,362 varas to a stake; thence N. 48½ E. 2,690 varas to a point in the center of the Eagle Lake and Frelsburg public road; thence S. 41½ E. along the center of said public road to the beginning, containing 1,125.1 acres of prairie land.

It will be noted that the deeds in question each convey and describe said land by both field notes and artificial objects. The particular call upon which appellants' objections are based is: "Thence S. 41¾ degrees W. along the N.E. side of said public road 2362 varas to a stake." This call for course "S. 41¾ W." is in conflict with remainder of the call, "along the N.E. side of said public road", for the reason that if the call for course is followed and the call for said public road is ignored, the description does not include any portion of the land in controversy or in fact land in the Bartleson survey. On the other hand, the testimony in the record shows that said road at this point runs north 41¾ degrees west and that if the call for course in said second call be reversed to read "N. 41¾ degrees W." 2,362 varas from the post on the N.E. side of the Eagle Lake and Ramsey public road, referred to in the first call of said field notes, along the N.E. side of said public road, said field notes will close, all lines called for will reach the corners called for therein and will terminate at the beginning point, and said 1,125.1 acres of land will be perfectly described in each of said deeds.

The question to be determined, therefore, is whether said two deeds contain a sufficient description to enable the land intended to be conveyed thereby to be identified with sufficient certainty to be considered in appellees' chain of title.

The rule is well settled in this state that, in locating land lines, in case of conflicting calls, the order of dignity and control is: (1) Calls for natural objects; (2) calls for artificial objects; and (3) calls for course and distance, and that calls for course and distance must, in case of conflict, yield to calls for natural objects and artificial objects. Krider v. Wintermann, Tex.Civ.App., 108 S.W.2d 452; Stafford v. King, 30 Tex. 257, 94 Am.Dec. 304; Thatcher v. Matthews, 101 Tex. 122, 105 S. W. 317; Temple Lumber Co. v. Felts et al., Tex.Civ.App., 260 S.W. 228.

Further, it is held that a deed will not be declared void for uncertainty of description if it is possible by any rules of construction to ascertain from the description, aided by extrinsic evidence, what property it is intended to convey. Rhoden et al. v. Bergman et al., Tex.Civ.App., 75 S.W.2d 993; 8 R.C.L. page 1074.

In 14 Texas Jurisprudence, p. 987, it is said: "The description in a deed or contract, while it need not in itself fully and definitely identify the property conveyed, must contain certain sufficient particulars to afford or point out the means whereby identification may be completed by parol evidence."

In 14 Texas Jurisprudence, page 989, it is said: "The rule generally for determining the sufficiency of description contained in a deed is that if there is enough to enable a party familiar with the locality to identify the premises intended to be conveyed, to the exclusion of others, it will be sufficient. It is enough that the description points out and indicates the premises so that by applying it to the land it can be found and identified."

It was the manifest purpose of the parties to each of said instruments to convey land out of the Bartleson survey. There is no conflict in said field notes in so far as calls for distances are...