Pierce v. Texas Rice Development Co.

• Decision Date: 02 November 1908
• Citation: Pierce v. Texas Rice Development Co., 114 S.W. 857, 52 Tex. Civ. App. 205 (Tex. App. 1908)
• Parties: PIERCE v. TEXAS RICE DEVELOPMENT CO.
• Court: Texas Court of Appeals

114 S.W. 857

PIERCE v. TEXAS RICE DEVELOPMENT CO.

Court of Civil Appeals of Texas.

November 2, 1908.

Rehearing Denied December 10, 1908.

Appeal from District Court, Matagorda County; Wells Thompson, Judge.

Action by the Texas Rice Development Company against J. E. Pierce. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Gaines & Corbett and Lane, Jackson, Kelley & Wolters, for appellant. Proctor, Vandenberge & Crain, for appellee.

PLEASANTS, C. J.

This is a suit in form of an action of trespass to try title, brought by the Texas Rice Development Company against appellant, J. E. Pierce, to recover 129 acres of land alleged to be a part of the Edward L. Holmes survey in Matagorda county. In addition to the usual allegations in an action of trespass to try title plaintiff alleges, in substance, that it purchased the land in controversy from W. C. Moore, paying him therefor the sum of $9 per acre, that said Moore purchased same from the executors of the will of Abel H. Pierce, deceased, paying therefor the sum of $5 per acre, and that the said Moore and the said executors in conveying said land entered into covenants of general warranty, binding themselves to warrant and forever defend the title to said land in their said vendees, their heirs and assigns. The prayer of the petition is for service upon the said Moore and said executors, and for judgment against Pierce for all of the land sued for, and in the alternative for judgment against said Moore and said executors on their said warranties for the purchase price of any portion of said land in which plaintiff may fail to show title. The defendant Pierce answered by plea of not guilty, and by special pleas of limitation of 3, 5, and 10 years. The defendants Moore and executors of the estate of Abel H. Pierce by their answers admitted the execution of the warranty deeds, as alleged in plaintiff's petition, and each of said defendants especially denied that the defendant J. E. Pierce had any title to the land, and joined in plaintiff's prayer for the recovery of the land against him. The trial in the court below was by a jury, and resulted in a verdict and judgment in favor of plaintiff.

The only issue raised by the evidence was that of boundary. If the land in controversy is a part of the Holmes survey, plaintiff was entitled to recover. If not included in the boundaries of said survey, defendant Pierce was entitled to a verdict, unless estopped from asserting title thereto by reason of facts hereinafter set out. The evidence was conflicting upon the issue of boundary, and the record shows that that issue was not passed upon by the jury, and it would therefore be improper for us to express any conclusion upon this fact issue. The Holmes survey, which, according to the patent by which it was granted by the state, contains 258 acres of land, was conveyed by the defendant J. E. Pierce to Abel H. Pierce by deed of general warranty on July 24, 1887. This deed describes the land as follows: "That certain tract of land containing two hundred and fifty-eight acres granted to Edward L. Holmes, lying and being situated in Matagorda county, and is situated between Cash's creek and the east Coranchua, and adjoins the G. Payne and Nathaniel Reed grants." After the death of Abel H. Pierce his executors sold the Holmes survey, along with other lands belonging to said estate, to the defendant W. C. Moore. After executing the contract of sale to Moore, but before the execution of the deed to him, the executors had the land surveyed. According to this survey, the 129 acres in controversy, which is within the inclosure and in the possession of the defendant J. E. Pierce, is a part of the Holmes survey. After this survey was made, and before the execution of the deed to Moore, A. P. Borden, one of the executors, had a conversation with the defendant Pierce which is thus detailed by Borden: "I saw him [meaning J. E. Pierce] in the hospital at Galveston. I think it was in March some time. Mr. Leckie had made a survey before —the year previous—and he had compiled his field notes, and I was down at Galveston one day and met Mr. John E. Pierce out at the hospital. I went out to see Mr. Pierce. He asked me how much the survey [meaning the part of the E. L. Holmes survey] covered. I told him 129 acres, and he said that Leckie did not get within a mile of it. I said, `You gave him the starting point,' and he said [meaning Mr. Pierce] that he [Leckie] did not get within a mile of it, and that he [Pierce] knew right where it was [meaning the Holmes survey]. I said, `I want to get it right before we deed this property.' Mr. Pierce said, `Send him back out there. I will show him right where it is' [meaning Mr. Leckie]. Mr. Pierce says, `He won't survey for me' [meaning Leckie]. I says, `Yes, he will.' I told him I would have Mr. Leckie go back down there, and if he could convince him [Leckie] that he was wrong in the first survey, I would pay all expenses, and that if he did not convince him [meaning Leckie] that he [meaning Mr. Pierce] was right, that he would have to pay him [Leckie]. I told him that, and he said that it was a very satisfactory agreement with him. That was the understanding we had." Borden further testified as follows: "Mr. Leckie made another survey. After the second survey Mr. Leckie made no report to me, and I did not pay him for the survey. Was never called upon to pay it. Our agreement was this: If Mr. Pierce convinced Leckie that he [Leckie] was wrong, I was to pay for the survey; otherwise Mr. Pierce was to pay for it. I do not know whether the survey was ever paid for or not. I never was called on to pay for it, and never asked any questions about who paid for it. I did not make a deed to Mr. Moore until after the second survey had been made under that agreement. Mr. Pierce never made any complaint to me after the survey was made, and I conveyed the land to Mr. Moore afterwards. I held up the deed until survey was made. I depended upon the agreement with Mr. Pierce as to the second survey." At the time of the conversation above quoted the defendant Pierce knew that Borden was having the land surveyed for the purpose of conveying it to Moore. Pierce testified in the case, and did not deny this conversation further than to say he did not remember it. He admitted, however, that he paid Leckie for making the second survey. The land in controversy is included within the field notes of the Holmes survey, as set out in the deed from the executors of Abel H. Pierce to defendant Moore. As before stated, the testimony as to whether it is included in the original field notes of the Holmes survey is conflicting, and that issue was not determined by the jury. Upon this evidence the trial court, at the request of the executors of Abel H. Pierce, gave the jury the following instruction: "If you believe from the evidence that the executors of the will of A. H. Pierce were contemplating a sale of a certain tract of land in Matagorda county to W. C. Moore, in which tract was included that portion of the E. L. Holmes survey for which plaintiff sues herein, and that the defendant J. E. Pierce knew of such contemplated sale, and if you believe that the defendant A. P. Borden and Mamie P. Withers had said land surveyed, and that J. E. Pierce knew where the lines of said Holmes were located, and the said J. E. Pierce complained of such location, and if you believe that subsequently A. P. Borden and J. E. Pierce agreed upon a resurvey of said survey, and that they agreed that, if such resurvey should determine the true location of the Holmes survey to be in the position as shown by the first survey, J. E. Pierce should pay for such survey, but the location should be determined to be in another and different position, and if you further believe that such resurvey determined the location of the said Holmes survey to be in the same position in which it was located by the first survey, and if you believe that said J. E. Pierce, being informed of the result of the second survey, then paid for such survey, and made no protest against same, either to the said A. P. Borden or Mamie Withers or to W. C. Moore, but permitted said sale to be made to said W. C. Moore, and permitted said Moore to pay for same, then you are charged that the said J. E. Pierce is now estopped from denying the correctness of said resurvey." There is an evident omission of a clause in this charge as copied in the record; but, in view of the testimony as to the agreement between Borden and Pierce, it can be readily supplied. The verdict returned by the jury is as follows: "We, the jury, find for plaintiff as prayed for in original petition. This decision is arrived at by special charge as to estoppel. S. M. Jeter, Foreman."

Appellant complains of the charge above set out on the ground that the issue of estoppel was not raised, either by the pleading or the evidence in the case. There is no merit in the objection that estoppel was not pleaded. Plaintiff not...