McKee v. Stewart, 1902-7884.

• Decision Date: 13 May 1942
• Docket Number: No. 1902-7884.,1902-7884.
• Parties: McKEE et al. v. STEWART et al.
• Court: Texas Supreme Court

Page 948

162 S.W.2d 948

McKEE et al. v. STEWART et al.

No. 1902-7884.

Commission of Appeals of Texas, Section B.

May 13, 1942.

Rehearing Denied June 10, 1942.

Error from Court of Civil Appeals of the Eleventh Supreme Judicial District.

Action by E. R. Stewart and others against Jesse McKee and others for title to and possession of a tract of land and recovery of the value of oil produced from a well drilled thereon by defendants. A judgment for defendants was reversed and the cause remanded by the Court of Civil Appeals, 150 S.W.2d 415, and defendants bring error.

Judgment of Court of Appeals reversed, and judgment of trial court affirmed.

John H. Thomas, of Dallas, for Mahoney.

Slay & Simon and Simon & Simon, all of Ft. Worth, for McKee, Taubert & Singer.

E. E. Fischer, of Houston, pro se.

Ramey, Calhoun, Marsh & Sheehy and Mayfield, Lee & Lantz, all of Tyler, for defendants in error.

SMEDLEY, Commissioner.

The suit is by defendants in error, Stewart et al., against plaintiffs in error McKee et al., for the title and possession of a small tract of land, 4.4 acres, in the James Jordan league in Smith county, and for the recovery of the value of oil produced from a well drilled on the land by plaintiffs in error. After trial before the court without a jury, judgment was rendered that defendants in error take nothing by their suit, and elaborate findings of fact were made by the trial court. The Court of Civil Appeals reversed the trial court's judgment and remanded the cause. 150 S. W.2d 415.

W. C. and R. F. Wiley, in the year 1858, became the owners of a tract of 320 acres in the north part of the Jordan league, and in the year 1863, Mrs. Parmelia Turner acquired a tract of 280 acres in the same league lying immediately west of the Wiley tract. The common corner of the Wiley tract and the Parmelia Turner tract, the location of which is undisputed, is on the north line of the league and the line between the two tracts, according to the descriptions in the deeds, runs from that point south a distance of approximately 1,600 feet to a small creek known as Wiltshire creek, and thence down the creek with its meanders. Mrs. Parmelia Turner, joined by her husband, by deed dated March 1, 1883, conveyed to Louis Robinson a 35 acre tract out of the northeast corner of her 280 acre tract, and on October 6, 1883, the same grantor, joined by her husband, conveyed to Benjamin Roberson, a tract lying immediately south of the 35 acres and described in the deed as follows:

"Beginning at the Southeast corner of G. A. Turner land; thence North 80 rods to a corner; thence East 74 rods to a corner; thence South 80 rods to a corner; thence West 74 rods with the North boundary of Alfred Bells land and meandering of the same to the place of beginning, containing thirty-seven acres."

The trial court made the following findings with reference to the 37 acre tract conveyed by Parmelia Turner and her husband to Benjamin Roberson and its relation to the 4.4 acres in controversy herein: "This deed calls for exactly 37 acres, that is, it does not call for `more or less', and the calls calculate exactly 37 acres, indicating that the transaction must have been understood as a sale of exactly 37 acres. Instead of calling for the east line of the 37 acres to run south from its N. E. corner to the creek and thence with the meanderings of the creek, etc., as called for in the deed to Parmelia Turner of the 280 acres, it calls for a direct straight east line of 74 rods. This east line of the 37 acres strikes the creek about 30 rods from the N. E. corner of the 37 acres, and runs thence on south to the S. E. corner of the 37 acres, leaving a parcel of 44/10 acres lying in the bend of the creek east of the east line of this 37 acres, which is a part of the 280 acres tract, and which was not included in the conveyance to Ben Roberson, and which was never conveyed by Parmelia Turner, nor by any one holding and conveying title to the 37 acres tract. This 4 4/10 acres is the land in controversy in this suit and belongs to the heirs of Parmelia Turner and their assigns unless title has been lost to them by limitation."

Thus the trial court found that the 4.4 acre area, the subject matter of this suit, lies immediately east of the tract that was conveyed by Parmelia Turner to Benjamin Roberson and not within the bounds of that tract.

The Court of Civil Appeals held, however, that it is an undisputed fact that the northeast corner of the Benjamin Roberson 37 acre tract is coincident with the southeast corner of the Louis Robinson tract, and further that the 4.4 acre tract in controversy awarded by the trial court's judgment to plaintiffs in error includes, according to the undisputed evidence, a strip of 79 feet off the east side of the 37 acre tract that was conveyed by Parmelia Turner to Benjamin Roberson.

Defendants in error claim title to the 4.4 acres for which they sue through deeds from and under Benjamin Roberson conveying the 37 acre tract and they also claim, through deeds from the heirs of Benjamin Roberson made in the year 1937, title which they assert Benjamin Roberson acquired by adverse possession of the 4.4 acres while he owned and resided upon the 37 acre tract. Plaintiffs in error claim title through deeds and oil leases from the heirs of Parmelia Turner.

It is our opinion, after careful examination of the statement of facts, that the findings of the trial court above quoted as to the location and boundaries of the area included in the deed to Benjamin Roberson are well supported by evidence, particularly by the testimony of the surveyor, Jo White, who was offered as a witness by defendants in error. This witness, who made several surveys on the ground, testified that a sketch prepared by him and offered in evidence by defendants in error correctly depicted the property as it is on the ground, including the various tracts shown on the sketch, among them being the Parmelia Turner tract, the tract conveyed by Parmelia Turner to Benjamin Roberson, and the 4.4 acres in controversy. During the course of his testimony and for the purpose of showing clearly the lines and corners of the several tracts, the witness placed on the sketch numbers marking the lines and corners. According to the sketch as prepared and marked by this witness and explained by his testimony, the northeast corner of the 37 acre tract conveyed to Benjamin Roberson is not a common corner with the southeast corner of the Louis Robinson 35 acres but is 79 feet west of that corner, and the 4.4 acre tract in controversy lies outside of and immediately east of the 37 acre tract conveyed to Benjamin Roberson, having for its west line the east line of that tract.

Defendants in error make the further contention that the deed from Parmelia Turner to Benjamin Roberson should be so construed as to convey all of the land then owned by the grantor, that is, the land as far east as Wiltshire Creek. It is argued that if the deed is not given that construction there would be reserved to the grantor two isolated small strips of land in the bends of the creek and that, under the rule announced in Cantley v. Gulf Production Co., 135 Tex. 339, 143 S.W.2d 912, and other decisions, it should be presumed that the grantor intended to include the small strips in the conveyance.

The contention cannot be sustained. The area owned by Parmelia Turner and not included within the metes and bounds set out in her deed to Roberson is not a long narrow strip or strips. It is substantial in size and irregular in shape, having for its east boundary Wiltshire creek, which bends to the east and gives to the excluded area a maximum width of about 197 feet. There is neither patent nor latent ambiguity to justify the consideration of extrinsic facts or circumstances in aid of the description contained in the deed. The rule invoked by defendants in error is one of construction to which resort is had only when uncertainty or ambiguity as to the land intended to be conveyed appears on the face of the deed or when the effort to apply the description to the ground gives rise to ambiguity. If there is no ambiguity there is no occasion for construction, and the description speaks for itself. Davis v. George, 104 Tex. 106, 110, 134 S.W. 326; Thomson v. Langdon, 87 Tex. 254, 258, 28 S.W. 931; Wilson v. Giraud, 111 Tex. 253, 263, 231 S.W. 1074; Gill v. Peterson, 126 Tex. 216, 223, 86 S.W.2d 629; Humble Oil & Refining Co. v. Ellison, 134 Tex. 140, 146, 132 S.W.2d 395.

In Cantley v. Gulf Production Co., 135 Tex. 339, 143 S.W.2d 912, and the authorities which it cites, there was uncertainty because the deed called for a road or a street or a railway right of way as a boundary without by express words indicating whether the grantor intended to convey or to reserve the fee that he owned in the road, street or railway right of way. In Shell Petroleum Corporation v. Landers, Tex.Civ.App., 107 S.W.2d 509 (application for writ of error refused), the rule was applied as an aid in resolving an ambiguity, a conflict between course and distance, that arose when the field notes were applied to the ground.

There is no ambiguity in that part of the deed from Parmelia Turner to Benjamin Roberson which describes the east line of the land conveyed. It is a straight line extending south from the northeast corner of the tract 80 rods to a corner. The creek is not made a boundary and there is no call for the creek.

Defendants in error argue that ambiguity arises when the description is applied to the ground, in that the east line falls in part east of the creek and that the deed thus includes two small strips of land east of the creek to which Parmelia Turner had no title. This argument erroneously assumes that the east line of the tract conveyed by Parmelia Turner to Roberson extends south from the southeast corner of the Louis Robinson tract instead of from a point 79 feet west of that corner as found by the trial...