Long v. Shelton

• Decision Date: 03 March 1910
• Citation: 126 S.W. 40
• Parties: LONG v. SHELTON.
• Court: Texas Court of Appeals

126 S.W. 40

LONG v. SHELTON.

Court of Civil Appeals of Texas.

March 3, 1910.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

Action by L. D. Long against I. W. Shelton. From a judgment for defendant upon a directed verdict, plaintiff appeals. Reversed and remanded.

Todd & Hurley, for appellant. Hart, Mahaffey & Thomas, for appellee.

LEVY, J.

The suit was brought by appellant in trespass to try title to 177 acres of the Jonathan Cullom headright survey. The appellee plead not guilty. The trial was to a jury, and the court peremptorily instructed a verdict for the appellee. By proper assignment the appellant challenges the ruling of the court. There was error, we think, in the action of the court, requiring a reversal of the case. On the trial of the case appellant first rested his case on evidence by him, which he claimed showed that appellant and appellee claimed through the same common source, which was Francis Kirby, and that appellant's title was superior to that of appellee. It could not be held, we think, in the light of the bill of exception, that appellant had abandoned any right to recover under the common source, and was defeated of any right to recover under superior title from the common source, if shown by the record. Appellant, we think, proved under all the evidence in the record a common source, under which both he and appellee claimed the land. There were offered the deeds under which appellee deraigned title through Francis Kirby, and there was oral testimony elicited from appellee that he was claiming the land under his deed from James Kirby and wife, which directly came from the common source. The statute provides that it shall not be necessary for the plaintiff in a suit to deraign title beyond a common source. Article 5266, Rev. St. Having proved a common source, he was entitled to stand on that source of title, and proceed to prove the superiority of title thereunder. Appellant next offered in evidence a deed from Francis Kirby to himself, dated February 12, 1896. We assume from the record that the court ruled that the description in this deed was not sufficiently definite to make the deed a valid conveyance. The motion of appellee to peremptorily instruct the jury so urges, and the question is so argued in the briefs. There was error, we think, in instructing a verdict against appellant on this ground. The deed referred to describes the land conveyed as "being all the land belonging to Reuben Long and situated in Bowie county, Texas, and reference is here made for a further description of said land by deed from Mrs. Mahone to Arch Justice and filed for record on the 5th day of December, 1895, recorded in Book E of land records on pp. 36, 37. Also a deed from G. H. Crossland and wife to Gip Adkerson on January 13, 1853, and recorded January, 1853, in Book D of the land records of Bowie county on p. 74. Also deed from H. K. and E. L. Elliott to Henry Wilder and deeds from H. K. and E. L. Elliott to Elizabeth Duckett; one hundred and seventy-seven acres of the Jonathan Cullom H. R. survey." In connection with the deed appellant offered a patent issued by the Republic of Texas to Jonathan Cullom for 177 acres of land, and being the land described in the petition as the land sued for. Appellant also, in connection with the deed, read in evidence the field notes set out in a deed from the admitted heirs of Jonathan Cullom to Crossland, which were the same field notes described in the patent to the labor of land. None of the deeds referred to in his deed for further description of the land were offered in evidence by the appellant. Appellee, after offering his deeds in defense, proved that there were two Jonathan Cullom surveys in Bowie county about one mile apart, one for 177 acres of land, and the other for a league of 4,400 acres of land. The evidence shows that 177 acres constitutes the entire survey of the patent for the labor in suit. The parties rested the case, and the court intimated that a peremptory instruction to the jury would be given. Appellant asked for permission, which was granted, to offer further evidence, and did offer additional record evidence. He could not be held, we think, to have abandoned his claim under the common source.

After the record evidence was offered the court was of the opinion still that appellant had failed to prove his case, and was precluded from recovering. The ruling was upon two grounds. One ground, as before stated, was that the deed to appellant from the common source was not sufficiently definite to make the deed a valid conveyance in the proof in the case. The description in the deed was not so hopelessly uncertain as to make the conveyance, as a matter of law, void, and neither do we so understand appellee to contend. On its face the deed refers to other deeds for a description of the particular premises intended to be conveyed. By these deeds the description could be made certain and definite. But as these deeds mentioned were not...