Ragsdale v. Robinson
| Decision Date | 01 January 1877 |
| Citation | 48 Tex. 379 |
| Parties | PETER C. RAGSDALE v. J. A. ROBINSON. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Smith. Tried below before the Hon. J. L. Henry, special judge.
March 23, 1874, Peter C. Ragsdale brought an action of trespass to try title against Julius A. Robinson for one-third interest in 200 acres of land, part of the John W. Cauble 640 acres headright.
The defendant pleaded not guilty, and limitation of three and five years.
The parties also pleaded specially their titles, the various amendments covering about forty pages of the record.
On the trial, plaintiff read patent to John W. Cauble for 640 acres of land, and a deed from Cauble to plaintiff for one-third interest therein.
The defendant filed his deeds relied on for title, with notice to plaintiff, September 10, 1874, and on the trial read, over objections, the following deed:
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¦“THE STATE OF TEXAS, ¦)¦
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¦County of Guadalupe. ¦)¦
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Know all men by these presents, that I, Peter C. Ragsdale, in consideration of $200 to me in hand paid by Nathaniel Killough, the receipt is her??by acknowledged, have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release unto the said Killough my interest, th?? following ?? of land, situated in Smith county, near the southwest corner, and known as a part of the headright of John Cauble: Beginning at a post on the west boundary-line of a seven-league survey, a post from which a red-oak bears N. 36° W. 1 varas; another varas S. 32°>>>>>> W. 1 varas; thence north 832 varas, to a post from a willow-oak bears N. 3° E. 2 2/10 varas; another bears N. 49 E. 5 2/10 varas; thence north and east so as to include two hundred acres of land, ( the other part of the above survey having been sold to Gilliland,) to the beginning, containing 200 acres of land, together with all and singular the rights and appurtenances to the same belonging; to have and to hold all and singular the premises above mentioned unto the Killough, his heirs and assigns, forever. And I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend the title to one-third of the above-named tract of land, it being all my interest in the same, unto the said Nathaniel Killough, his heirs and assigns, against every person lawfully claiming the same or any part of it.
Witness my hand and seal, using a scrawl for seal.
Signed, sealed, and delivered in presence of __________, December 10, A. D. 1862.
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¦Attest:¦PETER C. RAGSDALE.” [SEAL.]¦
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The deed had been duly acknowledged and recorded. To the deed, it was objected: (1) It does not describe the land sued for; and (2) it is unintelligible, and describes no land whatever.
Before the trial, the plaintiff filed an affidavit, denying the execution of the deed.
Defendant then read the will of Nathaniel Killough; deed by executors of Killough to Jefferson Wallace, of date February 5, 1867, for 200 acres of the John Cauble 640 acres headright; (describing the tract as “beginning at the southwest corner of said survey; thence N. 832 varas; thence N. 45°> E. 594 varas; thence E. 592 varas, to a stake from which a hickory six inches in diameter bears S. 24° E.; thence S. 1,232 varas, to a stake on the south boundary-line, with bearing-trees; thence W. 982 varas, to the beginning;”) deed from Wallace to J. F. Rosbury and defendant, for the same land, September 20, 1867; and deed from Rosbury to defendant, November 12, 1871.
Defendant then read copy of a deed from Peter C. Ragsdale, plaintiff, to John H. Gilliland, administrator of the estates of E. H. and Margaret Gilliland, of date December 5, 1870, for all his interest in said John Cauble survey.
A. J. Glaze, for defendant, testified that Wallace traded a tract of 200 acres to Killough for the land in controversy, and entered upon it in 1862 or 1863, and had lived on it until his sale to Rosbury and Robinson, in 1867. Witness knew the land in controversy. All the balance of the Cauble 640 acres survey was sold by plaintiff to E. H. Gilliland in 1859, and a deed therefor was made to John H. Gilliland several years after the war. Witness testified to conversations of plaintiff touching the sale to Gilliland. The 200 acres in controversy does not touch the seven-league grant. It is in the southwest corner of the Cauble survey. Robinson had held possession of the land, from Wallace's sale, in 1867, up to the trial.
Plaintiff, in rebuttal, called Ira Ellis, who testified that he was a surveyor. After examining the map of Smith county and the field-notes set out in the petition, he testified that it being in the southwest corner of the Cauble survey, and by following the field-notes, it would not touch the seven-league grant. After examining the deed from Ragsdale to Killough, he stated that to follow out the field-notes, the land would fall on the seven-league survey, and did not contain any portion of the Cauble survey. That a tract with the beginning corner on the west line of the seven-league survey, would not describe land situated in the southwest corner of the Cauble survey.
“He stated, also, that in the deed from Ragsdale to Killough, the name Killough and the description (that part in italics above) were in different handwriting and different ink from the balance, which was in Ragsdale's handwriting.
A deed to land which ran off on the seven-league survey, could not be a part of the Cauble survey. The first call East in the deed would not be a call for land on the Cauble survey.
If a man had sold 440 acres off and out of a 640-acre tract, leaving only 200 in the southwest corner, in order to sell 200 acres of this survey he would have to sell out of the southwest corner. The deed, then, was a misdescription.”
Below is a sketch showing the Cauble survey, with reference to the seven-league grant. The surveys are in southwest part of Smith county.
Plaintiff testified that he had located the John W. Cauble 640-acre tract, and that Cauble made him a deed to an undivided one-third interest for his services; that on receiving a letter, he wrote a deed to his undivided one-third interest in 200 acres, to be taken off the north end of the Cauble tract, to begin in the western boundary of the Querado seven-league survey, and at the northern corner of the Cauble survey; thence with its northern and western boundary to a point, so that by running due east to the western line of the seven-league survey, and thence north to the beginning, would contain 200 acres; that he left blanks for courses and distances and bearing-trees, and for the name of the grantee; that he acknowledged the deed in Guadalupe county, and forwarded it to Killough; that he fixed the beginning corner on the western boundary of the seven-league survey, and northern corner of the Cauble survey; that after Killough's death he sought to regain the deed, searching among his papers, and in the clerk's office at Tyler; that he had paid taxes continuously on the land. Witness also testified to conversations with Robinson, which were in turn denied by Robinson.
On the trial, the fourth interrogatory to Ragsdale, and the answer, were excluded on exceptions, as follows:
After the testimony of Ellis had been introduced, plaintiff moved to exclude the deed from Peter C. Ragsdale to Killough, because it described land different from that sued for.
April, 1877, the case was tried on the above testimony.
The charge of the court is sufficiently indicated in the opinion.
Verdict and judgment were for the defendant, and Ragsdale appealed.
Whitaker & Robinson, for appellant.
I. We objected to the introduction in evidence of the instrument purporting to be a deed from plaintiff to N. Killough, because the same did not describe the land in controversy, nor did it describe any land; and, after the introduction of Ira Ellis, moved to exclude the deed, upon the ground that it did not describe the land in controversy, as shown by the testimony. These motions were not only overruled, but the judge, in his charge, gives not one word of instruction upon this very important issue. As sustaining the exceptions referred to, we would not only urge that unless this instrument actually calls for the land in controversy, or, by the legal rules of construction, could be made to do so, then it would constitute no muniment of title in this suit; but, in the second place, if it describes no land, or so inaccurately that it cannot be identified, which is evident on the face of the instrument, then we invoke the law--that if land be so inaccurately described as to render its identity wholly uncertain, the grant is void.
II. As to the manner of construing this instrument.
1. Under this head, we complain of the error of the court in excluding that part of the plaintiff's deposition wherein he states that h...
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