Medlin v. Wilkins

• Decision Date: 26 October 1883
• Docket Number: Case No. 3317.
• Citation: 60 Tex. 409
• Parties: JOSEPHINE MEDLIN ET AL. v. JOHN WILKINS ET AL.
• Court: Texas Supreme Court

60 Tex. 409

JOSEPHINE MEDLIN ET AL.

v.JOHN WILKINS ET AL.

Case No. 3317.

Supreme Court of Texas.

Oct. 26, 1883.

ERROR from Bexar. Tried below before the Hon. George H. Noonan.

Suit by the plaintiffs in error for the purpose of trying the title to some thirty-eight town lots situated in the city of San Antonio.

The property sued for was described in plaintiffs' petition as “thirty-eight town lots situated in the city of San Antonio, … on the east side of the Madre Ditch, about one hundred and thirty varas below the Alameda, on the upper and lower side of North street, and numbered according to a plot made by G. Freisleben, city surveyor, as follows: … being the same property known as the Gertrudes de Torres suerte, and described in original grant and deed as follows: “One suerte of land with half a day's water, bounded on the north by the lands of Tomas Martines, west by the Acequa Madra, south by the Fuentes suerte, and east by vacant lands--having a front of one hundred and twenty varas on Acequia Madre.”

The defendants, by several answers, pleaded “not guilty” and the statutes of limitations of five and ten years. They also pleaded that the land in controversy was formerly a part of the property of Philip Dimmitt, deceased; that in May, 1845, W. E. Jones, administrator of the estate of P. Dimmitt, deceased, under proper orders from the probate court of Victoria county, where the administration was pending, sold the property in controversy to Volney E. Howard, under whom the defendants claimed; that the land was at that time, and for years prior thereto had been, known as the “Fuentes suerte,” was so known by the citizens of San Antonio, and was occupied and claimed as said suerte; that it commenced at the old stone gate in the east side of Madre ditch.

The parties agreed that the property in controversy was a part of the estate of Philip Dimmitt. The plaintiffs claimed as heirs at law of Dimmitt, and the defendants claimed under the sale made by W. E. Jones, administrator of the estate, to Volney E. Howard, in May, 1845.

The land in controversy was a part of the Gertrudes de Torres suerte.

The property sold by W. E. Jones, administrator, to Volney E. Howard, in 1845, was described in the deed of the administrator to Howard as a parcel of land … “owned originally by Ramon de los Fuentes, who sold to Jose Antonio de la Garza, who sold to Baron de Bastrop, whose executor sold to Philip Dimmitt; … bounded on the west by the main ditch, on the east by lands known at the time of the purchase by Baron de Bastrop as Royal Lands, north by other lands, at that time owned by Baron de Bastrop, and south by the Calle de los Cuartellos, fronting on main ditch three hundred varas, and running back along the Calle de los Cuartellos four hundred and forty varas, containing twenty-two acres, more or less.”

The deed from Howard to Evans gave the same description of the land given in the deed from Jones, administrator, to Howard. The deed from Evans to Beck described it as “bounded on the west by the main ditch, extending from the Goliad road up said ditch to an old stone dam pointed out by Jose Antonio de la Garza, who formerly owned said tract of land; bounded south by the Goliad road, extending four hundred and forty varas, and running northeast, as designated by the present line of fence; thence west to the said stone dam, containing thirty acres, more or less.”

Beck cultivated the property for some time and then cut it up and sold it out in town lots. The defendants claimed under this title.

It appears from the transcript that Dimmitt owned three suertes of land in the city of San Antonio, they being the Martines, Torres, and Fuentes suertes, which join each other.

The order of sale under which Jones sold required him to sell for cash, “with appraisement, a sufficient amount of property in the county of Bexar as will be sufficient to redeem the lands of said estate sold in March, 1844, for the taxes of the years 1842 and 1843, and to defray expenses of administration.”

Verdict and judgment for defendants. No space can be given for even a condensed statement of the evidence contained in the voluminous record.

A. M. Jackson, Jr., for plaintiff in error, on the alleged error of the court in emphasizing evidence bearing on a controverted matter where the evidence was conflicting, cited: Duffell v. Noble, 14 Tex., 655;Gray v. Burk, 19 Tex., 231-2;National Bank of Warsaw v. Currie, 44 Mo., 91; Parker v. Donaldson, 6 Watts & Serg. (Penn.), 132.

On the binding effect of the compromise decree he cited: Hardy v. De Leon, 5 Tex., 245;Browning's Adm'x v. Atkinson, 37 Tex., 633;H. & T. C. R'y Co. v. Hodde & Werner, 42 Tex., 467;Ellis v. Mathews, 19 Tex., 398.

Waelder & Upson, for defendant in error.

WATTS, J. COM. APP.

Upon the trial the court, among other things, instructed the jury as follows: “The jury will also find for the defendants if they believe that the plaintiffs, by their agreement, acquiesced in the north line of the Fuentes suerte as occupied by J. H. Beck. In determining this question, the jury may take into consideration the decree entered by consent in the case of James Dimmitt and others against Angel C. Torres and others, that is, if ratified by plaintiffs, and if the jury believe that the plaintiffs in this case are the same plaintiffs that were in the case against Torres, or that the present plaintiffs represent all the interests that were represented by the plaintiffs in that case.”

And the court refused to give the following instruction asked by plaintiffs in error upon that issue: “The plaintiffs further ask the court to charge the jury that they will disregard the judgment and petition in the case of Dimmitt et al. v. Torres et al., and not consider the same in arriving at their verdict.”

Plaintiffs in error assign as error the action of the court in giving the first and refusing the latter instruction. The only evidence in the record upon which the charge of the court is based is the consent decree in the case of Dimmitt and others v. Torres and others. Neither of the defendants in error were parties to that suit, nor does it appear that they are privies with any of the parties.

It may be assumed that the lots there involved were situated on the Torres and Martines suertes. The consent decree, after providing for a distribution of the lots between the contending parties, proceeds to give a general description of the parcel of land upon which they were situated, as follows: “The above mentioned lots of land are all parts and parcel of and contained in the following described tract of land, to wit: one suerte situated in the incorporated limits of the city of San Antonio, in the county of Bexar, state of Texas, on the east side of the San Antonio river, and of the upper Acequia Madre, and in that part of the city called ‘Alamo,’ entitled to twenty-four hours of water, situated on the south side of the ‘Alameda,’ and bounded on the north by said Alameda, on the west by said Acequia Madre, on the south by lands formerly belonging to the estate of P. Dimmitt, deceased, and lately to J. H. Beck, deceased, and on the east by lands of the said city of San Antonio, which were sold May the 10th, 1860. The said herein described suertes having a front of four hundred varas on said ‘Alameda,’ and containing sixteen acres of land.” That decree was made and entered on the 13th day of February, 1868, and this suit was commenced on the 18th day of July, 1868.

In the consideration of the question presented, it should be borne in mind that Jones, as administrator of Dimmitt's estate, had conveyed to Howard the Fuentes suerte, describing it according to the description in the title papers. Howard had conveyed to Evans by the same description. Evans, however, in his deed to Beck, instead of conveying a tract of twenty-two acres, more or less, conveyed thirty acres, more or less, naming therein a stone dam on the Acequia Madre as a corner, and bounded the land on the south by the Goliad road, reciting in the deed that it was the same land theretofore owned by Volney E. Howard, who purchased it at the administrator's sale of the property of Philip Dimmitt, deceased, as appeared from the county records.

Thus the point is narrowed down to this: Do the recitals in the consent decree, to the effect that the parcel of land in which the lots then in litigation were included adjoined on the south lands which “formerly belonged to the estate of P. Dimmitt, deceased, and lately to J. H. Beck, deceased,” furnish such evidence of a recognition of, and acquiescence in, that line, claimed by Beck as would authorize or support a finding of the jury to that effect?

The doctrine of acquiescence, as applicable to common boundary lines, usually has its foundation in lapse of time and matters in pais, and may be stated as follows: Where a particular line has been acquiesced in, or recognized by, adjoining owners as their common boundary, that affords a strong presumption that it is the true line. While the presumption is strengthened by lapse of time, yet no period has been fixed that will render such presumption conclusive; other considerations than the lapse of time must be considered. In this respect each case must be determined by its own particular circumstances. Floyd v. Rice, 28 Tex., 341.

But the lapse of time and such other circumstances have no relation to the question under consideration, which is, Do the parties, by that consent decree, recognize and acquiesce in the particular line claimed by the defendants in error? Howard purchased, and, so far as appears from the record, only claimed the Fuentes suerte, and no particular point is called for in his deed on the Acequia Madre as his upper corner.

The language in the consent decree relied upon by defendants in error, we think, is not susceptible of the construction that is implied by the charge of the court. It appears that the only reference to the matter in the...