Miller v. Southland Life Ins. Co., 2929.

• Decision Date: 18 January 1934
• Docket Number: No. 2929.,2929.
• Citation: 68 S.W.2d 558
• Parties: MILLER et al. v. SOUTHLAND LIFE INS. CO. et al.
• Court: Texas Court of Appeals

Page 558

68 S.W.2d 558

MILLER et al. v. SOUTHLAND LIFE INS. CO. et al.

No. 2929.

Court of Civil Appeals of Texas. El Paso.

January 18, 1934.

Rehearing Granted in part February 8, 1934.

Appeal from District Court, Henderson County; Ben F. Dent, Judge.

Suit by Ambrosia Miller and husband against the Southland Life Insurance Company and others. Judgment for defendants, and plaintiffs appeal.

Affirmed in part and in part reversed and remanded.

This is a suit by Ambrosia Miller and husband, P. E. Miller, against the Southland Life Insurance Company and M. K. Miller, to recover a parcel of land in Athens, Tex., a part of large lot No. 4, described by metes and bounds as follows:

"Beginning at the Southwest corner of said Large Lot No. 4;

"Thence North 288 feet to a stake for corner, the South boundary line of right of way of T & N O Railroad Company;

"Thence in an Easterly direction with the South boundary line of the right of way of the T & N O R R Co to a point where the said right of way intersects the East boundary line of said Large Lot No. 4, a stake for corner;

"Thence South with the East line of said Lot No. 4 to the Southeast corner of same;

"Thence West 300 feet to the place of beginning."

It was alleged that a portion of the land had been the residence of plaintiffs since January 1, 1900, and the balance was business homestead. That portion asserted to be the residence homestead begins "at a point on the West boundary line of said Large Lot No. 4, and the South Boundary Line of said T & N O R R Right of way, and running thence in an Easterly direction with said right of way to the East boundary line of said Large Lot No. 4, thence South 60 feet; thence in a Westerly direction parallel with the South boundary line of said Railway right of way to the West boundary line of said Large Lot No. 4; thence North with said West boundary line 60 feet to the place of beginning."

The defendant M. K. Miller, who is the son of plaintiffs, claims the land in controversy as the owner thereof.

The insurance company has a deed of trust lien upon the property dated September 25, 1928, executed by M. K. Miller and wife.

A peremptory charge in favor of the insurance company was given and verdict returned in accordance therewith.

As between the plaintiffs and M. K. Miller, the case was submitted upon special issues.

The first question submitted was whether the plaintiffs had abandoned the property as a homestead at the time it was conveyed to M. K. Miller.

Conditional upon a negative answer to the first question additional questions were submitted upon the issue of limitations and improvements by M. K. Miller.

The first question having been answered in the affirmative the other questions were not answered.

Upon the verdict and finding stated, judgment was rendered in favor of the defendants.

On January 1, 1900, the record title was in P. E. Miller. The property was community.

By general warranty deed dated July 13, 1920, recorded December 28, 1920, P. E. Miller conveyed to the Athens Pottery Company, an unincorporated joint stock association. The field notes read:

"Beginning at the Southwest corner of said Large Lot No. 4:

"Thence North 228 feet a stake for corner;

"Thence in an Easterly direction with the South boundary line of the right-of-way of the T & N O RR Co to a point where said right-of-way intersects the East boundary line of said Large Lot No. 4, a stake for corner;

"Thence South with the East Boundary line of said Large Lot No. 4, to the Southeast corner of same;

"Thence West 300 feet to place of beginning."

By deed of April 6, 1923, recorded October 24, 1923, P. E. Miller, J. E. Miller, and Paul Hable, as trustee of said association, conveyed by the same description to the Athens Pottery Company, a corporation.

By resolution of November 28, 1927, acknowledged and recorded December 14, 1927, the president of said corporation was authorized to sell to M. K. Miller the plant of said corporation. The plant referred to was situate upon the land in controversy.

Pursuant to such resolution, said corporation by its president, P. E. Miller, by deed dated November 28, 1927, recorded December 14, 1927, conveyed to M. K. Miller by description the same as in foregoing deeds.

By deed dated September 25, 1928, recorded September 26, 1928, M. K. Miller conveyed by same description to H. B. Seay, in trust, to secure payment of certain notes of the grantor in favor of the Southland Life Insurance Company.

The minutes of a meeting of the board of directors of the Athens Pottery Company corporation, held June 12, 1926, read:

                       "Fort Worth, Texas, June 12, 1926
                

"Meeting of the Board of Directors of the Athens Pottery Co., Inc., in the office of the Company at Fort Worth, Texas, on June 12th, 1926, at three P. M., there being present the following members:

"Mr. P. A. Hable of Fort Worth, Texas, Mr. P. E. Miller, and Mr. M. K. Miller, of Fort Worth, Texas, and Mr. J. L. Riley of Dallas, Texas. This being a quorum the meeting was called to order, and the following resolution passed; where as on July 13th, 1920, P. E. Miller, being the owner of part of large lot number 4 of the town donation of Athens, Texas, deeded to the Athens Pottery Co., an un-incorporated joint stock association, the tract of land as set forth in above, with intention of retaining a small parcel of land 50 feet wide, running parallel with Prairieville Street, and running east and west 60 feet. By mistake in drawing up the deeds the deeds were made in such manner that P. E. Miller retained a strip of land 41 feet wide and 322 feet long.

"Whereas, it is the desire of the board of directors, and of P. E. Miller, personally, to rectify this mistake, we now offer this resolution:

"Resolved: That the officers of the Athens Pottery Co., Inc., who are the successors of the Athens Pottery Co., a joint stock association, are hereby authorized to execute a deed to P. E. Miller, personally, deeding to him 50 feet by 60 feet, the boundaries to be as follows: Being part of large lot number 4, as shown by the town plat of the town of Athens, Texas, beginning at a point 202 feet south and 60 feet east of the northwest corner of said large lot number 4. A stake in south boundary line of right of way of Texas and New Orleans Railway Company, thence east 240 feet stake for corner in south boundary line of said right of way at a point of said right of way crosses east boundary line of said large lot number 4, thence south 50 feet to stake for corner in east boundary line of said large lot number 4, thence west 240 feet stake for corner, thence north 50 feet to beginning.

"This will be in exchange for a deed wherein P. E. Miller will deed to the Athens Pottery Co., Inc., the land that it was his intention to deed at the time he executed deed to the joint stock association on date of July 13th, 1920.

                                          "J. L. Riley
                                          "P. A. Hable
                                          "M. K. Miller
                                          "P. W. Miller."
                

By unrecorded deed dated September 18, 1925, acknowledged June 12, 1926, the Athens Pottery Company, Inc., by P. E. Miller, president, conveyed to P. E. Miller that part of large lot 4, described as follows:

"The lot herein conveyed begins 202 ft. South of the N W corner of said Large Lot 4, a stake in the S B line of Texas New Orleans Railway Co. right-of-way. Thence South 50 ft. stake for corner in W. B. line of said Large Lot 4. Thence East 60 ft. Stake for corner. Thence North 50 ft. stake in S. B. line of said Right-of-way. Thence West with said Right-of-way to the beginning."

This deed recites that it was in consideration of $10 and the execution by the grantee to the grantor of a deed to that part of lot 4, described as follows:

"Beginning at a point 202 ft. South and 60 feet East of the N W corner of said Large Lot No. 4, a stake in S B line of Right-of-way of Texas & New Orleans Ry Co. Thence East 240 ft. stake for corner in S B line of said Right-of-way at a point where said Right-of-way crosses E B line of said Large Lot 4. Thence South 45 ft. to stake for corner in E B line of said Large Lot 4. Thence West 240 ft. stake for corner. Thence North 45 ft."

This deed was attested by M. K. Miller as director and treasurer.

By unrecorded deed dated June 12, 1926, P. E. Miller conveyed to the Athens Pottery Company, Inc., that part of lot 4 described as follows:

"Beginning at a point 202 ft. South and 60 ft. East of the N W corner of said Large Lot No. 4, a stake in S B line of Right-of-way of Texas & New Orleans Railway Co. Thence East 240 ft. stake for corner in S B line of said Right-of-way at a point where said Right-of-way crosses E B line of said Large Lot 4. Thence South 45 ft. to stake for corner in E B line of said Large Lot 4. Thence West 240 ft. stake for corner. Thence North 45 ft. to the beginning."

This deed recites that it was in consideration of $10 and the grantee executing a deed to P. E. Miller of a part of lot described as follows:

"The lot herein conveyed begins 202 ft. south of the N W corner of said Large Lot 4, a stake in the S B line of Texas & New Orleans Railway Co., Right-of-way. Thence South 50 ft. stake for corner in W B line of said Large Lot 4. Thence East 60 ft. stake for corner. Thence North 50 ft. stake in S B line of said Right-of-way. Thence West with said Right-of-way to the beginning."

Bishop & Holland, of Athens, for appellants.

Seay, Malone & Lipscomb, of Dallas, and Wynne & Wynne, of Athens, for appellees.

HIGGINS, Justice.

The question which first arises in this case is one of boundary. It arises out of the fact that the west line of the land in controversy measured from the southwest corner of lot 4 north to the Texas & New Orleans right of way is 288 feet in length, whereas the distance call of the west line of the tract conveyed by P. E. Miller by deed dated June 13, 1920, is 228 feet.

In this connection appellees...