McBride v. Farmers' & Merchants' Gin Co.

• Decision Date: 04 January 1913
• Parties: McBRIDE v. FARMERS' & MERCHANTS' GIN CO. et al.
• Court: Texas Court of Appeals

152 S.W. 1135

McBRIDE v. FARMERS' & MERCHANTS' GIN CO. et al.

Court of Civil Appeals of Texas. Dallas.

January 4, 1913.

Rehearing Denied January 25, 1913.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by J. D. McBride against the Farmers' & Merchants' Gin Company and others. From judgment for defendants, plaintiff appeals. Reversed and rendered.

Neyland & Neyland, of Greenville, for appellant. Looney, Clark & Leddy, of Greenville, for appellees.

RAINEY, C. J.

This is an action of trespass to try title and for the possession of a certain lot of land consisting of about one acre of land in Hunt county, Tex., brought by the plaintiff, J. D. McBride, against the Farmers' & Merchants' Gin Company, a corporation, and W. H. Gandy. The plaintiff, among other allegations, alleges that on or about the 10th day of November, 1882, he was the owner of the tract of land sued for, and that he caused same to be conveyed to Z. E. Gandy, with the following conditions and limitations, to wit: That the property was to be held by said Z. E. Gandy, his heirs and assigns, "so long as said premises or pools situated on said premises are used for the purpose and use of the gin and mill attached; the pool having been made for said purpose of holding water to run said gin and mill"; that the defendant the Farmers' & Merchants' Gin Company purchased the said lot of land from the legal heirs of said Z. E. Gandy; that the deed received by it contained the same words of limitation; that the defendants had ceased to use the premises or the pool situated on said premises as provided for in said instrument. Defendant answered by general denial, plea of not guilty, and improvements in good faith. A trial resulted in a verdict and judgment for the appellee, and McBride appeals.

The first question for decision is presented by appellee and is that appellant, under the facts, has no right to maintain this or any other action for the alleged breach of the deed conveying the "pool lot" to Z. E. Gandy.

The following statement, taken principally from the brief of appellee, shows the status of the parties, viz.: "For five or six years prior to November 10, 1882, William McBride, Sr., and W. J. McBride, Jr., owned and operated a cotton gin and grist mill at the town of Lone Oak. The mill and gin houses and machinery were located on what is called the `gin lot' and was a part of 40 acres of land owned by William McBride, Sr. The machinery was supplied with water from small surface pools on the lot of land in controversy, called the `pool lot,' located just south of and adjoining the `gin lot,' and this `pool lot' was a part of 40 acres of land belonging to W. J. McBride, Jr. On or prior to November 10, 1882, William McBride, father, and W. J. McBride, son, partners in the mill and gin business, sold out their said plant to Z. E. Gandy; the elder McBride and his wife conveyed to Gandy the `gin lot' on which the houses and machinery were located, and W. J. McBride, Jr., and his wife conveyed to Gandy the `pool lot' under and by virtue of the conveyance that has provoked this controversy. The conveyance of the `pool lot' by W. J. McBride and wife to Gandy was on November 10, 1882, and is in the form of a general warranty deed, except in the habendum clause the following language occurs: `To have and to hold the above-described premises with all and singular the rights and appurtenances thereto belonging unto the said Z. E. Gandy, his heirs and assigns, so long as said premises or pools situated on said premises are used for the purpose and use of the gin and mill attached; the said pool having been made for said purpose of holding water to run said gin and mills'—and concluding with the usual general warranty clause. After W. J. McBride and wife conveyed the pool lot to Gandy, under the deed just mentioned, th...